Federal Court of Australia

Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to raise on appeal grounds 2 and 3 as pleaded in the notice of appeal.

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs of and incidental to the appeal, to be fixed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Mr Frederick Chetcuti (Mr Chetcuti), the appellant, was born in the then British Crown Colony of the Island of Malta and its Dependencies on 8 August 1945. He arrived in Australia on 31 July 1948, shortly before his third birthday. Here he has remained ever since. Mr Chetcuti has never become an Australian citizen. As a consequence of amendments made to the Migration Act 1958 (Cth) (the Act), Mr Chetcuti was deemed to hold, on and from 1 September 1994, an absorbed person visa (visa).

2    On 25 June 1993, Mr Chetcuti was convicted in the Supreme Court of New South Wales of the murder of his former wife on 18 September 1991. He was sentenced to imprisonment for 24 years. On 9 May 2010, while serving that sentence of imprisonment, Mr Chetcuti committed the offence of assault occasioning actual bodily harm against a fellow prisoner. In respect of that offence, he was convicted 6 April 2011 in the Local Court at Burwood, New South Wales of and sentenced to two years imprisonment, to be served concurrently with his then subsisting sentence for murder.

3    A sequel to Mr Chetcuti’s criminal conduct and related sentences has been the making of a number of Ministerial decisions, or purported decisions, under s 501 of the Act and related challenges by Mr Chetcuti in this Court to the legality of those decisions. There are also separate proceedings in the High Court of Australia concerning whether, in the circumstances, Mr Chetcuti is an alien and whether the Act had any application to him at all at the time of the Ministerial decisions. The present proceedings were conducted on the assumption, without prejudice to the issue before the High Court, that the Act had valid application to him.

4    The learned primary judge offered an accurate summary, from which the following is derived, of the course of Ministerial decision-making and related proceedings in this Court concerning Mr Chetcuti’s visa.

5    On 28 March 2017, shortly before Mr Chetcuti’s sentence for murder was due to expire, the then Minister for Immigration and Border Protection, acting, or at least purporting to act, under s 501(2) of the Act, cancelled the visa. This decision was quashed by an order of this Court made by consent on 14 August 2017. Later that day, the then Minister for Home Affairs, acting, or at least purporting to act, under s 501(3) of the Act, cancelled the visa. This decision was quashed by the Full Court on 2 July 2019: Chetcuti v Minister for Immigration and Border Protection (2019) 270 FCR 335.

6    On the same day that this second judgment of the Full Court was published, the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) cancelled the visa under s 501(3) of the Act (cancellation decision).

7    The evidence before the primary judge in the form of the written record of the cancellation decision indicates that the Minister commenced consideration of a departmental submission and attachments at 1.00 pm on 1 July 2019. That submission had been prepared on a contingency basis, given the then pending judgment of the Full Court. Other evidence at trial indicated, and his Honour found, that the cancellation decision was made at about 2.56 pm on 2 July 2019. The learned primary judge found that, in all, over this period the Minister took an hour to consider the material and make his decision.

8    The learned primary judge also found that, at 12.30pm on 2 July 2019, nearly two and a half hours prior to the cancellation decision being made, Mr Chetcuti, through his legal representative, provided a submission and further material (further submission) to the department and requested that the material be considered, should any further consideration be given to cancelling Mr Chetcuti’s visa following the publication of the Full Court’s judgment. His Honour also found that, at 3.45 pm on 2 July 2019, Mr Chetcuti was notified of the cancellation decision by an email provided to his legal representative.

9    In the original jurisdiction and as his originating application came to be amended, Mr Chetcuti relied on the following grounds to challenge the cancellation decision:

(a)    The Minister erred in law in that he misunderstood the operation of s 501(3) of the Act by believing it precluded him from giving effect to the rules of natural justice by inviting Mr Chetcuti to make submissions or provide further material.

(b)    The Minister erred in law by failing to have regard to the most up to date material at the time of his decision to cancel Mr Chetcuti’s visa.

(c)    The Minister erred in law by failing to give proper, genuine and realistic consideration to the decision to cancel Mr Chetcuti’s visa.

On each of these grounds, he failed with the consequence that his application was dismissed, with costs.

10    Mr Chetcuti has now appealed against that order of dismissal. His grounds of appeal are:

1.    The learned primary judge erred by failing to find that the Minister misunderstood the operation of s 501(3) of the (the Migration Act 1958 (Cth)) (the Act) by believing it precluded him from giving effect to the rules of procedural fairness.

2.    The Minister was precluded from re-exercising the power to cancel the appellant’s visa under s 501 of the Act in circumstances where a previous Minister, the Hon. Chris Bowen MP, had decided not to cancel the appellant’s visa on 22 March 2012, and no relevant new fact or circumstance had arisen since that time [2012 decision].

