Federal Court of Australia

Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    I have had the advantage of reading the reasons of Thomas J in draft. I gratefully adopt his Honour’s description of the background to the appeal, the Administrative Appeals Tribunal’s decision and the reasons of the primary judge. I agree with the orders proposed by his Honour for the reasons I set out below. To that summary need only be added the fact that on 4 March 2022 the appellant gave notice under s 78B of the Judiciary Act 1903 (Cth) of a matter arising under the Constitution in this proceeding. That matter relates to ground 5 of the notice of appeal. The Full Court was satisfied a reasonable time had elapsed since the giving of the notice for consideration by the respective Attorneys-General of the question of intervention in the proceedings or removal of the cause to the High Court. The Minister did not suggest the appeal could not proceed because notice had not been given or a reasonable period had not elapsed.

Some contextual matters

2    There is no doubt the situation faced by the appellant after the Minister’s decision must have been confronting and distressing at a personal level. He had successfully persuaded the Tribunal, on the merits and after a full hearing, that his visa cancellation should be revoked. The Tribunal was prepared, in its words:

to set aside the decision under review and substitute a decision that the mandatory cancellation of Mr Tereva’s visa be revoked.

3    Having heard and reflected on all the evidence, and having acknowledged the appellant’s previous offending from more than a decade prior to the Tribunal decision including convictions for offences involving violence, at [20], the Tribunal described the incident of offending which led to the visa cancellation in these terms:

Mr Tereva and his next door neighbour, Ms Marchant, attended a social gathering in December 2019. Ms Marchant drove them to the gathering in her car. Mr Tereva drank alcohol at the gathering, but in circumstances where he did not expect to have to have to drive home: Ms Marchant was expected to drive them home again in her car. Ms Marchant did in fact begin the journey home but due to her erratic driving (brought on apparently by a diabetic episode) she was persuaded to stop driving by Mr Tereva. Mr Tereva then took over the driving and continued the journey, which I accept on the evidence before me was expected to be some 20 minutes by car. Mr Tereva drove through an intersection, ignoring a stop sign, and was pulled over by the police.

4    The Tribunal noted at [27] that the appellant had never held a driver’s licence and had received significant sentences in relation to driving offences, and the Tribunal found (at [27]) he had:

shown considerable indifference – or defiance – towards the legal regime regulating road behaviour.

5    Despite describing the offending as very serious, the Tribunal also found the offending occurred in “highly unusual” circumstances (where the appellant had not intended to drive the vehicle), and found the risk of further criminal offending was “very low”: at [34], [36].

6    At [39], a factor which weighted very heavily on the Tribunal was the situation of the appellant’s parents:

I must take into account other considerations. I acknowledge that these other considerations do not “generally” outweigh the primary considerations. Amongst the five factors that I must take into account, the most important from Mr Tereva’s point of view is the strength, nature and duration of his ties. Here I accord some significant weight to the interest Mr Tereva’s parents have in maintaining a close relationship with their son. Mr Tereva supports his parents and they depend upon him. On the evidence before me, it would be difficult for other family members to re-arrange their lives to meet the parents’ continuing needs, but I do not say that it would be impossible for them to do so. Ms Marchant would provide some additional assistance as a family friend, too. I accept, however, that her ability to fill the void, so to speak, would be limited given her own commitments. Beyond this, the parents do have an interest, in my opinion, in maintaining their relationship with their son in Australia. I believe Mr Tereva’s interest in maintaining that relationship, which is the closest familial relationship he has, is also an important factor to which I should have regard.

7    The Tribunal’s decision meant the appellant was freed from immigration detention. He was freed on the day of the Tribunal’s decision, as the law required. That was on 12 January 2021. It should always be recalled that persons whose visas have been cancelled are then deprived of their liberty by operation of ss 189 and 196 of the Migration Act 1958 (Cth). Although that is a common feature of many cases which come to this Court, this feature’s significance at a human level is not diminished because it happens to a considerable number of people. After the Tribunal’s decision, the appellant regained his liberty. Although it appears from the evidence he was still on parole, he is likely, I infer, to have thought he was able to start rebuilding his life and make good the trust the Tribunal had placed in him by its decision. It is also plain from the Tribunal’s reasons that his elderly parents had a significant stake in the positive outcome delivered by the Tribunal’s decision.

8    Then, without notice to the appellant, the Minister exercised his power under s 501BA of the Migration Act.

9    There is no evidence on the appeal about how or why the Tribunal’s decision was drawn to the Minister’s attention in the way it was. The ministerial briefing note is silent on this matter, and simply starts by stating:

It is open to you to consider whether to set aside the decision of the Administrative Appeals Tribunal (AAT) under s501CA to revoke the decision to cancel Mr TEREVA’s Absorbed Person visa under s501(3A) (original decision), and to cancel Mr TEREVA’s Absorbed Person visa under s501BA of the Migration Act 1958 (the Act).

10    It is unclear whether there is some policy or practice that every single favourable decision of a Tribunal revoking a visa cancellation is placed before the Minister for consideration of the exercise of this override power. Whether it was because the appellant had been previously warned his visa would be revoked if he continued to offend, and had also had one visa cancellation revoked prior to the one which was the subject of review by the Tribunal, is also unknown.

11    The ministerial briefing note is dated 16 February 2021. By this stage, the appellant had been free in the community for just over a month. The Minister made his decision on 3 March 2021.

12    It appears the appellant was apprehended on or around 12 March 2021. That is the date of the notification letter to him, which is stated to have been delivered “by hand”. I infer he was apprehended at this point under s 189 of the Migration Act. The evidence shows these events occurred at 6.01 am on 12 March 2021. At this early hour, at least one immigration officer arrived at his home. It is apparent from the Minister’s reasons at [62] that this was also the home of his elderly parents. I infer, and it seems clear, this was the first time the appellant knew that the Tribunal’s decision was not the final outcome for him.

13    I set this out because, like the deprivation of liberty, it is important to understand, at a human level, what is in fact involved when statute permits a decision to be made “without natural justice”. It means that a person such as the appellant, who is going about his business in the Australian community after what on any view was a stressful and prolonged period of uncertainty for him and his parents, is suddenly and without warning again deprived of his liberty and informed that there has been a decision-making process underway concerning his ability to remain in Australia, and about his freedom in the interim, about which he has been entirely ignorant.

14    The power in s 501BA is draconian. It overrides the executive process of an external and independent merits review, in a Tribunal long regarded as capable in the performance of that function. It overrides an outcome of that merits review process in which all have engaged in good faith, likely at some financial cost, and certainly at some emotional and personal cost. It renders futile the considerable expenditure of public funds and resources in that process.

