Federal Court of Australia

Vargas v Minister for Home Affairs [2021] FCAFC 162

ORDERS

THE COURT ORDERS THAT:

1.    The Notice of Appeal dated 14 April 2021 be dismissed.

2.    The Notice of Contention dated 10 May 2021 be dismissed.

3.    The appellant pay the respondent’s costs, not including the respondent’s costs relating to the Notice of Contention, such costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant, Mr Mendieta Vargas, appeals from a judgment of a single judge of this Court delivered on 25 March 2021. The primary judge dismissed an application for judicial review of the Minister for Home Affair’s decision to set aside a decision of the Administrative Appeals Tribunal, made under s 501(3A) of the Migration Act 1958 (Cth) to revoke the cancellation of his partner visa, and instead to cancel that visa pursuant to s 501BA(2) of the Migration Act.

2    This appeal is concerned with four issues: 1. whether the Minister’s choice not to afford Mr Mendieta Vargas natural justice was legally unreasonable; 2. whether the Minister’s statement that he noted ‘with concern’ a particular conclusion drawn by the Tribunal was irrational; 3. whether the Minister considered factors pertaining to the risk posed by Mr Mendieta Vargas in a meaningful way; and 4. whether the evidence given, and submissions made, to the Tribunal by Mr Mendieta Vargas were mandatory relevant considerations in the exercise of the power under s 501BA(2).

3    There is also a preliminary issue raised as to the competency of the first ground of appeal on the basis that, by reason of s 476A(1) of the Migration Act, the Federal Court has no jurisdiction to review the choice of the Minister not to afford Mr Mendieta Vargas natural justice in exercising the power in s 501BA(2) of the Act.

4    For the reasons below, the challenge to jurisdiction cannot succeed and the appeal must be dismissed.

Background

5    As recorded in the Reasons of the primary judge, Mr Mendieta Vargas is a citizen of the Republic of Colombia who arrived in Australia in August 2012. He was granted a partner visa on arrival.

6    On 6 June 2018, Mr Mendieta Vargas was convicted in the District Court of Queensland on 10 counts of domestic violence against his former spouse and 20 counts of fraud. In respect of the domestic violence offences, he was sentenced to three years’ imprisonment, suspended for a period of five years after he had served 12 months. At the time of offending, he was 22 years of age.

7    On 6 August 2018, a delegate of the Minister cancelled Mr Mendieta Vargas’ visa as required by s 501(3A) of the Migration Act. It is not in dispute that Mr Mendieta Vargas did not pass the character test in s 501(3A)(a)(i) of the Migration Act, because of the operation of sub-s (6)(a) (substantial criminal record), on the basis of sub-s (7)(c) (sentenced to a term of imprisonment of 12 months or more).

8    Mr Mendieta Vargas sought revocation of that decision on 7 August 2018, and on 18 June 2019, a delegate of the Minister decided not to revoke the cancellation decision. Mr Mendieta Vargas sought review of that decision in the Tribunal. On 11 September 2019, the Tribunal set aside the decision of the delegate and Mr Mendieta Vargas’ visa was reinstated that day. He was also released from immigration detention. The Tribunal’s reasons record:

IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION OF THE APPLICANT’S VISA?

182. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant passes the character test or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I find there is another reason for me to revoke the cancellation of the Applicant’s visa.

183.    In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. With regard to the weight allocable to each of these Primary and Other Considerations, I find as follows:

•    Primary Consideration A [Protection of the Australian Community] weighs moderately, but not determinatively, in favour of non-revocation;

•    Primary Consideration B [the Best Interests of Minor Children in Australia] weighs strongly in favour of revocation and outweighs the weight I have allocated to Primary Consideration A;

•    Primary Consideration C [the Expectations of the Australian Community] is of neutral weight;

•    Other considerations (a), (c) and (d) are of either neutral weight or no relevance to this consideration;

the combined weight of Primary Consideration B and Other Consideration (b) [strength, nature and duration of ties] favouring revocation outweigh the combined weight of the remaining Primary Consideration A and Other Consideration (e) [Extent of Impediments if Removed] which favour non-revocation;

•    a holistic application of the considerations in the Direction to the evidence therefore favours exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa.

