Federal Court of Australia

Okoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 53

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal is refused.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

4.    The appellant may apply to vary order 3 by filing a written submission of no more than 2 pages within 14 days of the date of these orders.

5.    If the appellant applies under order 4 to vary order 3, the first respondent may file a written submission in response of no more than 2 pages within a further 7 days.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from a judgment of a single judge of this Court dismissing Mr Emmanuel Eghonghon Okoh, the appellant’s, application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) given on 10 June 2021. By that decision, the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) made on 4 June 2020 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the appellant’s visa.

2    The appellant filed a notice of appeal on 30 September 2022 which stated two grounds of appeal. Subsequently, Mr Albert and Ms Laycock-Walsh of counsel agreed to represent the appellant on a pro bono basis. On 16 February 2023, counsel filed written submissions on behalf of the appellant together with a proposed amended notice of appeal which retained ground 1 of the original notice of appeal, deleted ground 2 of the original notice of appeal and proposed a new ground 2 (which had not been raised before the primary judge).

3    Ground 1 of the original notice of appeal is as follows:

The Honourable Justice of the Federal Court erred in concluding that the Second Respondent had not fallen into jurisdictional error by failing to consider the Appellant's mental health when considering the impediments to the Appellant's return to Nigeria.

4    The proposed new ground 2 is as follows:

The Tribunal lacked jurisdiction by reason that the cancellation decision on which it was premised was legally ineffective because it arose from a denial of natural justice concerning which cancellation power under s 501 or s 116 of the Migration Act 1958 (Cth) to exercise in respect of the Appellant’s visa.

5    On 23 February 2023, the Minister filed an interlocutory application seeking orders that the hearing of the appeal on 2 March 2023 be vacated and the appeal be listed for final hearing on a date not before the delivery of judgment in Federal Court proceeding WAD122/2022 (Motufoaki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor). The application was supported by an affidavit of Adam Cunynghame affirmed on 23 February 2023 in which Mr Cunynghame explained that the issue sought to be agitated by proposed ground 2 was argued (by counsel appearing for the appellant in this proceeding) before the Full Court on 16 November 2022 in the above-mentioned proceeding in a similar factual context and that judgment was reserved. The Minister sought an adjournment of the hearing of this appeal to avoid two separately constituted benches of the Full Court deciding the same issue.

6    The appellant opposed the adjournment of the hearing of the appeal.

7    The interlocutory application to adjourn the date for the hearing of the appeal was heard by Thomas and O’Bryan JJ on 28 February 2023. A significant factor on the application was that the appellant is currently in immigration detention, and an adjournment of the hearing of the appeal would necessarily extend the period of detention. The Court raised with the parties the possibility of hearing ground 1 on the listed date for the appeal, while deferring proposed ground 2 until the Full Court had delivered judgment in proceeding WAD122/2022. Counsel for Mr Okoh submitted that the Full Court decision in proceeding WAD122/2022 may not be determinative of proposed ground 2 in this appeal because there are differences in the factual circumstances of each case. The Court determined that it should proceed to hear the appeal and dismissed the application for an adjournment. There is a question about the costs of the Minister’s interlocutory application which we will return to at the end of these reasons.

8    For the reasons set out below, appeal ground 1 is rejected and leave to raise proposed ground 2 is refused. It follows that the appeal will be dismissed.

Background

9    The appellant was born in Nigeria in December 1993. He immigrated to Australia in June 2014 on a student visa. Later, he was granted a Class SN Subclass 190 Skilled-Nominated (Permanent) visa. He facilitated a fraud perpetrated by others who caused money owing by one Australian business to another to be diverted to his bank account in consequence of the malicious interception of email correspondence and the alteration of the payee bank account details on a tax invoice. This is a familiar form of cyber fraud. The money having been received into the appellant’s bank account, the appellant subsequently transferred parts of it to a person or persons unknown who were the co-offenders. The appellant, however, received his “cut” of the proceeds.

10    In November 2017, Northern Territory Police commenced an investigation into persons suspected of receiving funds obtained in consequence of cyber fraud. Ultimately the appellant was charged with dealing with property which was the proceeds of crime to the value of $42,591.18, contrary to s 231B of the Criminal Code Act 1983 (NT). He pleaded guilty and was subsequently convicted and sentenced by Riley AJ in the Supreme Court of the Northern Territory on 29 March 2019 to imprisonment for three years with a non-parole period of one year and six months backdated to 28 June 2018.

11    On 7 October 2019, a delegate of the Minister for the Department of Home Affairs cancelled the appellant’s visa pursuant to s 501(3A) of the Act because, at that time, the appellant did not pass the character test and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Northern Territory. Notice of that decision was conveyed by hand-delivery to the appellant on 7 October 2019. The appellant was invited to make representations to the Minister about revoking the cancellation decision as required by s 501C(3)(b) of the Act. The appellant made representations on 15 October 2019. Thereafter, he provided additional information in support of his representations, some of it in response to particular material that was to be placed before a delegate of the Minister as the decision-maker.

12    On 4 June 2020, the appellant was advised that the delegate had decided not to revoke the cancellation decision under s 501CA(4) of the Act. Thereafter, the appellant applied to the Tribunal for review of the non-revocation decision. The Tribunal dismissed the application on 26 August 2020. On 10 February 2021, Derrington J set aside that decision of the Tribunal and issued a writ of mandamus requiring the Tribunal to determine the review application according to law: Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84.

13    A second hearing took place before the Tribunal (differently constituted) and, for reasons published on 10 June 2021, the review application was dismissed: Okoh v Minister for Immigration, Citizenship and Multicultural Affairs [2021] AATA 1662 (TD). The appellant had the benefit of legal representation in that matter.

14    On 7 July 2021, the appellant filed an originating application for review in this Court. He did not at that time have legal representation. Subsequently, he secured legal assistance and filed an amended originating application on 22 June 2022. He raised three grounds of jurisdictional error by the Tribunal: a failure to consider relevant material regarding his mental health and treatment needs, legal unreasonableness in the finding by the Tribunal that there were not significant impediments to the appellant’s ability to establish himself if relocated to Nigeria, and legal unreasonableness in various findings to the effect that he did not suffer from medical or psychological impairment and was in good health.

15    Justice Middleton for reasons published on 2 September 2022 dismissed the application with costs: Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1011 (PJ). Thereafter, as noted the appellant filed his notice of appeal from the decision of the primary judge.

The Tribunal decision

16    It is only necessary to set out how the Tribunal approached the issue of the appellant’s mental health when considering the extent of impediments that he may face if removed to Nigeria as required by cl 9.2 of Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), as made pursuant to s 499 of the Act.

17    The material before the Tribunal relevant to this claim may be summarised as follows. On 14 October 2019, the appellant completed a Personal Circumstances Form to which he attached a number of hand written documents as his representation pursuant to s 501CA of the Act. In answer to a standard form question: “Do you have any diagnosed medical or psychological conditions”, he answered “no”. In attachment G, concerned with his risk of reoffending, he detailed an event which occurred in Nigeria in November 2010 where he witnessed an attack at a market by Islamic extremists on Christians. As he ran for his life, he saw people stabbed and murdered. Two of his classmates at university were victims. This event resulted in significant insomnia, fatigue and discomfort. The appellant did not state that this event continued to impact his mental health in 2019. In attachment K, concerned with other problems that he would face if returned to Nigeria, he listed unemployment, poverty, police brutality, corruption and “no social, medical and/or economic support unless one is wealthy”.