3.    Alternatively, the Minister failed to have regard to a mandatory relevant consideration, being the manner in which any relevant new fact or circumstance bore on the re-exercise of the Minister’s discretion to cancel the appellant’s visa under s 501 of the Act.

11    As can be seen, and as was frankly conceded on Mr Chetcuti’s behalf on the hearing of the appeal, grounds 2 and 3 raise issues which were not raised in the original jurisdiction by the pleaded grounds of review. The inspiration for ground 2 was submitted to have arisen after the orders challenged had been made and as a result of the High Court’s judgment earlier this year in Minister for Immigration and Border Protection v Makasa (2021) 95 ALJR 117 (Makasa).

12    The Minister opposed the granting of leave to raise these new issues but accepted that they did not entail any evidentiary embarrassment to him. He also raised by notice of contention a challenge to the conclusion, at [50], of the learned primary judge that any error in respect of the Minister’s asserted misunderstanding as to the operation of s 501(3) of the Act would have been material.

13    When an issue is raised for the first time on appeal, evidentiary embarrassment to another party can, and often will, provide a sufficient basis to refuse leave for the new issue to be raised. Ordinarily, questions of fact are for determination at trial in the exercise of original jurisdiction, not on an appeal in the exercise of appellate jurisdiction. Another consideration, always relevant but not necessarily determinative, is that there should be no encouragement of a view that parties may save up issues instead of raising them at trial for determination. For all that, there can be cases where the interests of justice demand that, though this usual position has not been observed by a party, an issue raised for the first time on appeal should attract a grant of leave and be determined. An exemplar of this type of case can be where a point of law raised by the facts has subsequently been determined and where, had it been earlier decided, the point may have led to a different outcome in law on those facts. Makasa was said to carry such a ramification for the present case.

14    In the circumstances, we consider that the interests of justice in the present case are best served by granting leave to Mr Chetcuti to raise ground 2 and by dealing with that ground on the merits. Ground 3 is dependent on the correct characterisation of the power exercised by the Minister in making the cancellation decision. It, too, is better dealt with on the merits. Mr Chetcuti ought also to have leave to raise that ground.

Ground 2

15    Makasa decides that, after the Administrative Appeals Tribunal (Tribunal) has made a decision under s 501(2) of the Act in reviewing afresh a decision made by a delegate of the Minister, neither the Minister nor a delegate may again make a decision under s 501(2) in respect of the individual concerned unless, in terms of s 33(1) of the Acts Interpretation Act 1901 (Cth), “occasion” has arisen. In effect, if the status quo as at the time when the Tribunal made its decision continues to obtain, there is no “occasion” for the re-exercise of the statutory power.

16    In making the cancellation decision, the Minister stated that he was exercising the power conferred under s 501(3), not s 501(2), of the Act. This would not prevent argument by analogy in reliance on Makasa that the re-exercise of a power under s 501(3) was not possible, because no fresh “occasion” had arisen, but that argument requires proof of its underlying factual premise. That factual premise is that the earlier decision was either one not to exercise any power under s 501 of the Act at all in respect of Mr Chetcuti or at least one not to exercise the power conferred by s 501(3). The onus of proving that factual premise lay on Mr Chetcuti: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, at [39], per Kiefel CJ, Gageler, Keane and Gleeson JJ and the authorities cited by their Honours at footnote 37.

17    The difficulty for Mr Chetcuti is that the evidence as to the 2012 decision is consistent only with a conclusion that, on that occasion, the then Minister had decided by reference to s 501(2) of the Act alone not to cancel the visa on character grounds (although the departmental advice to Mr Chetcuti of 22 March 2012 is non-specific, the only provision referred to in the accompanying pro forma acknowledgement of receipt is s 501(2)). We understood this to be accepted by Mr Chetcuti’s counsel. There is no evidence that, in 2012, the Minister had turned his mind at all to s 501(3) of the Act. Mr Chetcuti has not therefore proved the requisite factual premise.

18    Ground 2 is also dependent upon affording s 501 of the Act a particular construction. In oral submissions on his behalf, there was a tendency to obscure the construction issue by referring to s 501 in a compendious way, assuming that it was the repository of but one grant of power. Given the failure to discharge the onus of proof just mentioned, to make good any application by analogy of Makasa it would be necessary to make good that assumption.

19    If the assumption as to the meaning of s 501 of the Act ever had any foundation, it was prior to the repeal and replacement of that section by Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) (1998 Amendment Act). Although there have been several amendments to s 501 since then, its essential, presently material, textual structure and context as then substituted by the 1998 Amendment Act remain. The current text of s 501 does not admit of the construction that there is but one grant of power to the Minister (or delegate), the exercise of which may be enlivened on one or more bases.

20    At present, s 501(1), (2), (3), (3A) and (3B) of the Act provide:

s 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).