184.    Consequently, I find that there is another reason to revoke the original decision to cancel the Applicant’s visa.

9    On 16 September 2019, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs requested the Department of Home Affairs to prepare a submission for him to consider exercising his power under s 501BA of the Act.

10    On 12 February 2020, the Minister set aside the Tribunal’s decision and cancelled Mr Mendieta Vargas’ visa pursuant to s 501BA(2) of the Act on the basis that the cancellation of his visa was in the national interest. The Minister’s reasons record:

114.    I find that the considerations favouring non-cancellation in particular the best interests of the affected children treated as a primary consideration, and Mr MENDIETA VARGAS’ ties to Australia and the hardship to him and his family members, are outweighed by the national interest considerations referred to above and I have decided to exercise my power under s 501BA of the Act to set aside the original decision of the Administrative Appeals Tribunal of 11 September 2019 and to cancel Mr MENDIETA VARGAS’s Class BC Subclass 100 (Partner) visa.    

Application for judicial review

11    Before the primary judge, Mr Mendieta Vargas advanced four grounds of review:

1.    The Minister’s refusal to afford [Mr Mendieta Vargas] natural justice was unreasonable.

2.    The Minister’s finding that [Mr Mendieta Vargas] ‘is a threat to all women’ is a finding that is illogical, irrational or unreasonable because it was one that was not open on the evidence, and/or one for which there was no rationally probative evidence, and/or one reached on an assessment of only some of the evidence and submissions available to him.

3.    The Minister failed to apply any active intellectual process to the matters that were set out at [45]-[68] of his reasons.

4.    The Minister failed to take into account the mandatory relevant considerations of the evidence and submissions before the Tribunal in making its anterior decision.

12    The Minister raised the same objection to jurisdiction in respect of the first ground of review as is raised in this Court.

13    The primary judge dismissed the application for judicial review but did not address the issue of jurisdiction.

Grounds of appeal

14    In this Court, Mr Mendieta Vargas agitates essentially the same grounds. He contends that the primary judge erred in:

Ground one

a.    failing to find that [the] Respondent’s refusal to afford the Appellant natural justice was unreasonable; and

b.    finding that such an argument ‘is not open’ ([33]).

Particulars

The Respondent’s decision to refuse to afford natural justice, in the process of, or leading up to, the exercise [of] his power in s 501BA(2) of the Migration Act 1958 (Cth), is not the subject of any evident and intelligible justification that is express nor can be reasonable inferred. The learned primary judge erred in failing to so find.

The learned primary judge erred in that he found at [32] of his reasons that the Respondent had made a ‘decision’ not to afford the Appellant natural justice, but at [33] that an argument of unreasonableness in respect of such a decision ‘is not open’.

Ground two

a.    holding that at [61] of the Respondent’s reasons, there was no finding of fact that the Appellant ‘is a threat to all women’ (the Proposition), and/or that ‘noting with concern’ the Proposition did not amount to doing so as part of the Respondent’s reasoning process ([42]); and

b.    failing to find that such finding of, or reasoning involving, the Proposition, is illogical, irrational or unreasonable because it was one that was not open on the evidence and/or one for which there was no rationally probative evidence, and/or one reached on an assessment of only some of the evidence and submissions available to him.

Particulars

(a) Properly construed, what the Respondent set out at [61] of his reasons was either a finding of the Proposition, or at least reasoning involving the Proposition and on the way or along the way to his decision. The learned primary judge erred in failing so to find.

(b) The Appellant had only committed offences against one woman (his ex-partner) and there was no evidence that the Appellant had ever threatened any other woman at any time in his life. The only forensic expert opinion before the Respondent as to the Appellant’s risk of re-offending was that it was in the ‘low category’.

(c) The Tribunal found, on the basis of submissions and evidence (including inferences drawn as to the Appellant’s genuineness from his oral evidence), being submissions and evidence available to the Respondent but not considered by him, that the Appellant ‘presents with a genuinely low risk of reoffending, both in a domestic violence context and more generally’.