18    On 4 May 2020, the appellant provided a typed written statement of further information. Amongst other things, he stated that he was then in a committed relationship and during his period of incarceration he had grown in faith and matured as a person. He did not mention any mental health impairment. On 5 July 2020, Dr Phil Watts, an adjunct associate professor in clinical psychology, provided a report to the appellant’s migration agent in consequence of a telehealth consultation on 2 July 2020. He recorded that the appellant “described a number of feelings of stress and depression, but did not present with any major mental illness, such as schizophrenia or bipolar disorder”. The report mentions the market attack in Nigeria and that the appellant “indicated this had been quite scary growing up and said he still had nightmares about the village attack”. The report continues:

Mr Okoh explained that he was not diagnosed with mental health problem [sic] but since the incident in Nigeria where he witnessed a number of people killed he had been suffering from anxiety and some fearfulness and avoidance. The trauma was compound [sic] after he had been working as a carer in Australia, when a friend/client who he looked after passed away. He said that as a result of this, he tended to bottle up his problems and that he increased in [sic] drinking. The passing of his friend was in the lead up to the offence.

19    Dr Watts conducted a personality assessment which:

..showed moderately high levels of stress, depression, anxiety and paranoia. I note particularly that the Trauma [sic] scale was elevated. This was likely to have been as a product of witnessing the incident where the Christians were attacked by Muslims and/or his friend dying. The depression was showing as clinical depression. The paranoia particularly showing difficulties in trust relationships.

20    The discussion section of the report focuses upon the appellant’s offending, concludes that it was not part of his normal character and that the likelihood of reoffending is low.

21    For the purpose of the first hearing before the Tribunal, the appellant provided a typewritten witness statement. In it no claim is made that he suffers from a mental health impairment. In his Statement of Facts, Issues and Contentions dated 10 July 2020, authored by the appellant’s migration agent and presented to the first Tribunal hearing, when dealing with the extent of impediments if removed it was said:

The applicant contends that he will suffer through severe hardship should he be removed to Nigeria.

Although he is young and healthy, and will most likely not face any substantial language or cultural barriers, the applicant fears that the current socio-economic climate in Nigeria is extremely concerning, especially in the face of the global pandemic, Coronavirus.

Employment prospects, medical access, social welfare, and economic support will be extremely scarce in his home country and he fears this could be detrimental to his mental, and physical well-being.

22    On 3 August 2020, a solicitor lodged a supplementary Statement of Facts, Issues and Contentions for the purposes of the first Tribunal hearing. No claim is made in it that the appellant suffers from a mental health impairment.

23    On 17 March 2021, a psychologist, Mr Uwe Schaub, provided a “letter of support” for the purpose of the second Tribunal hearing. Mr Schaub assessed the appellant over a total of 12 sessions, five of which were in person. His report is very brief. The substantive paragraphs provide:

Mr OKOH met the criteria for PTSD and was referred to me for treatment. He also complained about sleep disturbances and frequent nightmares, as well as periods of anxiety and depression. As an EMDR practitioner I am aware that EMDR is the best treatment choice for individuals suffering from PTSD, but I am also aware that providing EMDR in an environment like YHDC is not recommended. Hence, Mr OKOH’s intervention included only some aspects of EMDR (specifically the grounding component). He was also provided with psycho-education, CBT, Mindfulness, and various strategies to address his problems with sleep and nightmares. Furthermore, he was taught visualisation, breathing and relaxation exercises to manage distress.

Mr OKOH was very committed to his intervention as was indicated by his diligent engagement. As a result, he reported improvements in all areas and total absence of nightmares and the absence of sleep difficulties. Mr OKOH has demonstrated good attention and recall, good understanding and application of information, and impressed as calm and settled as well as emotionally resilient with a positive outlook. Despite his less than favourable environment, Mr OKOH nowadays presents as a calm and approachable individual who is goal directed. He also demonstrated insight, empathy, and remorse over the crime he committed. Mr OKOH stated to me that he has separated himself from negative peer influences and that he was now very selective of those individuals he voluntarily associates with.

I hope that my stated observations and experiences with Mr OKOH assist in formulating a clearer picture of his mental health and his character.

24    “EMDR” is the accepted acronym for eye movement desensitisation and reprocessing and the acronym “YHDC” is a reference to the Yongah Hill Detention Centre.

25    The appellant’s counsel on 3 May 2021, prepared a Statement of Facts, Issues and Contentions for the purpose of the second Tribunal hearing. In dealing with the risk of reoffending, reliance is placed on the report of Dr Watts and it was stated that: “the Applicant is undergoing treatment from a psychologist for PTSD and his mental health has improved”. When dealing with the extent of impediments if removed it was said:

There is no impediment to the Applicant establishing himself in Nigeria presented by his age, health, language or culture.

The real impediments to the Applicant establishing himself in Nigeria will be his separation from his partner, family, nieces and nephews, and the additional financial burden he will be for his parents. This will be a source of stress in his life that may impede his ability to establish himself and maintain a basic standard of living.

26    The appellant provided a further undated witness statement and when addressing his rehabilitation since 6 January 2020 said:

I have voluntarily assessed [sic] mental health and engaged with their practitioners on and off the centre after receiving a reply from the AAT last year August (2020).

I have had psychological intervention, and spoken with a psychologist on and off the centre for over 12 sessions…

Cognitive behaviour therapy (CBT) when used properly would enable me to predict situations, be mindful of and managing my negative thoughts, recognise and manage my emotional state, learn to recognise and manage my physical state with the corresponding behaviour while also providing contingencies plan – good alternative.

This psychological and emotional growth I have undertaken will keep me safe, the victim safe and the community safe if given a second chance.

27    The appellant did not say that he would likely suffer any deterioration in his mental health if returned to Nigeria. On 10 May 2021, the appellant provided a further written statement to the Tribunal. In it he relevantly repeats the statements that he made in his unsigned witness statement and does not add to that material. The primary focus of this witness statement is the risk of reoffending.

28    The Tribunal had the DFAT Country Information Report for Nigeria dated 3 December 2020 (the DFAT Report). Paragraph 2.24 of the DFAT Report records that mental health “has historically been neglected on Nigeria’s health and development policy agenda” and notes that it is estimated that one in four Nigerians suffer from mental illness but fewer than 10 per cent have access to the care they need. The paragraph concludes: “[m]any Nigerians suffering from mental illness seek treatment from traditional or faith-based healers rather than mental health professionals”.

29    In his evidence given to the Tribunal member at the second hearing, the appellant answered a number of questions from the member. In response to a question as to what services had been accessed during detention, the appellant mentioned his consultations with psychologists and the evidence proceeded as follows:

So do you think that the mental health services helped you?… Yes, it really helped me. I think that was the place where I could really open up and I could see the choices I made. I could understand the pain, the shame and the loss of trust the victims felt. Because when I opened up with the psychologist, it was a real eye opener for me. To see my actions, to see the decisions, the choices I made, and the people that got hurt. And it was also for me to see that the crime I committed, it’s not even about – it’s not merely about me. Before I used to focus on me, just trying to say I’m sorry. But with the psychologist, I got to know like the people I hurt, how they felt because of my actions. And it’s more of them than my own offending. And if it was me, how would I feel? So with the psychologist, that was where I had to open up and I could really see the impact of my behaviour and the crime I committed.