In relation to visa cancellation, this text admits only of the construction that s 501(3) contains a grant of power which is separate and distinct from a power separately conferred by s 501(2) of the Act.

21    Further, the criteria which may, as between s 501(2) and s 501(3) of the Act, enliven a power to cancel are not, as the Minister correctly submitted, of a nature which would admit, as was apparently contended for Mr Chetcuti, of an application of what has come to be termed, by reference to the root authority, Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, at 7, the “Anthony Hordern principle” of statutory construction. As enunciated by Gummow and Hayne JJ in their joint judgment in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, and after a consideration of subsequent authority, the principle was stated, at [59], to be as follows:

59    Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

[Footnote references omitted]

22    Suffice it to say, as a matter of construction, s 501 of the Act does not confer but one visa cancellation power. It confers separate visa cancellation powers, the enabling criteria for the exercise of which overlap but which are not identical. It is not apparent that the exercise of one is intended to restrict the exercise of the other.

23    Contrary to a submission made for Mr Chetcuti, that position is reinforced, not contradicted, by s 501A of the Act. In relation to visa cancellation, the provision made by s 501A for the setting aside by the Minister, acting personally, of an earlier, non-adverse decision is expressly textually keyed to a decision by a delegate or the Tribunal, “not to exercise the power conferred by s 501(2) to cancel a visa that has been granted to a person”. All that s 501A has to say about s 501(3) is the self-evident position that the power conferred by that subsection is unaffected by the particular regime for which s 501A provides.

24    Ground 2 therefore fails.

Ground 3

25    As was correctly recognised in submissions, ground 3 is a slave of ground 2 in relation to whatever is the true construction of s 501 of the Act. If the construction promoted for Mr Chetcuti in relation to ground 2 failed, so must ground 3. That is because, if, as between s 501(2) and s 501(3), separate powers are conferred, the Minister did not “re-exercise” any power when making the cancellation decision. For reasons already given, s 501(3) of the Act confers a separate power. Ground 3 must therefore fail.

Ground 1

26    The learned primary judge correctly identified, at [19], that whether the Minister misunderstood the operation of s 501(3) of the Act was a question of fact. Once again therefore, the onus of proving that fact fell on Mr Chetcuti. This, too, was correctly understood by his Honour, at [26].

27    Responding to the way in which the case was argued before him, the learned primary judge closely analysed the Minister’s reasons and the procedural course of conduct within his department following the transmission and receipt of the further submission on behalf of Mr Chetcuti, up to the time when the Minister made his decision. His Honour found that it was more likely than not that, prior to the making of the cancellation decision, the Minister was aware of the further submission but also that it was unlikely and not proved that the Minister “would not have correctly understood that he could, but was not obliged, to take the further submission into account”, at [48].

28    The process of reasoning which led his Honour to this conclusion was certainly evaluative but it entailed no exercise of a judicial discretion. Nor did his Honour enjoy some special advantage at trial denied in an exercise of appellate jurisdiction. No oral evidence was called either from the Minister as to what he knew and understood, or anyone else as to what was briefed orally to the Minister (if anything). In relation to the reasons of the primary judge, there is occasion for respect and weight to be given but not for any restraint or deference in relation to his Honour’s findings. Rather, this Court’s duty on an appeal by way of rehearing is as stated by the majority in Warren v Coombes (1979) 142 CLR 531, at 551:

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

Later in their judgment in that case, the majority stated, at 552:

The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.

29    It is certainly possible to find other cases in which the Court has been similarly pressed to draw an inference that the Minister misunderstood what s 501(3) of the Act permitted in terms of any consideration of a gratuitously made submission by or on behalf of a visa holder: see, for example, Burgess v Assistant Minister for Home Affairs (2019) 271 FCR 181 and Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 and, to like effect on its facts in relation to s 501BA(2), Ibrahim v Minister for Home Affairs (2019) 270 FCR 12. Reference to such cases featured in submissions. They are really no more than authority for what they decide on particular facts and apt to distract from the task of determining the facts of the present by reference to the evidence in the present. In this regard, an observation made by Windeyer J (McTiernan J agreeing) in Teubner v Humble (1963) 108 CLR 491, at 503, is of enduring relevance:

I should add that we were referred by counsel to a number of decisions in other cases of road accidents. But decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application ...