Ground three

failing to find that the Respondent did not apply any active intellectual process to the matters that were set out at [45]-[68] of the Respondent’s reasons ([47]).

Particulars

The Respondent’s reasons disclose that the matters at [45]-[68] were only ‘noted’, ‘acknowledged’, asserted to have been given ‘consideration’, or were ‘taken into account’ or were the subject of ‘regard’, none of which constituted any active intellectual process.

Ground four

finding that the evidence and/or submissions before the Tribunal in making its anterior decision were not a mandatory relevant consideration for the Respondent ([53]).

15    By Notice of Contention filed on 10 May 2021, the Minister contends that the decision of the Federal Court should be affirmed on grounds other than those relied on by the Court. It is contended that Ground one should have been rejected by the primary judge on the additional bases that:

a.    the ground was incompetent, as the Respondent had contended in his notice of objection to competency filed on 13 November 2020;

b.    the Respondent’s choice not to afford natural justice to the Appellant did not involve the exercise of statutory power and could not be reviewed on the ground of legal unreasonableness;

c.    (to the extent that the primary judge did not so find) the Respondent’s choice not to afford natural justice to the Appellant was not affected by legal unreasonableness; and

d.    even if the Respondent’s choice not to afford natural justice to the Appellant was affected by legal unreasonableness (which the Respondent does not concede), any error was within jurisdiction, as section 501BA(3) authorised the Respondent to exercise the power in section 501BA(2) without affording natural justice to him.

Is Ground one incompetent for want of jurisdiction?

16    Section 5 of the Migration Act defines a ‘migration decision’ to mean:

(a) a privative clause decision; or

(b) a purported privative clause decision; or

(c) a non-privative clause decision; or

(d) an AAT Act migration decision.

17    Section 476A of the Migration Act provides:

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

a.    the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

b.    the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

c.    the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or

d.    the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal 1975.

(emphasis added)

18    A ‘privative clause decision’ is defined in s 474(2) to mean

a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

19    The Minister contends that the Federal Court’s original jurisdiction does not extend to the Minister’s choice not to afford natural justice. The Minister submits that a ‘decision’ not to afford natural justice in exercising power in s 501BA(2) is not a migration decision listed in any of s 476A(1)(a)-(d). In seeking to make good this contention, emphasis was placed on those authorities that have held that the words ‘in relation to’ in s 476A(1) ‘are not words of expansion’ – they are to be given ‘a circumscribed meaning’ such that except where expressly permitted by ss 476A(1)(a)-(d), ‘this Court does not have original jurisdiction to directly review the validity of a migration decision’: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [60]; Tang v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2013] FCAFC 139; (2013) 217 FCR 55 at [6].

20    The phrase ‘in relation to’ was considered by the Full Court in McHugh v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 385 ALR 485. Chief Justice Allsop (with whom Besanko J agreed at [74]) explained, at [15]:

The phrase “in relation to” has a meaning derived from Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651 at 662–663, esp [22] and [25].  Bodruddaza concerned s 486A (in Pt 8A), but the Full Court in Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at 57–58, esp [8] – [ 9], applied it to s 476A.  Tang has the support of Nettle J (sitting as a single Justice) in DBE17 v Commonwealth of Australia [2019] HCA 47; 266 CLR 156 at 164 [14]-[15]. From these authorities, and having regard to the terms of the Explanatory Memorandum for the Migration Litigation Reform Bill 2005 (Cth) discussed in Tang at 217 FCR 58 [8], the phrase “jurisdiction in relation to a migration decision” can be taken to be no wider than jurisdiction in public law remedies of direct judicial review of a migration decision. The phrase “in relation to” has no width or flexibility in this context beyond that. It does not include what might be called collateral attack upon a migration decision: Bodruddaza 228 CLR at 662 [22], such as a claim for false imprisonment available within jurisdiction under s 39B(1A)(c) and s 75(iii) of the Constitution by s 32(1) of the Federal Court of Australia Act 1976 (Cth): PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; 153 ALR 520 at 523–526 [6]-[13]. See also Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604; and DBE17 v Commonwealth [2019] HCA 47; 266 CLR 156.