30    Later in his evidence there was this exchange with the Member, when giving evidence remotely:

Yes, can you just hold the line please, Mr Okoh. I’m just looking at a document, okay? Just wait for my question. Mr Okoh, if you were returned to Nigeria, you talk about the things that you’re worried about, you’re concerned about if that happened. I just want to give you another opportunity to explain to me, what are the things that you’re concerned about?… My mental health, job, the poverty.

Sorry, what was that?… Poverty. No adequate health care.

I understand your evidence in your personal circumstances form, it says you’re fit and have never felt better. Are you referring to any – having any health conditions at the moment?… Please come again, senior member.

In your documents that [sic] you have no health conditions or medications. When you say no adequate health care, are you referring to that because you have some conditions you need to tell me about or medication that you’re receiving?… No, senior member. I don’t have – the medication I’m on at the moment is just the sleeping pills.

So you’re concerned about your mental health, no job, poverty, no adequate health care. You did say that you would – if you went back, you would live with your parents. Why do you believe that you’d be in poverty if you were living with your parents?… My parents are retired. They have no pensions from the government. They depend on the money we sent to them from Australia, just to buy a loaf of bread that’s like, two dollars. They don’t have no income…..

31    In closing oral submissions, counsel for the appellant submitted to the Tribunal that:

The impediments consideration, now, obviously the applicant is very concerned about being removed to Nigeria but, given that that consideration is all about whether he can establish himself to a basic standard of living, I put it no higher than what has been put in the applicant’s statement of Facts, Issues and Contentions, which is that, while it will be obviously, be very upsetting to him to be removed, he’ll, obviously, be a burden on his parents, which the evidence tended to suggest are reliant already on his siblings in Australia to support themselves and that may have some impact, or cause him some difficulty, in establishing himself. I accept that if there is any weight to be given to this consideration, it will be slight and that these issues will be transient in nature in the sense that, given his qualifications, his age, his health and the fact that he can speak the language, that he will eventually be able to establish himself.

32    Counsel made no submission to the effect that the appellant would suffer impediments if removed due to his mental health or his inability to access appropriate medical services in Nigeria.

33    The Tribunal made some very adverse findings of certain evidence that the appellant produced. In particular the Tribunal concluded that a document purporting to be from a prospective employer was a forgery and the appellant knew it to be false when providing it to the Tribunal in an attempt to mislead it. He gave very unsatisfactory evidence, which the Tribunal did not accept, as to how it was possible to transmit $131,000 overseas in less than a 12 month period when his declared salary was between $80,000 and $120,000 per annum on average. The Tribunal recorded that the appellant “accepted he had previously lied to the Court and Tribunal despite taking oaths to tell the truth”.

34    When addressing the consequences of repatriation, the Tribunal at TD [63] found:

The Applicant said if repatriated to Nigeria he would live with his parents. His sister and her husband live nearby. When asked to elaborate on any fears he might have about repatriation, the Applicant responded that he was concerned about ‘my mental health, job, poverty, no adequate health care...no pensions from the Government.’ When put to the Applicant that his evidence did not disclose any current health conditions or medication, he agreed, stating that he was only currently taking sleeping pills. He said there was nothing for him in Nigeria, ‘no job, no opportunity to help people’. He would also lose his partner and family in Australia. He claimed that if allowed to remain in Australia he intended to repay the restitution ordered by the Court.

(Original emphasis.)

35    At TD [106] the Tribunal set out the relevant portion from the report of Mr Schaub and noted that he did not give oral evidence and could not be cross-examined on its content. At TD [114] the Tribunal set out extensive references from the report of Dr Watts. Dr Watts did give oral evidence and was cross-examined. He accepted that his opinion was based on the history given to him by the appellant and that, in several respects, this history was incomplete. Tellingly, Dr Watts accepted that it is “difficult to rely on the information provided” once he was informed that the appellant had not been truthful in adducing certain evidence at each hearing before the Tribunal (at TD [119]). When pressed further, Dr Watts accepted that this behaviour “has an element of deception that is quite concerning” and that this increased the risk of reoffending for some type of fraudulent offence (at TD [120]).

36    At TD [127], the Tribunal placed limited weight on the letter from Mr Schaub and treated it as lay rather than expert opinion evidence. The Tribunal expressed concern that the letter “lacks specific detail”, does not explain who made the diagnosis of PTSD (that is not contained in the report of Dr Watts) and failed to explain the EMDR assessment in any detail. Overall, the Tribunal concluded that the appellant’s offending “was not isolated, opportunistic, or impulsive, but a planned and deliberate course of conduct, encompassing an intention to continue offending through romance frauds” and in consequence expressed “no confidence in his claimed new-found commitment to the truth. The Tribunal finds he has a continuing impulse towards dishonesty, which reflects adversely on his moral qualities”: TD [128].

37    From TD [169] the Tribunal considered the extent of impediments if removed by reference to clause 9.2(1) of Direction 90 and relevantly found at TD [170] and [173] that:

The Applicant is 27 years of age, reports no diagnosed medical or psychological conditions, claims to be in the best physical shape of his life, and aspires to an immediate resumption of work if released. He conceded there is no impediment to re-establishing himself in Nigeria presented by his age, health, language, or culture. The Applicant’s parents and a sister still live in Nigeria and he most recently travelled there for a holiday in 2018.

…

The Applicant has spent most of his life in Nigeria. He completed an undergraduate degree there as an adult and then completed another undergraduate degree in Australia. He is a relatively young man in his 20s, in good health, and reports a consistent history of work. There are no age, health, linguistic, or cultural barriers to his repatriation. There is also no evidence he would be treated differently to any other Nigerian citizen. Given the available evidence, the Tribunal is satisfied he has the capacity to establish himself and maintain basic living standards, in the context of what is generally available to other Nigerian citizens

(Footnotes omitted.)

38    The Tribunal summarised its conclusions from TD [191]. It placed considerable weight upon the appellant’s dishonesty in the commission of the offence for which he was imprisoned, emphasised continuing dishonesty in the attempt to submit a false document to the Tribunal and ultimately found that the appellant (at TD [192]):

…demonstrates a concerning impulse towards dishonesty, which reflects adversely on his moral qualities. His risk of reoffending is real and unacceptable.

39    The Tribunal summarised the appellant’s ties to Australia and the impact on his partner and his nephews and nieces. At TD [196] the Tribunal noted that the appellant had spent most of his life in Nigeria, had completed undergraduate university degrees in Nigeria and in Australia and:

He is a healthy young man in his 20s who reports a consistent history of work with no age, health, linguistic or cultural barriers. There is no evidence he would be treated differently to other Nigerian citizens if returned or that he does not have the resources or capacity to re-establish himself and provide for his basic living standards, in the context of what is generally available to other Nigerian citizens.

40    Ultimately the Tribunal concluded at TD [198] that protection of the Australian community and the expectations of the Australian community “considerably outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children in Australia’ and the relevant other considerations in this matter” (emphasis in original).

The appeal to the primary judge

41    Before the primary judge, the appellant relied on an amended originating application filed on 22 June 2022, authored by new lawyers and which raised three grounds which his Honour condensed and summarised at PJ [20], being that the Tribunal:

(a)    failed to consider material before it regarding the applicant’s poor mental health and treatment needs;

(b)    unreasonably concluded that the applicant had no diagnosed medical or psychological conditions and was in good health; and

(c)    as a consequence, unreasonably concluded that there was no significant impediment to his establishment and maintenance of basic living standards in Nigeria.