15    The added absence of what is generally regarded as a basic presumption, in the exercise of statutory powers set against a background of common law notions of justice and fairness (Kioa v West [1985] HCA 81; 159 CLR 550 at 609, Brennan J), adds to the extremity of the power conferred.

16    In BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [42], Edelman J said:

Even with the benefit of omniscience, God still afforded Adam the benefit of the natural justice hearing rule. That rule has long been understood to be a foundational principle of justice. When statute creates a decision-making process, the usual implication that would be drawn by any reasonable reader from the language is that the hearing will follow a procedure that is fair in light of the relevant provisions. It would require words of extreme clarity before a court could conclude that Parliament intended to create a process that permitted a statutory hearing process to proceed unfairly.

(Citations omitted.)

17    Despite the foundational nature of the natural justice hearing rule, there is no doubt that Parliament intended the power in s 501BA not to be conditioned with any obligation to afford a person an opportunity to be heard. It has used words of sufficient clarity to convey this intention. That does not mean, as the Full Court has held, that a decision-maker cannot give a person an opportunity to be heard: see Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 at [23]. It is just that there is no enforceable obligation to do so. In reality, as the Minister decided here, it may well mean no opportunity is given and a person like the appellant knows nothing until immigration officers arrive at his home.

Resolution of the grounds of appeal

18    Against that contextual background, it is unsurprising that counsel for the appellant cast a wide net in the grounds of appeal advanced. This appeal is likely to be the appellant’s last tilt, at the level of an entitlement, to secure the ability to remain in Australia. Despite counsel’s efforts, I do not consider any of the grounds of appeal should be upheld. The orders made by the primary judge are not affected by any error. For convenience, I have adopted the headings from the Minister’s written submissions. As Thomas J observes at [168] of his Honour’s reasons, ground 4 of the notice of appeal was not pressed.

Did the primary judge err in failing to find that the Minister’s discretion under s 501BA miscarried or was not properly exercised, or that the Minister exceeded the proper boundaries for the determination of the “national interest”? (Grounds 1 and 2)

19    The appellant places considerable emphasis on a passage from the reasons of Gaudron J in Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [80] where her Honour said that where the same conduct is relied upon for a determination that a person does not pass the character test, and for satisfaction of the national interest criterion:

there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to find a satisfaction that it is in the national interest to cancel the visa of the person concerned.

20    This is one aspect of why, as the Full Court said in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at [140], there are boundaries to what can, and what cannot, fall within the concept of the national interest. That said, as Allsop CJ said in CWY20 at [9], the concept of “national interest” has been “used as an evaluative touchstone in many pieces of Commonwealth legislation since 1945”. Judicial supervision of the boundaries of the concept does not involve, as the appellant’s submissions sought to invite, any second-guessing of the evaluation made by the decision-maker. In CWY20 at [137]-[139], Besanko J made it clear that the repository’s task was evaluative, and like the concept of “public interest” involves a “discretionary value judgment” (quoting Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 at [42], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), although even more so. Allsop CJ, Kenny, Kerr and Charlesworth JJ agreed with Besanko J on these matters. The Full Court in CWY20 also made it clear (see Besanko J at [140]) the exercise of power is still conditioned by a requirement it be exercised reasonably, but that is covered by a different ground of appeal and I address it below.

21    At [142], Besanko J said:

The grounds of review are necessarily limited and an affirmative answer to such a challenge is not lightly given. The grounds include a failure to address the correct question, a material mistake of law, taking into account extraneous or irrelevant matters or failing to take into account relevant considerations or a decision that is illogical, irrational or plainly unreasonable (R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430–432 per Latham CJ; Avon Downs at 360 per Dixon J; SGLB at [38] per Gummow and Hayne JJ; SZMDS at [32], [35], [37]–[38], [40] per Gummow ACJ and Kiefel J; at [120], [124], [130], [131] per Crennan and Bell JJ). It is more difficult to successfully challenge a decision which engages matters of opinion, policy or taste (Buck v Bavone at 118–119 per Gibbs J).

22    The appellant’s submissions on grounds 1 and 2 were not addressed to errors of this kind. They invited no more than disagreement with the discretionary value judgment formed by the Minister. As the primary judge found at [47] of her Honour’s reasons, the Minister’s reasons disclose the formation of an opinion about the seriousness of the appellant’s conduct in the past, the likelihood of re-offending in the future and the expectations of the Australian community which, although at variance with the Tribunal’s views, were matters the Minister engaged with in a way consistent with the authorities on this criterion.

Whether the primary judge erred in failing to find the Minister’s decision was legally unreasonable? (Ground 3)

23    The key submission on behalf of the appellant under this ground was that the concept of legal unreasonableness includes notions of proportionality. He relied on some passages from Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [30] (French CJ) and [72] (the plurality). The requirement that an exercise of power be proportionate was also conveyed, counsel contended, by what Mason J (as his Honour then was) had said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 41, where Mason J observed that error may be demonstrated by the giving of “excessive weight to a relevant factor of no great importance”. The plurality in Li at [72] cited this passage.

24    Applying that to the appellant’s circumstances, the submission was that at passages such as [41] of his reasons the Minister had failed to understand the circumstances of the offending which led to the visa cancellation (the driving incident). Counsel contended (in terms substantially repeated in oral argument):

The sentence of the applicant by the Queensland Magistrate was proportionate, the decision of the AAT was proportionate. There was nothing particularly outstanding about the behaviour and the possible future risk the appellant may pose for it to be in the national interest for him to be deported from Australia, never allowed to return.

25    In his submissions on the appeal, the Minister accepted that a disproportionate exercise of power could in a particular case result in jurisdictional error. However, counsel for the Minister submitted that the exercise of power in respect of the appellant did not involve any lack of proportionality, in particular because the reasoning revealed an evident and intelligible justification for the outcome: see Li at [76]. Counsel for the Minister emphasised, correctly in my opinion, that divergence from the Tribunal’s opinions and reasoning was not itself evidence of lack of proportionality, or legal unreasonableness.

26    The role of proportionality as a concept in the ground of legal unreasonableness may be a matter which needs careful consideration and exploration, in terms of legal principle. This appeal is not the occasion to do so, as the appellant’s submissions did not go much beyond assertion.

27    It can be accepted that the juxtaposition of the Tribunal’s reasoning on the merits with the Minister’s reasoning on the merits provides a somewhat stark contrast. Together with the Minister’s opinion that the appellant’s conduct was so serious as to justify overriding the Tribunal’s decision in the national interest, this juxtaposition again illustrates the draconian nature of the power conferred by s 501BA, especially given s 501BA(3). However, the appellant’s contentions on this ground give the Tribunal’s decision a substantive status for the purposes of the Minister’s decision-making that s 501BA does not itself afford.