21    As was the case in McHugh, the migration decision is a privative clause decision (made under s 501BA(2)) and it is therefore necessary to consider ss 474(2) and 474(3). A ‘decision’ (s 474 (3)), and so a ‘privative clause decision’ (s 474(2)), and so a ‘migration decision’ (s 5), for the purposes of s 476A(1) includes ‘conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation’ (s 474(3)(h)).

22    This ‘granularity’ of the concept of ‘decision’ provides the basis for concluding that the Minister’s choice not to afford natural justice prior to the making of the decision under s 501BA(2) amounts to a ‘migration decision’. The terms of s 476A(1)(c) mean that the Federal Court has jurisdiction in direct judicial review proceedings concerning that decision made personally by the Minister: McHugh at [14].

23    This case is different from the position in McHugh where the relevant ‘migration decision’ (being one to detain a person on the basis of knowledge or a reasonable suspicion of that person being an unlawful non-citizen), albeit a privative clause decision, was made under s 189(1) and so was not amenable to direct judicial review by the Federal Court, it not being a migration decision within the terms of s 476A(1): McHugh at [18]. The decision in this case is reviewable because it concerned a decision made by the Minister personally under s 501BA: McHugh at [17].

24    Grounds 1(a), (b) and (d) of the Minister’s Notice of Contention are not sustained. It is unnecessary to consider the third ground raised in the Notice of Contention as it is subsumed in the substantive consideration of Mr Mendieta Vargas’ grounds of appeal.

25    Turning then to the grounds of appeal raised by Mr Mendieta Vargas.

Was it legally unreasonable to refuse to afford natural justice?

26    As to Ground one, the Minister contends that, properly understood, Ground one requires this Court to go behind the legislative choice embodied in the enactment of s 501BA(3), through the imposition of an implication of reasonableness in the Minister’s choice as to whether to afford natural justice. As both parties accepted, the appellant’s challenge was not to the reasonableness of the substantive exercise of power but to the Minister’s anterior choice or determination not to afford natural justice.

27    Section 501BA of the Migration Act provides:

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under s 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.

28    Section 501BA of the Migration Act sits within a suite of provisions concerned with the cancellation, or revocation of a cancellation, of a visa on character or national security grounds. In Minister for Home Affairs v Brown [2020] FCAFC 21; (2020) 275 FCR 188, Allsop CJ, Kenny, Besanko, Bromwich and Banks-Smith JJ explained the nature of these provisions in the following terms:

27.    In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Gleeson CJ and Gummow J said (at [61]) that “the powers conferred on the Minister by ss 501 and 502 form part of a statutory scheme which involves a complex pattern of administrative and judicial power, and differing forms of accountability”. This statement is no less true about the form of the legislation today than it was in relation to the form of the statute in 2001 when their Honours were writing. 

28.    One aspect to be borne in mind in construing the interlocking provisions of ss 501, 501A, 501B, 501BA, 501C and 501CA is the wide variety of circumstances to which the sections may apply. Sometimes, but not always, the decision will involve potentially devastating consequences for a person or persons. It was in the context of such a body of circumstances that the remarks were made in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423 at [3]. The provisions provide for important powers that touch upon the protection of the Australian community, but that also affect the lives of ordinary people living in, or as part of, the Australian community who do not have the status of citizenship. 

29.    The wide variety of circumstances to which these sections might apply is a factor that tends to the necessary flexibility of the provisions, but only to the extent the statute permits. An unnecessarily rigid interpretation of the sections may not only impede the smooth and sensible administrative operation of the sections, but also inhibit the reasonable re-examination of circumstances of a person’s situation in the realistic and humane application of the power by the Minister and his or her delegate. 

30.    That said, for a person to have his or her immigration status uncertain and subject to the discretion of the Minister, for an indeterminate period may create, in particular circumstances, an unsatisfactory and potentially inhumane contingency about that person’s life in the Australian community. 

31.    As can be seen from a reading of ss 501–501CA, there is a complex web of powers providing for the refusal or cancellation of visas by the Minister (personally or by the delegate), and for the revocation, setting aside and review of decisions. Certain of these decisions may be made by a delegate of the Minister or by the Minister personally, while others may only be made by the Minister personally. In the former case, but not the latter, provision is made for merits review by the Tribunal. In the latter case, judicial review for legality is available.