42    The primary judge set out the relevant provision from cl 9.2 of Direction 90 which is concerned with the non-citizen’s age and health and any medical support available in the home country of the person: PJ [14]. His Honour accepted that the consideration of the extent of impediments “requires consideration of the extent to which the person’s particular personal circumstances would impede their establishment and their maintenance of the basic living standards generally available in that country”, by reference to Vural v Minister for Home Affairs [2020] FCA 667 at [33]–[36] per Anderson J: PJ [15]. At PJ [17], his Honour set out the general approach to consideration of the decision-maker’s duty to consider representations as explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 (Plaintiff M1) at [22]–[27] per Kiefel CJ, Keane, Gordon and Steward JJ. His Honour emphasised the passage at [25] from Plaintiff M1 that:

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

(Original emphasis.)

43    And then at PJ [18] the primary judge considered it “useful” to set out some of the principles from ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164 at [61] per Reeves, Banks-Smith and Anastassiou JJ:

(a)    whether a claim clearly emerges from the material “involves an issue of judgement”: DOU16 v Minister for Home Affairs (2019) 272 FCR 358; [2019] FCAFC 212 at [35];

(b)    such a finding is not to be made lightly and the fact that a claim might be said to arise from the materials is not enough (NABE at [68]);

(c)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(d)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

44    Applying those principles, the primary judge was not satisfied that the Tribunal had failed in its duty to consider material that was before it relating to the appellant’s mental health and treatment needs should he be returned to Nigeria, setting out at PJ [32]–[51] that material which we have summarised above. His Honour reasoned at PJ [52] that, contrary to the submissions put to him by the appellant, when the material is considered as a whole it demonstrates that:

(1)    on 5 July 2020, Dr Watts’ opinion was that:

(a)    the applicant was not suffering from any cognitive impairment or major mental illness;

(b)    the applicant showed moderately high levels of stress, depression, anxiety and paranoia; and

(c)    the applicant’s depression was capable of being characterised as clinical depression;

(2)    subsequently, while in immigration detention, the applicant received treatment from psychologists, and that treatment brought about significant improvements in the applicant’s mental health;

(3)    by about 3 May 2021 (the date of the SOFIC and, it can be inferred, the undated witness statement), there was no claim of impediment to the applicant establishing himself in Nigeria by reason of his health, and the applicant claimed to be in the best shape of his life; and

(4)    on 31 May 2021, while the applicant expressed concern about his mental health should he be returned to Nigeria, the applicant also asserted he had no health conditions, and the only medication that he was taking was sleeping pills.

(5)    on 1 June 2021, in closing submissions before the Tribunal, the applicant’s counsel confirmed that the position stated in the SOFIC continued to apply — namely, that there was no impediment to the applicant establishing himself in Nigeria by reason of his health.

45    Accordingly, the primary judge concluded at PJ [53] that:

Having particular regard to the principles from ESQ18 I set out earlier in these reasons, it cannot be concluded that a claim that the applicant’s mental health was an impediment to his return to Nigeria was a substantial or clearly articulated argument or otherwise clearly arose from the materials. In particular, the Watts Report and the Schaub Letter did not contain any representation as to any mental health impediment to the applicant’s return to Nigeria. While the applicant expressed concern about his mental health at the Tribunal hearing, after having regard to his further answers to the Tribunal’s questions and his counsel twice submitting that there was no impediment due to the applicant’s health, the Tribunal would be entitled to consider that the mental health impediment claim was not pressed. In light of the applicant’s evidence and submissions as a whole, I do not consider that any such claim triggered the Tribunal’s duty to consider the extent of such an impediment under clause 9.2 of the Direction.

46    His Honour in any event reasoned at PJ [54]–[61] that the Tribunal did to an extent consider the appellant’s health in the analysis of the report of Dr Watts at TD [114]–[115], the report from Dr Schaub at TD [106] and [127] and the applicant’s witness statement at TD [106]–[107]. Although these matters were considered as part of the assessment of the risk of reoffending, his Honour concluded at PJ [55] that: “However, the ready inference is that the Tribunal considered those matters as a whole.” At PJ [56] his Honour set out TD [63] (referenced above) and reasoned at PJ [57] that: “the only available inference is that the Tribunal considered the applicant’s evidence on that point, including his evidence that he feared returning to Nigeria because of “my mental health” and “no adequate healthcare.”

47    In rejecting the submission that the Tribunal misunderstood the appellant’s representations made during the hearing that he was “just” on sleeping pills, “as a concession that he did not suffer from any health conditions” (PJ [62]), his Honour drew attention to the fact that the Tribunal noted “shortcomings” in relation to the report of Dr Watts and that his findings “were historical” and thus not evidence as to the appellant’s mental health at the time of the hearing: PJ [63]. Further, his Honour reasoned at PJ [65] that any contention that the appellant required continuing mental health treatment “must be considered in the light of the applicant’s representations as a whole” including, and in particular, his Statement of Facts, Issues and Contentions and the closing submissions to the Tribunal which did not press the mental health claim. Having reasoned in what way, his Honour had no difficulty in rejecting the grounds concerned with legal unreasonableness: PJ [67]–[68].

Appeal ground 1

The parties’ submissions

48    The appellant submits that this ground “is not one of failing to consider an integer of the claim, but a failure to engage with material before the Tribunal”: referring to Plaintiff M1 at [27]. Emphasis is placed on the requirement to consider claims which arise squarely on the materials before the Tribunal, even if not clearly articulated: CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [104] per Katzmann, Charlesworth and Burley JJ. In the appellant’s written case four errors are said to infect the reasoning of the primary judge. In summary:

(a)    reasoning beyond the findings of the Tribunal at PJ [28]–[52] and in a way that the Tribunal did not;

(b)    placing significant weight on submissions by counsel for the appellant at PJ [41], [42], [51], [61] and [65] when the obligation of the Tribunal is to consider “the totality of the material before it” and that concessions by counsel do not deflect from that task;

(c)    the material considered does not “on a fair assessment” undermine the appellant’s mental health claims; and

(d)    incorrectly placing significance at PJ [44]–[46] and [48] on the appellant stating that his health was presently good.

49    In oral submissions the argument focussed in considerable detail and with emphasis on portions of the material which was before the Tribunal and its reasons, rather than why it is said that the primary judge erred, which received only scant attention. It should not be necessary to repeat that this Court on appeal is only concerned with whether the primary judge erred: Allesch v Maunz (2000) 203 CLR 172 at [23] per Gaudron, McHugh, Gummow and Hayne JJ; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424.

50    In contrast, counsel for the Minister, Mr N Wood SC and Ms K McInness, submitted that the primary judge was correct to infer that all of the appellant’s evidence relating to his mental health as an impediment to his return to Nigeria was considered by the Tribunal but was not given significant weight “in circumstances where the appellant accepted that he had no health conditions and was not taking any medication except sleeping pills and it was conceded that there was no impediment to the appellant returning to Nigeria presented by his health”. In answer to the four contended errors by the primary judge, the Minister in summary submitted:

(a)    the Tribunal was not obliged to give reasons for not considering a claim that was not made;

(b)    how the appellant’s representative presented the matter to the Tribunal was relevant and informative as to the nature and content of the representations, and the concessions made must be viewed in that context; and

(c)    whether the appellant had a mental health issue at the time of the hearing was a matter for the Tribunal and the appellant’s arguments amount to no more than emphatic disagreement with the Tribunal’s findings.