28    Following from this, one further matter should be mentioned. In the appellant’s written submissions there is a suggestion that the Minister, in his reasoning, needed to “rebut” the reasoning of the Tribunal. That suggestion cannot be accepted. The power in s 501BA is an override power. While it takes as its jurisdictional precondition a favourable decision of the Tribunal, there is nothing in the text, context or purpose of the provision which supports an implication that the Minister is required to “rebut” the reasoning of the Tribunal. Given the precondition, it may be an error for the Minister not to consider the Tribunal’s reasoning at all. However, the Minister’s power is differently conditioned, by the concept of the national interest, and there is no basis to import into the lawful exercise of that power a requirement that the Minister needs to refute the reasoning of the Tribunal. Indeed, this is a feature contributing to the draconian nature of the power. The Minister is empowered, subject to remaining within the boundaries of the concept of the “national interest”, and the boundaries of legal reasonableness and rationality, to simply take an entirely different view of the facts and circumstances to that taken by the Tribunal.

The validity of s 501BA(3) (Ground 5)

29    I do not accept the appellant’s submission that s 501BA(3) impermissibly confines or restricts the judicial power conferred on the High Court under s 75(v) of the Constitution and is therefore invalid. The primary judge was correct to reject this contention.

30    To this point in Australian public law jurisprudence, and putting to one side circumstances where a provision might impermissibly confer judicial power on the executive (cf Alexander v Minister for Home Affairs [2022] HCA 19; 401 ALR 438), the proposition that Parliament cannot, consistently with the Constitution, confer a power to defeat, destroy or adversely affect the rights and interests of a person, including their right to liberty, without affording the person a reasonable opportunity to be heard, has not been accepted. Courts have repeatedly insisted that Parliament make its intention clear by the express language it uses if it intends that result: see Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [74].

31    Most authorities go no further than this, at least not directly. However, see Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [42] and the use by Gaudron and Gummow JJ of the adjective “attempted” in the following passage:

Nor does any question arise here of attempted abrogation by statute of any requirement of procedural fairness. Rather, s 476(2)(a), in limiting the grounds which may be taken in the Federal Court, assumes the existence of the requirement in respect of decisions under the Act which include those of the Tribunal (see s 475(1)(b)).

32    The contention about a constitutionally entrenched minimum content to judicial review under s 75(v) (which arguably might include procedural fairness) was raised in Graham v Minister of Immigration and Border Protection [2017] HCA 33; 263 CLR 1, but was only addressed by Edelman J in his Honour’s reasons; cf the plurality at [65].

33    In other words, the clear position set out in Plaintiff M61 by the whole High Court at [74] remains the law.

34    The plurality’s reasoning in Graham at [42]-[48] explains that what Parliament cannot do is to preclude a court exercising jurisdiction “under or derived from” s 75(v) from enforcing the limits of the law as Parliament has defined those limits in statute, expressly or impliedly. In Graham, the plurality held that, by a provision which purported to authorise the withholding of relevant evidence to the lawfulness of an exercise of statutory power from the Court, Parliament had transgressed that boundary: see [48], [50], [64]. Such a circumstance does not arise on this appeal.

35    The one aspect of this ground of appeal which needs some attention is the appellant’s point that the rules of natural justice are recognised as having two limbs – the hearing rule and the bias rule. That proposition can be accepted. However, I do not accept that s 501BA(3) should be construed as providing that the principles of actual and apprehended bias do not govern an exercise of power under s 501BA(2). In context, s 501BA(3) is clearly directed at the natural justice hearing rule. Greater clarity of language would be needed for Parliament to authorise an exercise of power as extreme as that conferred by s 501BA(2) in circumstances that otherwise engaged the principles of actual or apprehended bias. Again, this point was not developed much beyond mere assertion, so it is not necessary to say any more about it.

Conclusion

36    For these reasons, I concur with the orders proposed by Thomas J.

Associate:

Dated:    26 August 2022

REASONS FOR JUDGMENT

BROMWICH J:

37    I have read in draft the reasons of Mortimer J and of Thomas J. I agree with their Honours that this appeal must be dismissed. In reaching that conclusion, I adopt the background summary to this appeal by Thomas J. I also adopt the articulation by Mortimer J of additional contextual matters, and her Honour’s reasoning as to why none of the grounds of appeal have even been properly addressed, let alone made out. I also agree with her Honour that nothing unconstitutional about the power has been demonstrated.

38    None of the asserted errors on the part of the primary judge have been established. The Minister had the power to make the decision to override the decision of the Administrative Appeals Tribunal to revoke the visa cancellation decision, and did not legally err in the exercise of that power.

39    I wish to add some additional observations about the nature of the power that was exercised by the Minister. By enacting s 501BA of the Migration Act 1958 (Cth), Parliament has chosen to give the Minister an extreme and largely unaccountable power to override decisions of both delegates and the Tribunal to revoke a visa cancellation on character grounds: see ss 501(3A) and 501CA(4). The bestowal of that power expressly excludes any obligation to afford the person affected natural justice, while leaving open an option to grant that otherwise fundamental right: Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 at [23]. Relevantly, the pivotal and, as a practical matter largely unreviewable, basis for the exercise of that power is satisfaction that the visa cancellation is in the national interest, being an essentially political evaluation.  

40    It might be thought that the unstated reason for granting such a power was to ensure that real matters of national concern could be addressed urgently and without fetter, and that otherwise the decisions of delegates, and the Tribunal decisions on merits review of delegates’ decisions, would apply without being overridden if otherwise lawful. A reasonable expectation by ordinary decent people would be that such an important overriding power would be used by the Minister with self-imposed restraint, confined to circumstances that really called for it. That is not what has happened in this case.

41    The nature of the power bestowed upon the Minister meant that there was no obligation to have any real regard to the devastating consequences being visited upon Mr Tereva and his family: cf Hands v Minister [2018] FCAFC 225; 267 FCR 628 per Allsop CJ at [3]. There was no obligation to act with common decency and humanity, nor to recognise that the harm that will be done to Mr Tereva and his family must surely exceed the miniscule risk he poses to the Australian community as a result of his most recent conduct giving rise to his visa cancellation. While he does have a lengthy criminal history, that was not the trigger for his removal from Australia at almost 60 years of age, after living here since he was 16.

42    Mr Tereva did not plan to drive unlicensed at all, let alone while intoxicated, and is almost certain never to do so again if he was to be allowed to stay here. However, because he has made that mistake, he has already been imprisoned for 12 months, and has also been kept in immigration detention after his release from prison for just on 18 months since the Minister’s decision on 3 March 2021 to override the Tribunal’s decision. On top of that, he is to be removed from Australia after living here for well over 40 years. The overall consequences of his conduct on a single night, serious though they were, have already been out of all proportion to what he has done, yet he is now to be banished from Australia as well.