29    The construction of s 501BA(2) was considered by the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12. In that case, the Minister had proceeded on the understanding that he was in fact precluded from inviting the appellant to make a submission before considering the exercise of the power in s 501BA(2). The Full Court said (at [22]-[23], [26]):

22. As already noted, ss 501BA(3) and 501(5) stand in contrast with s 501CA(3).While s 501CA(3) requires that a person who may be the subject of an order under that section be given the opportunity to make representations to the Minister, each of ss 501BA(3) and 501(5) provide expressly that the rules of natural justice do not apply to the decisions to which they refer.

23. However, on its face, the effect of s 501BA(3) is only to remove any obligation on the Minister to apply the rules of natural justice when making a decision under subs (2). It does not oblige the Minister to make the decision without applying those rules.

…

26. …[s 501BA(3)] is simply an incident of the power vested in the Minister by s 501BA(2). That being so, it is not “extra-statutory”. Section 501BA(3) is to be understood as removing any obligation on the Minister to afford natural justice when exercising the power under s 501BA(2), but not as prohibiting the Minister from doing so. It is for the Minister to decide, within the limits of the Act, how he or she will go about making the decision contemplated by s 502BA(2).

30    In considering whether the Minister’s misunderstanding of s 501BA(3) amounted to jurisdictional error, the Full Court said (at [62]):

To our minds, the fact that the Assistant Minister had not been bound, by reason of s 501BA(3), to invite further submissions, is not decisive. Framing the issue in that way tends to focus attention on whether the Minister had failed to do a positive act required by the Act. The submission of the appellant involves a different claim, namely, that in forming the state of satisfaction contemplated by s 501BA(2), the Assistant Minister had been required to understand that he was not, by the terms of the Act, precluded from obtaining further submissions from the appellant. If the Assistant Minister had had that understanding of the effect of the Act, then (subject to issues of legal unreasonableness), a decision on his part not to seek further submissions or a failure to advert to that question at all would not have amounted to jurisdictional error.

31    Unlike the circumstances in Ibrahim, the Minister was not ignorant of the choice he was afforded by s 501BA(3). The Minister said:

[9]    Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). While this means that I am not required to apply the rules of natural justice when making a decision under s501BA(2), by giving the affected person an opportunity to be heard before making the decision, I am aware that s501BA(3) does not prohibit me from affording such an opportunity.

[10]    In this case, I chose to proceed without giving Mr MENDIETA VARGAS an opportunity to be heard before making my decision. I am cognisant that as a consequence, Mr MENDIETA VARGAS has not had an opportunity to advance reasons why an adverse decision should not be made, including because of the impact such a decision would have on him and his family. In this instance Mr MENDIETA VARGAS’ family includes his two minor children, his mother and younger brother.

[11]    I have, however, given consideration to representations made by Mr MENDIETA VARGAS in relation to the original decision and in the AAT proceedings, which resulted in the AAT revoking the decision to cancel Mr MENDIETA VARGAS’ visa.

32    The only ‘decision’ to be made by the Minister under s 501BA(2) is whether to cancel a visa that has been granted to a person, if the Minister is satisfied that the cancellation is in the national interest (emphasis added). There is no anterior decision to be made about whether the Minister is or is not satisfied that natural justice should be afforded. Section 501BA(3) states unequivocally that natural justice does not apply to a decision made under subsection (2) (emphasis added).

33    When considering the analogous provision in s 501(3), the Full Court in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 said:

78.    …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.

(emphasis added)

34    The primary judge correctly identified that this case is distinguishable from Ibrahim, particularly having regard to the circumstances of Ibrahim where the Minister was aware of certain circumstances that may have altered his decision had he not erroneously thought he was precluded from affording the applicant in that case natural justice (Reasons at [33]).

35    Nevertheless, as an incident of the exercise of the power, the Minister’s choice as to whether to afford a visa applicant natural justice before deciding whether to cancel the visa might be reviewable for legality (Brown at [31]). Mr Mendieta Vargas contends that the relevant species of illegality in this case is legal unreasonableness.