Consideration

51    The appellant’s arguments impermissibly fail to read all of the material before the Tribunal as a whole and reduce to the point of distortion how the case was framed and emphasised before it. It is no answer to this to resort to the broad proposition that the Tribunal must make the correct or preferable decision on the materials before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14] per Kiefel CJ, Keane and Nettle JJ. That statement of principle does not operate in a vacuum as explained in Plaintiff M1 at [25] per Kiefel CJ, Keane, Gordon and Steward JJ, which the primary judge emphasised. Further, in Plaintiff M1 at [27] the plurality relevantly stated:

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials, or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(Footnotes omitted.)

52    The primary judge set out these passages and correctly applied the analysis required.

53    The issue in this case is the level of engagement required by the Tribunal in the context of how the case was put to it. The appellant places emphasis on Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 and McKeown v Repatriation Commission (1995) 39 ALD 30 to support the submission that perceived concessions or the form of submissions made do not alter the Tribunal’s statutory task. However, much depends on context and it is often important where, as here, an applicant has legal representation before the Tribunal as explained by Flick J in Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; 49 AAR 77 at [17] –[21]. His Honour commenced by observing at [17] that:

In determining the "correct or preferable" decision, the Tribunal will ordinarily be best "guided by the parties" in identifying the issues.

(Original emphasis. Citations omitted.)

54    His Honour acknowledged that in some circumstances the Tribunal will be obliged to raise issues which the parties have not and continued at [18]:

In determining the "correct or preferable" decision the Tribunal must also be satisfied that there is "enough material" before it on a matter of central importance to the decision to be reached (Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 54 FLR 334 at 343 per Bowen CJ). And "[t]he Tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties’ submissions [take]": McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F & F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing).

55    As his Honour further acknowledged at [19], although the statutory task is unaltered where an applicant is unrepresented before the Tribunal, “[t]he more important and the more centrally relevant available evidence or an available submission may be to the decision to be made, the greater may be the necessity for the issue to be addressed and resolved – even if not otherwise addressed by an unrepresented party”. At [20], his Honour eschewed any general duty of the Tribunal “to pursue submissions not otherwise advanced” and continued:

The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1. It was said there that a "judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50], 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration & Citizenship [2007] FCA 1884 at [13]–[14] per Middleton J. In MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there “is no precise standard for determining when an issue is ‘raised squarely’, but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it”.

(Original emphasis.)

56    In ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 715, Allsop CJ at [61] adopted the summary of Flick J.

57    The appellant had the benefit of legal representation before both Tribunals. We reject the invitation to infer that the appellant’s counsel before the second Tribunal “got it wrong” and failed to emphasise the mental health contention as an impediment to removal. There is no basis to question the competence of representation or that forensic choices were made conformably with instructions: Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47 (Hong) at [43] per Bromwich and Wheelahan JJ. The primary judge did not err as asserted by placing significant weight on the submissions made by counsel for the appellant in framing his case to the Tribunal.

58    As to the submission that the primary judge somehow erred in failing to find that the material before the Tribunal “on a fair assessment” did not undermine the mental health claims, the appellant had multiple opportunities to assert mental ill-health and access to mental health services as an impediment to removal to Nigeria. He stated that he did not have any diagnosed medical or psychological condition in his representation of 14 October 2019. Although he did mention significant insomnia, fatigue and discomfort arising out of the murderous incident at the marketplace in Nigeria, he did not list those matters or his mental health is an impediment to removal. Nor is any contention made which links any claim to mental ill-health with an impediment to removal in his witness statement of 4 May 2020, his Statement of Facts, Issues and Contentions of 10 July 2020, his supplementary Statement of Facts, Issues and Contentions of 3 August 2020, his Statement of Facts, Issues and Contentions of 3 May 2021, his undated witness statement, or his further witness statement of 10 May 2021. To the extent that those documents do reference mental health, it is in the context of the likelihood of his reoffending.

59    The evidence of Dr Watts was comprehensively assessed by the Tribunal on the question of likelihood of reoffending and was discounted for the straightforward reason that the oral history provided by the appellant did not match the detailed facts before the Tribunal. It was clearly open to the Tribunal to reach that conclusion. Similarly, the Tribunal placed limited weight on the letter from Mr Schaub as lacking in specific detail and rising no higher than lay evidence. It was open to the Tribunal to so reason.

60    The oral evidence that the appellant gave to the Tribunal member when asked specifically about his mental health also focused upon the likelihood of reoffending. Although the Tribunal member asked him a question about “the things that you’re worried about” if returned to Nigeria (to which the appellant mentioned mental health, a job, poverty and “no adequate healthcare”), in answer to the next question regarding his statement in the personal circumstances form that he is fit and healthy, he stated that he was not on any medication, save for sleeping pills.

61    This contended error relies on a selective reading of some of the material before the Tribunal and fails to consider the entirety of the context of how the case was developed and presented where the primary emphasis on mental health was the likelihood of reoffending.

62    Contrary to the appellant’s submissions, the primary judge did not stray beyond the factual findings of the Tribunal at PJ [28]–[52]. The primary difficulty with that contention is the failure by the appellant to identify specific error within those 25 paragraphs. It is not the function of this Court to trawl through each paragraph seeking to detect an error that might match the appeal ground. Moreover, his Honour’s analysis is methodical, comprehensive and correct.

63    The appellant submitted that if the Tribunal considered the mental health impediment to be “weak or even abandoned, it could have said so”. With respect, that submission assumes favourably to the appellant that this claim was clearly made and maintained. It was not. The submission fails to grapple with the long and consistent line of authority in this Court that the Tribunal’s review function only requires consideration of “substantial clearly articulated argument relying on established facts” or which “clearly emerge from the materials”: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ. See also, for example, Hong at [48]-[51] per Bromwich and Wheelahan JJ and Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 at [27] per Burley, Colvin and Jackson JJ.

64    Finally under this ground, there is the contention that the primary judge erred by wrongly attributing significance to the appellant’s claims that he was in good health. With respect, this submission is difficult to follow. The primary judge at PJ [44]–[46] and [48] extracted part of the material before the Tribunal including evidence contained in the appellant’s witness statements and an answer given in examination in chief to his counsel where he was asked:

Mr Glenister: So do you think that the mental health services help you?

Applicant: yes, it really helped me. I think that was the place where I could really open up and I could see the choices I made. I can understand the pain, the shame and the loss of trust the victims felt.

65    The appellant’s submissions then ignore the next paragraph at PJ [49], where his Honour set out the specific questions put by the Tribunal member which we have set out above and which elicited the answer that the appellant was not presently on medication, only sleeping pills, and PJ [50] where the primary judge set out the appellant’s answer to the mental health question on the Personal Circumstances Form.

66    Contrary to the appellant’s submission, the primary judge did not err in concluding at PJ [53] that the appellant did not articulate any mental health issue as an impediment to return to Nigeria as a substantial and clearly articulated argument before the Tribunal.

67    For these reasons, there is no merit in any of the four errors relied upon by the appellant in support of ground 1.