43    A judge has a duty to apply the law, irrespective of whether the outcome is one that is agreeable. It has been a most unhappy duty for me to perform on this occasion.

Associate:

Dated:    26 August 2022

REASONS FOR JUDGMENT

THOMAS J:

44    The appellant appeals from the whole of the judgment and all of the orders of this Court made on 27 October 2021 at Brisbane.

HISTORY

45    The following procedural history is principally taken from the decision of Collier J in Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1307.

46    The appellant was born on 12 September 1963 in New Zealand. He came to Australia with his family when he was 16 years old and has lived in Australia ever since. He held an Absorbed Person visa within the meaning of s 34 of the Migration Act 1958 (Cth).

47    It is not in dispute that the appellant had a lengthy criminal history in Australia, commencing shortly after he had attained his majority. The offences for which he has been convicted involved stealing, possession of suspected stolen property, unlawful assault, breaking and entering a dwelling with intent, various dishonesty offences, unlawful use of a motor vehicle, wilful and unlawful damage to property, breaching bail, mistreatment of an animal, breaches of domestic and family violence protection orders, dishonest application of another’s property, driving while being disqualified, and driving a motor vehicle while having an excess concentration of alcohol in his blood.

48    In 2015 the appellant’s visa was cancelled. However, the cancellation of the visa at that time was revoked by the Minister’s delegate.

49    In 2020 the appellant was convicted in the Magistrates Court of Queensland of driving a motor vehicle while disqualified and while having an excess blood alcohol level. He was sentenced to a term of imprisonment of at least 12 months, part of which was to be served in custody.

50    On 6 March 2020 the appellant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Migration Act. On 20 October 2020 the delegate made a decision under s 501CA of the Migration Act not to revoke the cancellation decision.

51    The appellant applied to the Administrative Appeals Tribunal seeking a review of the decision of 20 October 2020. The Tribunal set aside the delegate’s decision and substituted a decision that the cancellation of the appellant’s visa be revoked. In so deciding the Tribunal found, materially:

41.    In this unusual case, the circumstances of the most recent offending assume particular importance in the weighing of my discretion. [The appellant] has, no doubt, a very long criminal record but I have concluded that the risk of his reoffending is very low, and I point again to the years since his visa was last cancelled where he had not engaged in any criminal conduct. The most recent criminal conduct in which he has engaged occurred in very unusual circumstances. As I have indicated, I believe I should take into account the circumstances of that offending as a factor which properly informs my evaluation of the likelihood of his reoffending. The lack of moral turpitude in [the appellant’s] most recent offending is a relevant factor in my opinion. When I combine that with the difficulties that could be caused to [the appellant’s] elderly parents were he to depart and with his own interest in living within an established family unit, I believe this is a case where the discretion to revoke cancellation ought to be exercised.

42.    I wish to make very clear that if [the appellant] had driven himself to the social gathering in December 2019, consumed alcohol, and then begun the journey home, I would have viewed his behaviour in a very different light, and I would most probably have affirmed the decision under review. As I have said, however, that is not this case. There was no decision ever taken by [the appellant] to drive except the decision he took in circumstances he did not anticipate, by which time his judgment had been substantially impaired by alcohol. In that regard, I note that the consumption of alcohol features frequently at Australian social gatherings and that there was nothing legally wrong or morally reprehensible in [the appellant’s] consumption of alcohol at a social gathering where he did not intend to drive himself home.

52    As a consequence of the Tribunal’s decision, the appellant’s visa was reinstated.

53    Subsequently, on 3 March 2021, the Minister set aside the Tribunal’s decision. The appellant was informed of this decision by letter from the Department of Home Affairs dated 12 March 2021. It is this decision of the Minister which was the subject of the primary proceedings.

54    By originating application filed 21 May 2021, the appellant sought orders to quash the decision the Minister made on 3 March 2021 and orders in the nature of habeas corpus.

55    On 27 October 2021, relevantly to these proceedings, the originating application filed on 21 May 2021 was dismissed.

56    The appellant has appealed from the whole of the judgment and all of the orders of this Court made on 27 October 2021 at Brisbane.

GROUNDS OF APPEAL

57    There were five grounds of appeal in the current proceedings. They were:

1.    The learned trial justice erred by failing to find that the first respondent’s discretion under s501 BA of the Migration Act miscarried or was not properly exercised.

2.    The learned trial justice erred by failing to find that the first respondent exceeded the proper boundaries for the determination of the ‘national interest’.

3.    The learned trial justice erred by failing to find that the first respondent’s decision was unreasonable;

4.    The learned trial justice misunderstood the appellant’s submissions in two respects:

(a)    There is not one scintilla of evidence that the appellant either in written or oral submissions suggested that the triggering offence was ‘trivial’ (see [50]), it being submitted, at all times, that the offence was serious although at the lower of end of the scale of criminality, noting the appellant had a head sentence of 365 days, with the actual period of imprisonment being 4 months.

(b)    The appellant never submitted that the power under s501 BA could only be exercised in an ‘emergency’ or ‘significant threat to the nation’ (see [45]], the appellant submitting, at trial, that the words of the respective Ministers in their second reading speeches inform as to how the ‘national interest’ should be assessed.

(c)    Hence the learned trial judge erred by misconstruing or misunderstanding the appellant’s submissions at trial.

5.    The learned trial judge erred by failing to find section 501BA(3) of the Migration Act 1958 is not a valid enactment in that it violates or excessively interferes with the exercise and/or performance of the constitutional writs under section 75(v) of the Australian Constitution and if s501BA(3) is invalid then the first respondent’s decision was infected with jurisdictional error by having failed to accord the [appellant] natural justice or procedural fairness and that failure was material.

(Emphasis omitted; errors in original).

THE MINISTER’S DECISION

58    On 3 March 2021, the Minister made a decision setting aside the decision of the Tribunal to revoke the original decision. The Minister notified the appellant of the decision on 12 March 2021.

59    The Minister provided a statement of reasons to the appellant.

60    The Minister identified the matters about which the Minister had to be satisfied by reference to s 501BA and the fact that the rules of natural justice did not apply (statement of reasons [19]). The Minister considered the character test, concluding that the appellant had a substantial criminal record and did not pass the character test.

61    The Minister identified the matters which he considered to be relevant to the question of national interest, including the seriousness of the criminal conduct and other serious conduct, having regard to the circumstances and nature of the conduct, any disposition imposed by the Court in respect of the criminal conduct, the risk of the appellant reoffending, the harm which could flow if such risk eventuated, and the expectations of the Australian community (statement of reasons [19]).

62    The Minister then comprehensively considered the lengthy criminal history dating back to 1981 until the final offence which led to the custodial sentence (statement of reasons [20]-[36]).