36    Paragraphs [9]-[11] of the Minister’s reasons set out above provide an intelligible justification for the Minister’s choice not to afford natural justice. He was conscious that the statute did not require him to do so, but also that he had the alternative choice. Paragraph [11] reveals that the Minister had considered the representations made by Mr Mendieta Vargas to the Tribunal. That gives rise to the logical inference that the Minister considered he ‘had sufficient probative material to support the findings’ he was inclined to make. Indeed, Mr Mendieta Vargas conceded during oral argument that the Minister had sufficient probative materials before him, but argued that affording him natural justice would have given the Minister additional information.

37    The nature of that additional information was said to be that outlined at paragraph 6 of the Affidavit of Caitlin White filed on 22 October 2020. In particular, Ms White deposed that, had Mr Mendieta Vargas been afforded natural justice, she would have made submissions on two documents in particular: one which explained his conviction on the basis of an agreed schedule of facts which included that his ex-partner had slapped or pushed him immediately prior to five of his assault-based offences against her; the other of which comprised an addendum risk assessment by Dr Freeman and a statement by Mr Mendieta Vargas of his remorse, insight and strategies to manage his risk factors. It was said that, because the two documents were not referenced in the table of evidence before the Minister, that evidence was not before the Minister. Ms White also deposed that she would have made submissions on the following matters, namely that Mr Mendieta Vargas: has not subsequently been convicted of any crime; has abided by the terms of the Protection Order; has been gainfully employed; has sought legal representation to commence proceedings to gain access to his children; has resided with his mother; has not been in a relationship with any person since his release; and, that his mother has visited his ex-partner and daughters.

38    Although the documents referred to do not appear on the table of evidence, it is clear that the Minister was referred to the relevant information. The Minister stated in his Reasons that he had regard to Mr Mendieta Vargas’ account of the offences, including that his former partner ‘struck him in the face’ (Minister’s reasons at [40]).

39    The Minister noted Dr Freeman’s addendum report in which he referred to Mr Mendieta Vargas’ completion of an intensive stress and anger management program (Minister’s reasons at [55]).

40    The Minister recounted Mr Mendieta Vargas’ explanation of his offending and his remorse and insight (Minister’s reasons at [47]-[50]) and the strategies to manage risk factors (Minister’s reasons at [63]).

41    Given that the Minister took into account the aforementioned materials, there is no merit in the contention that additional relevant materials contained in the documents referred to were not before the Minister nor that the other matters described in the affidavit could have made any material difference to the Minister’s decision.

42    The Minister’s decision under s 501BA(2) to cancel Mr Mendieta Vargas’ visa without affording him natural justice does not reach the threshold of being one where no logical or rational person could reach the same decision on the material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135].

43    Ground one is not established.

Did the Minister make a finding of fact that Mr Mendieta Vargas is a threat to all women?

44    As to Ground two, Mr Mendieta Vargas contends that the Minister made a finding of fact, or at least engaged in ‘reasoning along the way’, that Mr Mendieta Vargas is a threat to all women when he said, (Minister’s reasons at [61]):

I note with concern the AAT’s conclusion that ‘simply because the Applicant has offended – albeit seriously and potentially catastrophically – against this particular victim/woman, does not mean he is a threat to all women.

45    As the primary judge observed, the Minister’s reasons do not suggest that he made such a finding of fact (Reasons at [42]). No doubt he was disagreeing with the Tribunal’s apparent down-playing of the serious nature of the violent offending against his victim but expressing that disagreement, in the absence of anything else in the Minister’s reasons to suggest that the Minister had reached such a conclusion, does not go so far as to amount to ‘reasoning along the way’ to an illogical and irrational finding sufficient to constitute jurisdictional error: cf DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30].

46    It is clear from later paragraphs in the Minister’s reasons, that he did not proceed on the basis of such a finding. The Minister said:

[67]    I have taken into account Mr MENDIETA VARGAS’s history of criminal offending and find that his criminal conduct also includes a disregard for judicial orders as demonstrated by his failure to comply with domestic violence orders.