Proposed ground 2

Applicable principles

68    By his proposed amended notice of appeal, the appellant seeks leave to raise a ground of alleged error in the Tribunal's decision that was not raised before the primary judge. It is important to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. Nevertheless, an appellate court may allow a point to be raised for the first time on appeal where it is expedient and in the interests of justice and where the new ground could not have been met by calling evidence and would not have resulted in the case being differently conducted: Water Board v Moustakas (1988) 180 CLR 491 (Moustakas) at 497 per Mason CJ, Wilson, Brennan and Dawson JJ. This Court has recognised that special circumstances frequently arise in immigration cases. The usual approach of the Court in such cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

69    The merit of any proposed new ground is an important consideration to the grant of leave. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

70    However, this does not mean that, in determining the question of leave, an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to decide whether the proposed new appeal ground has a reasonable prospect of success.

71    In the present case, all relevant factors weigh against the grant of leave: as explained below, the issue sought to be raised could have been raised when the appellant’s visa was cancelled on 7 October 2019 and at all times since; there is no adequate explanation for the failure to raise the issue at an earlier point in time, least of all at the hearing before the primary judge where the appellant was represented by pro bono counsel (albeit different counsel to this appeal); the Minister is prejudiced because there is a real possibility that evidence could have been adduced in response to the issue; and the ground has little prospect of success.

The appellant’s contentions

72    By proposed new ground 2, the appellant contends that the Tribunal lacked jurisdiction to review the delegate’s decision under s 501CA(4) by reason that the cancellation decision on which it was premised was legally ineffective because it arose from a denial of natural justice concerning which cancellation power under s 501 or s 116 of the Act to exercise in respect of the appellant’s visa.

73    In respect of leave, the appellant submitted that the High Court has given dominant consideration to the question of whether the ground was meritorious (referring to WET044 v The Republic of Nauru [2018] HCA 14; 92 ALJR 418 at [7], [18] and [27] and TTY167 v Republic of Nauru [2018] HCA 61; 93 ALJR 111 at [17] and [22]). The appellant further submitted that:

(a)    there would be no relevant prejudice to the Minister (other than, potentially, with respect to costs) if leave was granted;

(b)    relatedly, no new facts or evidence are relied upon to substantiate the ground, which concerns only a question of law based on the existing material;

(c)    there is nothing to indicate that the appellant, for some strategic advantage, deliberately did not raise this ground below; and

(d)    the fact that the appellant was represented by counsel previously is not determinative of this application either way (referring to CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at [37]).

74    In his submissions, the appellant made it clear that he does not allege a denial of natural justice by the Minister’s delegate in cancelling his visa under s 501(3A), nor by the Tribunal in refusing to revoke the cancellation under s 501CA(4). Rather, the appellant contends that the Minister denied him natural justice in respect of a decision prior to the cancellation of the appellant’s visa under s 501(3A). The appellant contends that he was denied natural justice in the decision by the Minister or the Minister’s delegate to exercise one cancellation power under s 501 as compared with another – s 501(3A) instead of ss 501(2) or 116(1)(e) or any one of the other, co-extensive cancellation powers listed in s 118.

75    The appellant submitted that, absent plain language to the contrary, Parliament intends all grants of statutory power to be conditioned by a requirement to afford natural justice to a person whose interests might be prejudiced by the exercise of that power (referring to Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Plaintiff M61) at [74]). The appellant acknowledged that such an implication of statutory construction can be ousted, but only by clear and plain words to that effect (referring to Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ) at [75]). The appellant submitted that the exclusion of the rules of natural justice by s 501(5) only applies “to a decision under subsection (3) or (3A)”; the exclusion is not expressed to apply to a precursor decision whether to exercise the power of cancellation in ss 501(2) or 501(3A).

76    With respect to the factual circumstances, the appellant advanced the following submissions:

(a)    On 29 March 2019, the appellant was sentenced to a three year term of imprisonment. From then, his visa was liable to cancellation under, among other provisions, s 501(2) of the Act. From then, he could have been provided with an opportunity to address the Minister on which cancellation power should have been considered and applied in respect of his visa.

(b)    On 7 May 2019, the appellant wrote to the National Character Consideration Centre of the Department. The appellant stated that he had been convicted of dealing with the proceeds of crime and sentenced to a three year term of imprisonment and acknowledged that he thereby failed the character test (in the Act). The appellant asked whether his visa had been or would be cancelled. The appellant also referred to the statement in Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA to the effect that cancellation decisions under s 501 should be made in a timely manner. The appellant requested that, if his visa were to be cancelled, he be provided with the necessary documents to make representations about the potential revocation of the cancellation.

(c)    On 7 October 2019, a delegate of the Minister cancelled the appellant’s visa under s 501(3A) and the appellant was notified of the cancellation on the same day. The appellant was given no opportunity to address the question of which visa cancellation power was to be exercised.

(d)    On 15 October 2019, the appellant made his first representations seeking revocation of the cancellation from prison.

(e)    The appellant was granted parole on 6 January 2020. Because his visa had been cancelled under s 501(3A), the appellant was detained under s 189. The appellant submitted that he would not have been detained if the visa had been cancelled under s 501(2), although the assumptions underpinning that submission were not made express. The appellant prepared further revocation representations in detention (on or around 31 March 2020, 30 April 2020 and 4 May 2020).

(f)    On 4 June 2020, a delegate of the Minister decided not to revoke the cancellation of the appellant's visa.

77    The appellant argued that he had an interest in which of the cancellation powers was considered for exercise in respect of his visa because the decision about which power was exercised had significant practical consequences. The decision to cancel his visa under s 501(3A) meant that the appellant was not at liberty during any part of the cancellation process, whereas he would have been had s 501(2) or s 116(1)(e) been applied instead (again, though, the assumptions underpinning that submission were not made express). This meant that the appellant went through the process of applying for the revocation of the cancellation without in-person family and social support. The appellant argued that it follows that he was denied procedural fairness on an exercise of public power which impacted his interests.

Consideration of the grant of leave

78    An initial question that arises is whether proposed ground 2 is capable of being raised in this appeal, being an appeal from an application for judicial review of a decision of the Tribunal not to revoke the cancellation of the appellant’s visa under s 501CA(4). Proposed ground 2 does not directly impugn the Tribunal’s decision. Rather, it seeks to impugn the prior decision made by the Minister’s delegate under s 501(3A) to cancel the appellant’s visa on the basis that the delegate (or the Minister) failed to afford the appellant natural justice in connection with an asserted anterior decision to choose between cancellation powers. The appellant’s contention is that the delegate, and the Tribunal on review, has no power to make a decision under s 501CA(4) if the prior decision made under s 501(3A) is invalid. Expressed differently, the contention is that s 501CA(1) requires there to be, as a precondition to the exercise of power under s 501CA(4), a legally valid decision made under s 501(3A).

79    By virtue of s 476A of the Act, the Federal Court does not have jurisdiction to review the validity of the delegate’s decision under s 501(3A) to cancel the appellant’s visa. Relevantly, the decision is not a privative clause decision or purported privative clause decision made by the Tribunal or the Minister personally. The parties did not dispute, however, that the delegate’s decision under s 501(3A) was amenable to judicial review in the High Court under para 75(v) of the Constitution. The parties did not address the question whether s 476 conferred jurisdiction on the Federal Circuit and Family Court of Australia (Division 2) in respect of those decisions. The answer to that question turns on whether the decisions are primary decisions as defined by s 476(4). By virtue of s 500(4A)(c), it would seem that the delegate’s decision under s 501(3A) is not a primary decision and would therefore have been reviewable by the Federal Circuit and Family Court of Australia (Division 2), but it is unnecessary to consider that issue further. The short point is that it has always been open to the appellant to bring an application to review the validity of the delegate’s decision under s 501(3A) to cancel the appellant’s visa on the basis that the delegate (or the Minister) failed to afford the appellant natural justice in connection with an asserted anterior decision to choose between cancellation powers in at least the High Court, but not in this Court.