63    The Minister turned to the risk to the Australian community, taking into account mitigating factors, the conclusions reached by the Tribunal and submissions made on behalf of the appellant, and setting out the Minister’s conclusions in relation to these matters (statement of reasons [38]-[50]).

64    The Minister found there was an ongoing likelihood that the appellant would reoffend and that further offending may result in physical harm to members of the Australian community (statement of reasons [51]-[52]).

65    Having regard to the nature and seriousness of the criminal history and the risk to the Australian community were the appellant to reoffend, the Minister concluded that the matters were of such seriousness that it was in the national interest to cancel the visa.

66    As to the expectations of the Australian community, the Minister found that the appellant had breached the trust of the Australian community and, given the serious, recidivistic nature of the offending, concluded that the Australian community would expect that the appellant would not hold a visa.

67    Recognising that the exercise of the powers was discretionary, the Minister then considered whether there were relevant considerations that might support not setting aside the original decision and cancelling the visa despite the Minister’s satisfaction that the appellant did not pass the character test and that the cancellation was in the national interest.

68    The Minister considered factors such as the best interests of minor children, the appellant’s ties to Australia and the extent of impediments if the appellant were removed.

69    The Minister concluded:

74.    I am satisfied that Mr TEREVA does not pass the character [test] because of the operation of, in this case, section 501(6)(a) with reference to s501(7)(c) of the [Migration] Act. Further, I am satisfied that it is in the national interest to cancel Mr TEREVA’s visa.

75.    In considering whether or not to set aside the original decision and cancel Mr TEREVA’s visa, I gave primary consideration to the best interests of Mr TEREVA’s nieces and nephews and have found that their best interests would be best served by not cancelling the visa.

76.    I also considered the risk posed to the Australian community by Mr TEREVA’s continued presence in Australia, taking into account that he has committed a number of offences in Australia including those involving drink driving, for which he has received court dispositions including sentences of imprisonment of up to 12 months.

77.    Mr TEREVA has committed serious crimes, including repeated drink driving and unauthorised driving, showing disregard of the law which is designed to protected road users. Mr TEREVA has an extensive history of offending causing great cost to the Australian community. Non-citizens such as Mr TEREVA who commit such offences should not generally expect to be permitted to remain in Australia.

78.    I find that the Australian community could be exposed to harm should Mr TEREVA reoffend in a similar fashion or continue to breach the law and judicial orders. I could not rule out the possibility of further criminal conduct by Mr TEREVA. The Australian community should not tolerate any risk of further harm.

79.    On the other hand I have also considered the impact on family members in particular his elderly parents and friends. I have also considered the length of time Mr TEREVA has made a positive contribution to the Australian community and the hardship to be endured by his family, in particular his elderly parents and other family members. I have also considered the impediments he will face upon return to his home country, noting his long absence and lack of familial support in New Zealand.

80.    I am cognisant that where harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct or other serious conduct by Mr TEREVA, than I otherwise would, because he has lived in Australia for most of his life, or from a young age, arriving at the age of 16.

81.    I consider that Mr TEREVA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

82.    I find that the above considerations favouring non-cancellation are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the decision of the [Tribunal] dated 12 January 2021, and cancel Mr TEREVA’s Absorbed Person visa under s501BA of the [Migration] Act.

BEFORE THE PRIMARY JUDGE

70    In the originating application, the appellant advanced 11 grounds.

71    The primary judge identified three distinct elements referable to specific grounds, namely:

(a)    misunderstanding of the national interest;

(b)    unreasonableness attaching to the exercise of the discretion by the Minister; and

(c)    the validity of s 501BA(3) of the Migration Act.

72    The primary judge concluded that the discretion of the Minister in s 501BA is broad and evaluative and the question of what is or is not in the national interest has been entrusted to the Minister by the Legislature to determine according to his or her satisfaction provided that determination is reasonable.

73    In determining whether it is in the national interest to cancel a visa, it is acceptable for the Minister to have regard to the same considerations as resulted in the failure of the character test. However, there must be something in the nature or seriousness of the relevant conduct, or the surrounding circumstances, to found a satisfaction in the Minister that it is in the national interest to cancel the visa.

74    The primary judge was satisfied that the Minister separately turned his mind to the question whether it was in the national interest to cancel the visa.

75    The primary judge was not persuaded that the Minister adopted “too low a bar” in concluding that the national interest warranted cancellation of the visa. The primary judge was of the view that the submission regarding “too low a bar” invited improper substitution by the Court of its view of the national interest over the view of the Minister.

76    The primary judge considered there was ample evidence that the Minister had given careful consideration to the reasons outlined by the Tribunal.

77    The primary judge concluded that the Minister properly understood the concept of national interest and it was open to the Minister to find that it was in the national interest for the visa to be cancelled.

78    In relation to the question of reasonableness, the primary judge concluded that the Minister’s view, that cancelling the visa was in the national interest, had an evident and intelligible justification and it was open to the Minister to disagree with the view of the Tribunal and reach a different conclusion.

79    In relation to the validity of s 501BA(3), whilst noting the requirements of procedural fairness are of vital importance in the administration of justice, the primary judge further noted that the availability of procedural fairness in particular cases is subject to an indication of intention to the contrary by the Legislature (see Commissioner of Police v Tanos (1958) 98 CLR 383). The primary judge concluded that the plain language of s 501BA of the Migration Act excludes the operation of the rules of natural justice.

80    The primary judge concluded that s 75(v) of the Constitution did not invalidate s 501BA(3) of the Migration Act.

THE LEGISLATION

81    The decision taken by the Minister was made pursuant to s 501BA of the Migration Act.

82    Section 501BA provides as follows:

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 [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.

Note:    For notification of decisions under subsection (2), see section 501G.

CONSIDERATION

83    Where the Tribunal has revoked a decision to cancel a visa, the Minister may, in circumstances set out in s 501CA, set aside the Tribunal’s decision and cancel the visa.

84    In doing this, the Minister must be satisfied:

(a)    that the person does not pass the character test; and

(b)    that the cancellation is in the national interest.

85    National interest considerations are separate and distinct from the question whether or not a person passes the character test. The matters which result in a person failing the character test may also (but will not always) provide the foundation for the Minister’s satisfaction that it is in the national interest that the person’s visa be cancelled. For example, the conduct which has led to a person failing the character test may be such as to threaten the national interest. Where the same conduct is relied upon as to both the character test and the national interest, there must be something in the nature, or the seriousness, of that conduct, or in the circumstances surrounding it, to found a satisfaction that it is in the national interest to cancel the visa of the person concerned (see Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 per Gaudron J at [78]-[80]).