[68]    I have had regard to Mr MENDIETA VARGAS’ account of his offending as outlined in the psychological report, and note with concern his tendency to downplay the seriousness of his violent behaviour against his former partner, and this demonstrates a lack of insight into his criminal conduct. Accordingly, I am not convinced that Mr MENDIETA VARGAS has fully recognised his past behaviours that led to his convictions, and this poorly reflects on his prospects of rehabilitation.

[69]    Notwithstanding the psychological assessment by Professor Freeman and the rehabilitative steps taken by Mr MENDIETA VARGAS, in light of his past offending which involved persistent offending in the realm of domestic violence against his former partner, and given his limited insight in the offending, I find that there is an ongoing risk he will reoffend.

[70]    If Mr MENDIETA VARGAS did engage in further criminal conduct of a similar nature, that is, offences of a violent nature such as Common assault or Assault occasionally bodily harm, it could result in conduct that could cause psychological and/or physical harm to a member of the Australian community.

(emphasis in original)

Conclusion

[71]    In summary, having regard to the above, including the nature and seriousness of his criminal history and the risk to the Australian community, were he to reoffend, I conclude that these matters are of such seriousness that it is in the national interest to cancel Mr MENDIETA VARGAS’ visa.

47    The Minister’s reasons reveal that he considered the psychological assessment provided by Professor Freeman and weighed that against his persistent offending and limited insight. He found ‘there is an ongoing risk that he will reoffend’ not that Mr Mendieta Vargas was a risk to all women. Further, the Minister recorded that if Mr Mendieta Vargas did engage in similar conduct, it could result in conduct that could cause harm to a member of the Australian community (emphasis added). The Minister’s summary weighs the risk of Mr Mendieta Vargas’ reoffending against the nature and seriousness of his criminal history and the risk to the Australian community. None of this language is consistent with a finding of fact that Mr Mendieta Vargas is a threat to all women.

48    The primary judge was correct to conclude there was no such finding made by the Minister (Reasons at [42]). Consequently, it is unnecessary to consider whether, had such a finding been made, it was illogical, irrational or unreasonable.

49    Ground two cannot succeed.

Did the Minister fail to apply any active intellectual process to the matters at [45]-[68]?

50    As to Ground three, Mr Mendieta Vargas contends that the Minister did not apply any active intellectual process to the matters that were set out at [45]-[66] of the Minister’s reasons and that the primary judge erred in failing to find so.

51    The requirement to apply an active intellectual process to weighing the factors that bear upon a decision arises as a necessary incident of the Minister’s task. As Allsop CJ said in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3], (Markovic and Steward JJ agreeing) in relation to decisions made under s 501 of the Act:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

52    Unlike the Assistant Minister’s statement of reasons in Hands, the Minister’s reasons demonstrate that he applied an active intellectual process to the matters that bore on his decision as to whether he was satisfied that the cancellation of Mr Mendieta Vargas’ visa was in the national interest. As was observed by the primary judge, Mr Mendieta Vargas bore the onus of establishing that the Minister did not, in fact, reach that state of satisfaction such that he could lawfully exercise the power under s 501BA(2)(b) (Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24]).

53    Mr Mendieta Vargas contends that the Minister’s use of words such as ‘noted’, ‘acknowledged’, ‘considered’, were ‘taken into account’ or ‘had regard to’ is inadequate for the reasons explained by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [35].

54    Mr Mendieta Vargas contended further that the Minister used such expressions when considering matters favourable to him. By contrast, it is said that the Minister expressly explained himself when referring to unfavourable matters by prefacing his statements with words such as ‘as explained by’, ‘demonstrative of’, ‘place greater weight on’, and ‘find that the custodial sentences are a further indication of the seriousness’. The contention that these semantic differences demonstrate a lack of any active intellectual process does not withstand scrutiny when the Minister’s reasons are read fairly and as a whole, particularly when there is no assertion that any relevant matters were overlooked by the Minister.

55    Having set out the various matters which he had variously ‘noted’, ‘acknowledged’, ‘considered’, ‘taken into account’ or ‘had regard to’ in paragraphs [45]-[66], the Minister made findings and drew conclusions relevant to the matter he had to determine, namely whether it was in the national interest for Mr Mendieta Vargas’ visa to be cancelled, particularly at [67]-[71] as set out above.