30    There is another cautionary note which ought also to be heeded. At common law, there is no general right to be furnished with reasons in respect of the making of an administrative decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. Where such reasons are provided, either in fulfilment of a statutory obligation or voluntarily, it is only natural that the person affected by the decision, particularly if it is adverse, will closely scrutinise them to see if the decision admits of challenge. If, however, it comes to be alleged that the decision is attended with jurisdictional error, it is always a mistake for a court to succumb to the temptation of over-analysis of an administrator’s reasons to the end of discerning error. The familiarity of encounter with the emphatic endorsement by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, of the observation made by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, that a reviewing court must not scrutinise such reasons narrowly and with an eye for error, must translate into a principled restraint on the part of the judiciary in relation to the proof of jurisdictional error by reference to an administrator’s reasons. If it were otherwise, the informative purpose of reasons would be apt to be subverted by the prolixity of an endeavour on the part of an administrator to anticipate and explicitly negate suggestions that a consideration was or was not taken into account or understanding was or was not held, no matter whether raised on the facts of a given case or not. Further, for the judiciary to expect such an endeavour would make the task of public administration impossible. Thus, a reviewing court must be astute not to infer jurisdictional error from what that administrator has not said in the reasons given: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, at [25], per French CJ, Bell, Keane and Gordon JJ.

31    The process of reasoning which led the learned primary judge to his conclusion that it was unlikely that the Minister would not have understood that he could but was not obliged to take the further submission into account is not attended with any particular error. However, for the reasons given, we are obliged, in the circumstances of the present case, to reach our own conclusion in order to determine whether the judgment below was wrong.

32    The process of Ministerial consideration bridged two days. It is inherently likely, from the Ministerial submission practice revealed, if not an uncontroversial given, that the written submission presented with a decision-making matrix and related documents was prepared and submitted to the Minister prior to the receipt of the further submission.

33    The so-called “binary choice”, omitting explicit understanding of an ability but not obligation to take into account a gratuitous submission, said to be revealed by the Ministerial submission and related Ministerial reasons does no more than reflect a position which was at most a hypothetical but unanticipated possibility at the time of their preparation. It is necessary to state, “at most”, because it is obvious from internal departmental emails after the departmental receipt of the further submission that that receipt was completely unanticipated – “Please note, this was not anticipated as Mr C has not engaged with the Department.”: email by Ms Anastasia Rigas, A/g Manager – Special Interest Team in the Immigration and Citizenship Services Group of the department at 1:57 pm on 2 July 2019, forwarding the further submission to Mr Nigel Muir, Director of the department’s National Character Consideration Centre. So there was no need at all on or prior to 1 July 2019 to make any reference to any such understanding. The adoption of reasons which make no reference to such an understanding is neutral as to what understanding was held or, if held, held in error.

34    It is obvious from internal departmental emails that the further submission was received and its potential significance, in terms of offering a contemporary perspective on Mr Chetcuti’s health and other personal circumstances, as well as the Minister’s ability to consider the same, was understood by officers within the department, up to and including the rank of a relevant Assistant Secretary. These facts are consistent with the inference drawn by the primary judge, at [41], that, prior to making the cancellation decision, the Minister had been appraised of the existence of the further submission and provided with at least an outline of the content of that submission. That inference was embraced, not challenged, by counsel for Mr Chetcuti in oral submissions. Neither, unsurprisingly, was its correctness questioned by counsel for the Minister.

35    Assuming that the Minister was, as the primary judge found, and as was common ground on the appeal, aware of the existence of further submission, Mr Chetcuti’s case as to error of Ministerial understanding as to it being possible to consider that further submission rises no higher than error by inferential omission. Yet, fairly read, the reasons and the related Ministerial submission are, as already stated, just neutral. Further, in light of the knowledge and understanding about the further submission revealed by the contemporary, internal departmental emails mentioned, one cannot divorce any assumption or inference of Ministerial awareness of the further submission from an assumption or inference, as, at [48], the primary judge drew, of an expressed understanding on the part of those who may have dealt with the Minister personally that it was open but not obligatory for the Minister to consider the further submission. In that circumstance, the Ministerial decision and related adoption of draft reasons were just a reflection of a choice not to consider a submission, the Minister was aware it was not obligatory to consider, but accepted it was possible to consider. In circumstances where the orders made by the Full Court carried with them the prospect, absent a prompt, personal decision by the Minister, of an obligation to release Mr Chetcuti from immigration detention, it is not hard to see how such a Ministerial choice might have been made. Yet further, given the expressed knowledge of, and understanding about, the further submission in the internal departmental emails, there is no warrant for drawing an inference as grave that advice that it was possible but not obligatory to consider the further submission was deliberately withheld from the Minister (s 140(2), Evidence Act 1995 (Cth)). The point is that Mr Chetcuti carried the onus of establishing the factual foundation for his asserted jurisdictional error. He did not have to prove the facts to demonstration, only on the balance of probabilities. Proof to that standard was not achieved just by pointing to reasons which were neutral. Especially that was so when there is an inference open from the surrounding circumstances which makes it at least just as likely that the Minister was aware it was possible to consider the further submission but chose not to consider it.

36    Mr Chetcuti has failed to discharge the onus of proving the underlying factual premise upon which ground 1 depends.

37    As the appeal must be dismissed, it is unnecessary to consider the issue sought to be raised by the notice of contention.

Associate:    

Dated:    10 June 2021