86    The question of what is in the national interest is, pursuant to the legislation, entrusted to the Minister. The Minister’s discretion is broad and evaluative but not unbounded (see Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1). The Minister must act reasonably.

87    I will consider each of the grounds raised.

GROUNDS 1 AND 2

88    Grounds 1 and 2 were considered together. The appellant made a number of submissions at the hearing in relation to these grounds. I will deal with the specific submissions made.

89    The focus of the argument related to the Minister’s powers to determine what is or is not in the national interest.

90    At a general level, many of the matters raised by the appellant were in the nature of disagreement with the discretion exercised by the Minister, which included the Minister’s judgement and opinion regarding the implications of the conduct. The task of the Court in matters of this type is not to undertake an analysis in the nature of merits review or to substitute the Court’s opinion for that of the Minister where more than one approach might be open.

Roles of the Tribunal and the Minister

91    The appellant made a number of submissions as to the role of the Tribunal and the role of the Minister.

92    The appellant submitted that “Parliament has allocated the task of visa cancellation in these matters to the [Tribunal]” (transcript p 9 ll 16-17). The appellant continued that “[i]f the [Tribunal] is the body charged with this function by Parliament, then that’s where these matters ought to be decided, subject, of course, to the supervisory jurisdiction of this court” (transcript p 10 ll 19-21).

93    The language of s 501BA does not support this conclusion.

94    Relevantly, s 501BA(1) provides that the section (which grants the relevant powers to the Minister) applies:

If:

…

(b)    the [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.

95    The Minister’s powers derived from s 501BA are to set aside the decision of the Tribunal. The powers to set aside come into effect after a decision by the Tribunal under s 501CA to revoke a decision made under s 501(3A) to cancel a visa. The cancellation under s 501(3A) is dependent upon the person not passing the character test. Section 501BA(2) gives the Minister the power to set aside the decision by the Tribunal if:

(a)    the Minister is satisfied that the person does not pass the character test …:

…; and

(b)    the Minister is satisfied that the cancellation is in the national interest.

96    The submission that “these matters” should be decided by the Tribunal, as the body charged with “this function” by Parliament, is not correct. As is clear from the scheme of the legislation, whilst the Tribunal undertakes merits review, the Minister has the power to set aside the Tribunal’s decision. There is no indication in the legislation that the Tribunal’s decision is a final decision (so that it is the body finally charged with this “function”) or that a matter involving the national interest would be one which would be determined by the Tribunal. To the contrary, the Tribunal’s decision is subject to the power of the Minister to set it aside and “these matters” are plainly within the ambit of the exercise of the discretion of the Minister.

97    It is clear that the Parliament has not, as the appellant submitted, allocated the task of visa cancellation by reference to the national interest to the Tribunal.

98    The submissions made by the appellant which flow from this proposition have no basis.

Submissions before the Tribunal

99    The appellant pointed to the fact the Minister was represented at the hearing before the Tribunal where there was “no reference by the Minister’s representative to any type of national interest or national issues”. The submission continued that “[n]o doubt if there were issues of national interest, national issues, national policy, national laws, one would have thought that that would have manifested in the submissions by the Minister at the [Tribunal]” (transcript p 4 ll 34-39). The appellant further submitted that “if there was or if there were something of national interest, the Minister would have had represented it at the [Tribunal]” [sic] (transcript p 6 ll 13-15).

100    The appellant submitted (transcript p 7 ll 20-26) that:

[I]f the Minister thought that there was something in the national interest, that was a pertinent matter to put to the [Tribunal], that not only has this man committed an offence but, amongst other things, it’s in the national interest that he should have his visa cancelled. One would ordinarily expect that all of the issues relevant to a person’s removal from Australia would be agitated at the body which determines merit review. And that submission was never put.

101    It was further submitted that matters of national interest could have been taken into account by the Tribunal and there was no prohibition on the Tribunal taking into account the national interest as a material matter if a submission of that kind was put forward by the Minister.

102    The appellant was mistaken in these submissions.

103    As outlined earlier, under the legislation, the question of what is in the national interest arises in the context of the Minister’s decision under s 501BA being the decision whether to set aside the decision of the Tribunal to revoke a decision to cancel a visa that has been granted to a person.

104    The question of the national interest would have been irrelevant in the context of the matters which were before the Tribunal – not relevant to its deliberations or determination. It would not have been appropriate to put these matters before the Tribunal member. Had the Tribunal member taken such matters into account, the decision might have been impugned by the member having taken into account an irrelevant consideration.

105    This submission does not reveal any error by the Minister.

Did the Minister properly identify what it was about the criminal behaviour that brought into consideration the national interest?

106    The appellant asserted that the Minister did not properly identify what it was about the criminal behaviour that elevated it to the need to cancel the appellant’s visa “in the national interest” (italics removed) (appellant’s submissions [19]).

107    As is clear from the statement of reasons, the Minister identified what it was about the behaviour of the appellant which caused the Minister to decide that, in the national interest, the decision should be set aside.

Was the period of release from detention significant?

108    The appellant drew attention to the fact that, whilst the appellant was released from detention on the day of the Tribunal hearing of 12 January 2021, the Minister made the decision on 3 March 2021 and the appellant was not detained until 12 March 2021. The appellant submitted that “[i]f there was something in the national interest and the seriousness of this matter, this person ought to have been detained – well, not immediately, but certainly very quickly, but should not have been allowed to remain in the community for two months if it were genuinely the case that this was a matter of national interest” (transcript p 11 ll 16-25).

109    The time taken to detain the appellant has no clear bearing on the analysis and consideration undertaken by the Minister, as reflected in the statement of reasons, which sets out the basis upon which the Minister concluded that cancelling the visa was in the national interest.

Natural justice

110    The appellant submitted (transcript p 7 ll 29-34) that:

There was no ability of the appellant to counter that argument at a point where he could do so … where the Minister exercises a power and makes a deliberative decision not to accord a person natural justice, then that signifies that the bar, indeed, has to be set high, that there is something about this matter whereby not even the person affected should know that this decision is under consideration and not – and this person should not be able to make submissions.

111     Section 501CA(3) provides that the rules of natural justice do not apply to the Minister’s decision.

112    There is no connection developed (or evident) between the decision not to accord natural justice and whether the bar “has been set too high”.

Was the bar sufficiently high to warrant the exercise of the power?

113    Whilst referring to reading speeches in relation to the use of the power in circumstances of an “emergency” (see Second Reading Speech, 2 December 1998, Minister for Immigration and Multicultural Affairs, Mr Ruddock) or “where a real and immediate risk is posed” (see Second Reading Speech, 24 September 2014, Minister for Immigration and Border Protection, Mr Morrison), the appellant did not, however, suggest that power might only be exercised in an emergency, but submitted that the power “should only be exercised in circumstances where the bar is sufficiently high to warrant the use of this power” (appellant’s submissions [12]).