80    Notwithstanding the foregoing, the appellant contends that it would have been open to him to raise proposed ground 2 before the primary judge in this Court by way of collateral challenge to the decision of the Tribunal under s 501CA(4) not to revoke the cancellation of the visa. It is not in doubt that this Court has jurisdiction to review the Tribunal’s decision under s 501CA(4). The appellant submitted that that jurisdiction extends to determining whether the decision made under s 501(3A) is a valid decision, as a precondition to the exercise of power by the Tribunal under s 501CA(4). The appellant submitted that that contention is supported by the majority of the Full Court (Rares and Yates JJ) in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 (XJLR) (at [59]–[65] and [87] per Rares J and [95]–[96] per Yates J). The Minister made a formal submission that XJLR is wrongly decided, but did not submit that the decision was plainly wrong and did not invite this Court to depart from its previous decision.

81    We accept that XJLR supports a conclusion that this Court has jurisdiction to review the validity of a delegate’s decision under s 501(3A) in the context of an application for judicial review of a decision under s 501CA(4). As the Minister did not invite the Court to reconsider that decision, we refrain from doing so. Nevertheless, the above discussion serves to highlight the facts that:

(a)    since the cancellation decision was made on 7 October 2019, it has been open to the appellant to bring an application to review the validity of the delegate’s decision under s 501(3A);

(b)    rather than apply to review the validity of the cancellation decision, the appellant made representations to have the cancellation revoked under s 501CA(4), and then applied to the Tribunal for review of the non-revocation decision;

(c)    the appellant then sought judicial review in this Court of the non-revocation decision; and

(d)    a challenge to the validity of the delegate’s decision under s 501(3A) was made for the first time on appeal from the decision of the primary judge.

82    The appellant offered no explanation for the failure to bring a challenge to the validity of the delegate’s decision under s 501(3A) at an earlier time or before the primary judge. The appellant has had legal representation at various points, including being represented by solicitors in both Tribunal hearings and by pro bono counsel before the primary judge. We infer that the issue now sought to be raised on this appeal was either considered and rejected by previous lawyers or was not considered. We accept that the relevant circumstances, including the fact that the appellant is in immigration detention, do not suggest that the appellant deliberately refrained from raising this ground earlier for some strategic advantage.

83    We do not accept the appellant’s submission that there would be no relevant prejudice to the Minister if leave was granted and that the ground concerns only a question of law based on the existing material. As submitted by the Minister, the appellant seeks to rely upon a number of factual assertions to raise the alleged denial of procedural fairness, including:

(a)    the Minister made a decision not to cancel the appellant’s visa pursuant to ss 501(2) or 116(1)(e) but to cancel the visa pursuant to s 501(3A);

(b)    it was open to the Minister to cancel the appellant’s visa for the 6 months prior to the cancellation decision; and

(c)    had the appellant’s visa not been cancelled under s 501(3A), and had ss 501(2) or 116(1)(e) been used instead, he would have been “at liberty” during part of the cancellation process.

84    The Minister submitted that, if proposed ground 2 had been raised before the primary judge, the Minister would have had the opportunity to adduce evidence as to the decisions made or not made, the Minister’s state of knowledge regarding the appellant’s offending and the circumstances leading to the cancellation of the visa. We accept that submission. It is fatal to the appellant’s application. It is contrary to the interests of justice to allow a party to raise a new point on appeal unless it could not possibly have been met by further evidence at trial: Moustakas at 497.

85    In the circumstances, it is unnecessary to consider the merits of the proposed ground in any detail. However, we record for completeness that we do not consider that the proposed ground has any reasonable prospect of success. The proposition that, before exercising the power to cancel the appellant’s visa under s 501(3A), the Minister was required to make an anterior decision whether to exercise power under a different provision such as s 501(2) and afford the appellant the opportunity to be heard about that decision, finds no support in the structure of the Act. It is also contrary to the decision of the Full Court in Burgess v Assistant State Minister for Home Affairs (2019) 271 FCR 181 (Burgess) at [2] per Kerr J and [67]–[74] per White and Charlesworth JJ, which decision was followed in Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 (Nuon) at [41]–[46] per Middleton J.

86    The Act empowers or requires the Minister to cancel a visa where the Minister is satisfied that conditions relevant to the exercise of those powers are made out or otherwise in existence. The particular conditions that the Minister must be satisfied of differ according to the particular power relied upon. In the present case, the appellant relies on three different powers, each of which has different characteristics and conditions.

87    The first is s 501(3A), which is the provision the Minister relied upon in cancelling the appellant’s visa. That section requires the Minister to cancel a visa where the requirements of that provision are satisfied. It provides as follows:

(3A)     The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     paragraph (6)(e) (sexually based offences involving a child); and

(b)     the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

88    The section is distinctive in that it imposes an obligation or duty – not a discretion – on the Minister if two conditions are met. The two conditions are, first, that the Minister is satisfied that the visa holder does not pass the character test in the prescribed ways and, second, that the Minister is satisfied that the visa holder is serving a sentence of imprisonment. The character test is defined in s 501(6) which stipulates that a person does not pass the character test if they fall within one of the eleven categories enumerated in the paragraphs of the subsection. The first condition to the power in s 501(3A) is based on only two of those categories. Section 501(5) stipulates that the rules of natural justice, and the code of procedure set out in Subdiv AB of Div 3 of Part 2, do not apply to a decision under subs (3A).

89    The second power relied on by the appellant is s 501(2), which empowers the Minister to cancel a visa if two different conditions are satisfied. It provides as follows:

(2)     The Minister may cancel a visa that has been granted to a person if:

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

(b)     the person does not satisfy the Minister that the person passes the character test.

90    This power differs from s 501(3A) in numerous ways. First, it is a discretionary power, not a mandatory obligation. Second, the conditions that enliven the discretion differ from s 501(3A). The first condition is that the Minister reasonably suspects that the visa holder does not pass the character test. Unlike s 501(3A), the power is enlivened by the Minister’s reasonable suspicion, not the Minister’s satisfaction. Further, the reasonable suspicion relates to the character test as defined in s 501(6), which comprises all of the categories enumerated in that definition. The second condition is that the visa holder does not satisfy the Minister that the person passes the character test. Third, the rules of natural justice apply to a decision of the Minister under s 501(2). The second condition requires that the visa holder be afforded an opportunity to satisfy the Minister that they pass the character test.

91    The third power relied on by the appellant is s 116(1)(e)(i), which empowers the Minister to cancel a visa if other conditions are satisfied. It provides as follows:

116     Power to cancel

(1)     Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(e)     the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i)     the health, safety or good order of the Australian community or a segment of the Australian community;

…

92    This power also differs from s 501(3A) in numerous ways. First, it is a discretionary power, not a mandatory obligation. Second, the condition that enlivens the discretion differs from s 501(3A) (and from s 501(2)). The condition is that the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. Third, cancellation under s 116 requires compliance with the procedures set out in Pt 2, Div 3, Subdiv E of the Act. In broad terms, those processes require the Minister, before cancelling a visa, to give notice of an intention to cancel and to invite the visa holder to address why the requirements of s 116 are not satisfied.