56    Ground three cannot succeed.

Were the evidence and/or submissions before the Tribunal mandatory relevant considerations for the Minister?

57    As to Ground four, Mr Mendieta Vargas contended that the primary judge ought to have held that the evidence and/or the submissions before the Tribunal were a mandatory relevant consideration for the Minister. This contention was based on the proposition that materials that were before the Tribunal, being the documents referred to in Mr White’s affidavit, were apparently not sent to the Minister. It was said that the Minister had constructive knowledge of those documents, they having been in evidence before the Tribunal, and so had a duty to take them into account.

58    It is important to understand how the power under s 501BA can be exercised. In Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350 at [57], Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said that the concept of the national interest in s 501(3)(d) (which is an analogue of s 501BA(2)(b)) ‘although broad and evaluative, is not unbounded.’ Their Honours said at [57]:

…And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself” [R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at 189, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158.”

(emphasis added)

59    As Rares J said (albeit forming the minority in the outcome) in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) FCR 636 at [13]:

The power conferred on the Minister personally in s 501BA is exceptional. That is because the time at which he can exercise that power arises only after two previous decision-makers have each exercised separate powers under the Act. Those anterior powers were, first, to cancel the visa in question under s 501(3A), because a delegate of the Minister was satisfied both that the visa holder did not pass the character test (relevantly, in a case like the appellant’s, because he or she had a substantial criminal record within the meaning of s 501(6)(a) and (7)) and that the cancellation was in the national interest, and, secondly, to revoke that cancellation under s 501CA(4), because another delegate or the Tribunal (see s 501BA(1)) was satisfied, after the non-citizen made representations in accordance with s 501CA, that the non-citizen passed the character test or there was another reason why the decision under s 501(3A) should have been revoked. Only in those circumstances can the Minister exercise his power to cancel the visa under s 501BA.

60    The Explanatory Memorandum accompanying the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) which, inter alia, introduced ss 501(3A) and 501BA, is instructive. The Explanatory Memorandum, at page 2, makes plain that the amendments were intended to ‘strengthen the powers to … cancel a visa on character grounds’ and ‘strengthen the Minister’s personal powers to cancel a visa’ on character grounds. It also states that the amendments were to:

•    enable the Minister to personally exercise an extraordinary power to set aside the decision of a review tribunal and substitute his or her own decision to cancel a visa; and

•    clarify that if the Minister exercises a personal power to cancel a visa, that decision is not merits reviewable.

61    The primary judge held, with respect, correctly, that the power under s 501BA is fundamentally different from that which is exercised under s 501CA (Reasons at [51]). Section 501CA requires the Minister to invite representations from the applicant and, having received and considered those representations, for the Minister to be satisfied that the person passes the character test or that there is another reason why the decision should be revoked. There is no correlative requirement in s 501BA. To the contrary, as submitted by the Minister, s 501BA does not require the Minister to have regard to any particular matter in forming a view about the national interest under s 501BA(2)(b) or in exercising the discretion in s 501BA(2). As has been observed however in the discussion above in relation to Ground one, should the Minister discern that there is insufficient probative material before him or her, s 501BA(3) does not preclude the Minister from asking for further material.

62    Consequently, failing to consider material that was before the Tribunal during the revocation process (which at best was a permissive factor that bore upon the Minister’s state of satisfaction under s 501BA(2)(b)) could not, without more, go to jurisdiction. In any event, as has been described at paras [37]-[41] of this judgment, it is apparent that the substance of the matters in the documents that were before the Tribunal was also before the Minister. There was no submission that the additional matters deposed to in Ms White’s affidavit at [6](d)-(i) were before the Tribunal.

63    In Chamoun, the Full Court said, at [81]:

…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.

64    The same reasoning is apposite in construing s 501BA.

65    Ground Four cannot succeed.

Disposition

66    The appeal should be dismissed. The Notice of Contention must also be dismissed for the reasons given above.

Associate:

Dated:    3 September 2021