114    Essentially, the appellant submitted that, in this case, “the Minister set the bar too low for the application of the ‘national interest’” (appellant’s submissions [13]).

115    Whilst conceding that criminal activity is serious (including drunk driving), the appellant submitted that some cases are more serious than others and that, whilst the appellant’s criminal record is “certainly not pretty and is appropriately described as extensive”, there was never a head sentence of imprisonment of more than 12 months (appellant’s submissions [14]).

116    As to the particular offence which led to the cancellation of the visa, the appellant noted that the seriousness of the offence could be considered by reference to the nature of the sentence, in this case, 12 months jail to serve four months. The appellant submitted that this did not fit into the category of “there [being]… something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to [found] a satisfaction that it is in the national interest to cancel the visa” (italics and bold removed) (appellant’s submissions [18], transcript p 8 ll 29-31).

117    In considering these issues, it is necessary to have regard to the statement of reasons provided by the Minister.

118    It is apparent from the reasons that the Minister understood the legislated provisions that the rules of natural justice did not apply and explained the approach taken in the Minister’s consideration.

119    The Minister understood the nature of the task which was being undertaken including the difference between the failing of the character test and a consideration of what was in the national interest.

120    The Minister referred to the requirements of s 501BA and the need for the Minister to be satisfied with respect to

(a)    passing the character test; and

(b)    whether the visa cancellation is in the national interest.

121    The Minister undertook an analysis and provided reasons for the conclusion regarding both the character test and the national interest.

122    The Minister first considered the character test – whether the appellant had a “substantial criminal record” as defined by s 501(7)(c). The Minister had regard to the Tribunal’s reasons. The Minister was satisfied that the appellant did not pass the character test because of the operation of s 501(6)(a), as he had a substantial criminal record as defined in s 501(7)(c).

123     The Minister then proceeded to consider the national interest.

124    The Minister recognised that this question was separate and distinct from the question of whether or not the appellant passed the character test.

125    The Minister noted that “national interest” is not defined and that the question is an evaluative one entrusted by the Legislature to the Minister to determine according to the Minister’s satisfaction, provided that satisfaction is obtained reasonably.

126    The Minister indicated that matters of national interest include, amongst others, “the seriousness of the criminal and other serious conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of the criminal conduct”. The Minister continued: “I also find that matters of national interest include a consideration of the risk of a person reoffending and the harm which could flow if such a risk eventuated. Also, in relation to the national interest I take into account the expectations of the Australian community”.

127    The matters which might properly be considered by the Minister extend beyond the circumstances of the particular offence which gave rise to the period of imprisonment imposed. In this case the Minister referred to a “lengthy criminal history” and considered the circumstances of the appellant’s conduct (under the heading of “criminal conduct”) over the period from 1981 until the conduct which led to the sentence which led to the decision to cancel the visa.

128    The Minister noted that the appellant’s repeated conduct displayed a “disregard for the law and a failure to appreciate the [importance] of the system for regulating the use of roads and vehicles, which can pose a very serious potential risk to the community” and observed “[c]learly this constitutes flagrant disregard for judicial authority and the safety of other road users”. The Minister noted that the history of frequent and repeated offending must be considered serious.

129    The Minister referred to the Tribunal member’s finding that the appellant had a very poor criminal record and the member’s description of the appellant’s driving record as “abysmal” showing “considerable indifference, or even defiance towards road rules that regulate road behaviour”.

130    The Minister noted the significant cost which had been borne by the Australian community when the appellant’s offending was considered cumulatively. Whilst the Minister said that many of the offences were not individually very serious, he continued “cumulatively they impose a considerable burden on the community and, when viewed in totality, amount to serious offending”. The Minister concluded that the pattern of breaches and contravention of judicial orders, including repeatedly driving while disqualified demonstrated the appellant disrespected the law, which the Minister took into account. As to the recent offence leading to the imprisonment, the Minister noted that the period of 12 months reflected the seriousness of the offending.

131    The Minister viewed the offending related to domestic violence, including court orders designed to prevent such violence, as serious. The Minister noted the Tribunal’s finding that the appellant “ha[d] a considerable history of antisocial behaviour with an established tendency to reject the law”.

132    The Minister found that the appellant posed a risk to the Australian community through committing further criminal offences and concluded that such a consideration may assist in founding a satisfaction that it was in the national interest to cancel his visa.

133    The Minister took into account the Tribunal member’s finding regarding the most recent offence involving an acceptance by the Tribunal member of the account of events provided by the appellant. The Minister rejected this assessment with reasons. As to the recent offence, the Minister described it as serious because it was a repetition of two types of driving offences about which the appellant had received ample warning in the past. The Minister concluded that the reoffending demonstrated that the appellant did not draw the lesson from the previous occasions on which he came before the courts and the several terms of imprisonment imposed upon him.

134    The Minister recorded that he did not consider that the appellant had shown insight into the seriousness of his offending behaviour, or understood the impact it has on the community, especially drink-driving offences. The Minister noted that a warning had been given to the appellant, for the purposes of s 501, in 2016, but that he had subsequently committed the further similar driving offence which attracted a custodial sentence.

135    The Minister said he was mindful of the principle that the Australian community would expect that non-citizens who commit serious crimes in Australia can and should have their visas cancelled. The Minister found that the appellant had breached the trust of the Australian community. The Minister concluded, given the serious recidivistic nature of the offending, that the Australian community would expect that the appellant should not hold a visa and noted that the Tribunal member had been of the same view in respect of the appellant’s criminal history.

136    The Minister’s reasons do not reveal any legal misunderstanding of the way in which the discretion under s 501BA was exercised. The conclusions reached by the Minister were open to the Minister.

137    The primary judge did not err by failing to find that the Minister’s discretion under s 501BA of the Migration Act miscarried or was not properly exercised. The primary judge did not err by failing to find that the Minister exceeded the proper boundaries for the determination of the national interest.

GROUND 3

138    The appellant submitted that there are several strands of considering unreasonableness, namely a question of proportionality and a question of improper allocation of weight in some matters (appellant’s submissions [27]-[28]).

139    The appellant referred to the decision of French CJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 where it was said (at [30]): “a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves” (footnote omitted).

140    The appellant also referred to what was said by Mason J (with whom Gibbs CJ and Dawson J agreed) in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (at 41): “in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance … the decision is ‘manifestly unreasonable’”.

141    The appellant referred to the concept of proportionality, that the appellant would be barred for life from returning to Australia where he had lived for over 40 years and had a need to take care of his elderly Australian citizen parents who were living in Australia.

142    The appellant submitted that there was nothing particularly outstanding about the behaviour and the possible future risk the appellant may pose for it to be in the national interest for him to be deported from Australia and never allowed to return (appellant’s submissions at [35]).

143    The appellant referred to the principal reasoning of the Tribunal as to why the discretion to revoke the cancellation ought to be exercised. The appellant submitted that the Minister failed to give adequate weight to a relevant factor of great importance, namely the decision of the Tribunal (appellant’s submissions [38]).

144    At the hearing, the appellant submitted that “it’s the over-emphasis of the national interest which is the disproportionality in this case and the under-estimate of the role of the … Tribunal, which is the body charged with dealing with these matters at the merit-review level” (transcript p 13 ll 8-11). The appellant continued: “The [Tribunal] after seeing the appellant give evidence, going through the matters in detail – including, of course, his previous criminal history – that was by no means excluded from consideration by the … Tribunal” (transcript p 13 ll 24-27).

145    The appellant submitted that, as to the event which led to the 12 month sentence, the Tribunal concluded “that it did lack moral turpitude”. This was referred to by the Minister as “in fact a culpable error”. The appellant submitted that the words used demonstrated “a failure to properly weigh the various factors”, “a failure to understand the nature of the event” (appellant’s submissions [32]). The appellant submitted that “the Minister might have had a different gloss on the nature of the conduct than what the [Tribunal] concluded, but nevertheless that’s what Parliament decided – that these sorts of issues should be dealt with [by] the … Tribunal” (transcript p 13 ll 33-36).

146    As the primary judge observed, allocation of disproportionate weight to one factor over another in reaching a decision can be unreasonable. However, to achieve such a result, the decision itself must lack for an evident and intelligible justification (Li at [76].) The court must evaluate the decision to determine whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses such a quality that it falls outside the range of lawful outcomes (see BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420 at [137]).

147    Principles relating to legal unreasonableness were summarised by Allsop CJ in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.

148    His Honour observed:

7.    There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular reasonableness …

8.    The content of the concept of legal reasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to the reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66], and [105].

149    Unlike merits review, the role of the Court is not to replace the decision by reference to the decision that the Court may favour.

150    The primary judge pointed to the fact that the appellant’s argument was expressed at the level of a disagreement with the view taken by the Minister as to whether it was appropriate in this case for the visa to be cancelled. The appellant does not establish that the view was beyond the area of decisional freedom of the Minister, that the Minister’s decision was one which no reasonable decision-maker in the circumstances could have made. As was observed in Minister for Migration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 by Kiefel CJ, the test for unreasonableness is necessarily stringent. The courts will not lightly interfere with the exercise of a statutory power involving an area of discretion.

151    As to the submission concerning “the under-estimate of the role of the [Tribunal]” based on the proposition that the legislative intention was that “these sorts of issues” should be dealt with by the Tribunal, for the reasons outlined in relation to grounds 1 and 2, this proposition is not consistent with the provisions of the legislation which allows the Minister to exercise a discretion to set aside the decision of the Tribunal.

152    The same error is evident in the appellant’s submission regarding the suggested “over-emphasis of the national interest”, being the disproportionality, and “the under-estimate of the role of the [Tribunal]”.

153    The Minister’s power under s 501BA to overturn the Tribunal’s decision only arises where the Minister is satisfied as to two things, namely that the person does not pass the character test and the cancellation is in the national interest.

154    Of course, prior to the consideration by the Minister, the question of the character test will have been considered by the Tribunal. The additional matter which the Minister must consider – and be satisfied about – is whether the cancellation is in the national interest. As has been discussed in relation to grounds 1 and 2, the national interest is not a matter which is relevant to the Tribunal’s decision.

155    The purpose for the conferral of the statutory power (see Li and SZVFW) was, from the words of the section, that a decision be taken in the national interest. For this reason, the focus of the Minister must be on the national interest question.

156    The fact that the Minister might “have a different gloss on the conduct than what the Tribunal decided” does not mean that the Minister’s decision was legally unreasonable or lacked proportionality. The Minister was not required to take a similar view to that of the Tribunal as to whether the offending lacked moral turpitude.

157    The Minister referred to the particular consequences for the appellant including considerations that might support not setting aside the Tribunal decision, for example, the best interests of minor children, ties to Australia (including the appellant looking after his parents’ needs and the sadness, disappointment and upset caused to the parents if the appellant were removed), and the extent of impediments if removed.

158    The Minister outlined the views of the Tribunal and, where the Minister disagreed with the Tribunal, this was set out in the statement of reasons and the rationale was outlined.

159    The very nature of a power such as that contained in s 501BA (which is to set aside the decision of the Tribunal) means that the Minister must make an independent decision taking into account all the factors (which might include the reasoning of the Tribunal) relevant to the national interest.

160    The primary judge concluded that the Minister’s view, that cancelling the visa was in the national interest, had evident and intelligible justification. It falls within the area of decisional freedom. There is no legal error evident in this conclusion.

GROUND 5

161    Ground 5 is based upon the premise that judicial power cannot be confined, in the sense of eliminating a substantial strand of the process of determining if the constitutional writ can be granted (appellant’s submissions at [40]).

162    The appellant referred to the decision in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 where it was observed (at [104]) that “[t]he Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the power of the Parliament or of the Executive to avoid, or confine, judicial review”.

163    The appellant referred to s 501BA(3), which states “[t]he rules of natural justice do not apply to a decision under subsection (2)”. The appellant pointed to the fact that the rules of natural justice also encompass bias and that the absence of bias is, of course, fundamental to the Australian legal system of justice (submissions at [42]-[43]). The appellant submitted that no law can abolish natural justice to the extent that it no longer applies to an officer of the Commonwealth in the context of constitutional writs under s 75(v) of the Constitution.

164     The primary judge referred to the decision in The Commissioner of Police v Tanos (1958) 98 CLR 383 where it was said (at 395-396):

… it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceedings he be afforded an adequate opportunity of being heard … But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment …

Reference was also made to Annetts v McCann (1990) 170 CLR 596 and Commissioner of the Australian Police Force v Luppino [2021] FCAFC 43; (2021) 284 FCR 223.

165    The primary judge concluded that the provisions of s 501BA(3) make the intention of the Legislature clear.

166    In this respect, the primary judge referred to Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12 where it was said:

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 [Migration] Act, how he or she will go about making a decision contemplated by s 502BA(2).

167    The primary judge was correct in concluding that the terms of s 75 (v) of the Constitution do not invalidate s 501BA(3) of the Migration Act.

GROUND 4

168    At the hearing of the appeal, the appellant did not press ground 4 (transcript p 16 ll 30-37).

CONCLUSION

169    The order of the Court will be:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

Associate:

Dated:    26 August 2022