93    Section 118 of the Act provides that various powers to cancel a visa, including those referred to above, are not limited or otherwise affected by each other. Similarly, in Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98, the Full Court observed in respect of the different visa cancellation powers in s 501 (at [22]):

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

94    The appellant accepted that the Minister is not under a duty to consider whether to exercise any of the powers referred to above. The appellant also accepted that the rules of natural justice do not apply to the exercise of power under s 501(3A). The appellant’s contention is that, if and when the Minister embarks upon the process of considering whether to exercise any of the powers referred to above, the Minister must do so lawfully, which includes complying with the rules of natural justice. The foundation of that contention is said by the appellant to be the High Court’s decision in Plaintiff M61.

95    In our view, Plaintiff M61 does not support the appellant’s contention. The decision does not stand for some broad proposition that, whenever multiple statutory powers are available to be exercised, and the Minister embarks upon the process of considering whether to exercise one or more of the powers, the Minister must afford the visa holder natural justice in the process of making that choice. Rather, the decision concerned the legal status of assessments undertaken by the Department (referred to as a Refugee Status Assessment) and reviews of the assessments undertaken by contractors of the Department (referred to as an Independent Merits Review) which provided recommendations to the Minister whether to exercise power under ss 46A or 195A of the Act. The assessments were undertaken in respect of persons who (i) were “unauthorised maritime arrivals” within the meaning of s 46A and were thereby precluded from applying for a protection visa and (ii) detained under s 189 of the Act. The Commonwealth argued that the assessments had no statutory basis and, as a result, there was no obligation to afford procedural fairness in conducting the assessments. The High Court rejected that argument and concluded that the assessment processes were steps taken under and for the purposes of the Act and that those who undertook the processes were bound to act according to law and affording natural justice (at [9]). The High Court’s conclusion rested upon the specific requirements of ss 46A and 195A within the relevant legislative and historical contexts (at [10]). The High Court identified three considerations that were particularly relevant to that conclusion: first, the powers under ss 46A and 195A could only be exercised by the Minister personally; secondly, the assessment and review were made in consequence of a ministerial direction (which amounted to a decision by the Minister to consider whether to exercise either of those powers in respect of any offshore entry person who made a claim that Australia owes the claimant protection obligations); thirdly, the continued detention of an offshore entry person, while an assessment and review were conducted, was lawful only because the relevant assessment and review were directed to whether powers under either ss 46A or 195A could or should be exercised (at [62], [63], [66], [67] and [70]). The statutory powers and circumstances in the present case are not analogous to those considered in Plaintiff M61 and the High Court’s reasoning is not applicable.

96    We note for completeness that similar issues arose in SZSSJ. Applying Plaintiff M61, the High Court in SZSSJ concluded that a Departmental assessment process established by the Minister (following a data breach that disclosed the identities of a large number of applicants for protection visas who were then in immigration detention) to assist the Minister in deciding whether to exercise powers under ss 48B, 195A and 417 of the Act (to grant a visa or lift the statutory bar to the making of an application for a visa) was a process undertaken under and for the purposes of ss 48B, 195A and 417 of the Act (at [56]). As such, procedural fairness was required as an implied condition of the process (at [74]–[75]). Again, the statutory powers and circumstances in the present case are not analogous to those considered in SZSSJ and the High Court’s reasoning is not applicable.

97    The appellant’s contention also faces the problem that the power under s 501(3A) is not discretionary but mandatory if the conditions for its exercise are met. As submitted by the Minister, the mandatory nature of the power in s 501(3A) demonstrates the impossibility of the anterior “choice” asserted by the appellant. The Minister could only have a choice of statutory powers to exercise if the statutory conditions for the exercise of the powers are met. However, if the Minister is satisfied that the conditions in s 501(3A) are met, no “choice” between powers can arise: the Minister is compelled to exercise the power under s 501(3A) because it is mandatory. Furthermore, in the present case, the appellant wrote to the Department from prison and informed the Department that the conditions were met. If the Minister was satisfied about those matters, the Minister was obliged by s 501(3A) to cancel the appellant’s visa. The appellant sought to place reliance on the fact that the Minister did not exercise the power under s 501(3A) for some five months, suggesting that this showed that the Minister had embarked upon a process of enquiry. We would not draw that inference. There could be many explanations for the delay in acting. The circumstances of the present case contradicts any suggestion that the Minister had discretionary choices.

98    Finally, a similar contention in respect of the power in s 501(3) was advanced and rejected in Burgess (at [71] and [72] per White and Charlesworth JJ, with whom Kerr J agreed). In that case, the Assistant Minister cancelled the appellant’s visa under s 501(3) which empowers the Minister to cancel a visa if the Minister reasonably suspects that the visa holder did not pass the character test and the Minister is satisfied that cancellation is in the national interest. Like s 501(3A), the rules of natural justice do not apply to a decision under s 501(3): see s 501(5). The appellant argued that the Assistant Minister had made a procedural or antecedent decision to proceed under s 501(3) of the Act rather than s 501(2) of the Act and that the antecedent decision to so proceed was affected by legal unreasonableness (see at [53]). The plurality rejected that argument for the following reasons (at [71] and [72]):

71    The question of whether the Assistant Minister exercised his powers according to law and within the limits set by the subject matter, scope and purposes of the Act is informed by the following features of the statutory scheme:

(1)     The power under s 501(3) of the Act is conditioned on the Minister being satisfied that cancellation of the visa is in the national interest whereas the power under s 501(2) is not. The question of what the national interest requires is non-delegable. The Act evinces a clear intention that the visa holder have no entitlement to be heard with respect to that question. These considerations are enlarged upon in the disposition of Ground 4 (as to which see [117]-[119] below);

(2)     The discretionary power to cancel a visa under s 501(3) is enlivened upon the conditions in s 501(3)(c) and (d) being fulfilled. The Minister’s state of mind with respect to each condition may lawfully be formed without affording the visa holder an opportunity to be heard and without pausing to consider whether the criteria for the exercise of an alternative source of power may or may not be fulfilled;

(3)     Section 501 contains no express requirement that the Minister first give consideration to the exercise of the power conferred by s 501(2) before giving consideration to the exercise of the power in s 501(3), nor does any such requirement arise by implication;

(4)     Parliament has conferred alternate powers without expressly identifying any criteria against which any choice between them should be made;

(5)     The Act neither expressly nor impliedly requires the Minister to make any value judgment about which course of decision-making would be preferable from the visa holder’s perspective;

(6)     As Mr Burgess correctly contended, nothing in s 501(3) of the Act obliges the Minister not to accord procedural fairness in a particular case in any event (see Ground 1 below). The “election” between alternate powers is an election between a course in which natural justice must be afforded (s 501(2)) and a course in which natural justice may be afforded (s 501(3)). As such, any “anterior decision” to proceed under s 501(3) would not necessarily encompass a decision not to accord natural justice; and

(7)     There would be an incongruity in the statutory scheme if the Minister was obliged to accord natural justice to a visa holder before making a decision under s 501 to exercise a power which does not require the provision of natural justice.

72    It follows from all of these considerations that the decision by the Assistant Minister to consider the exercise of the power under s 501(3) was not conditioned by a requirement that he express an intelligible basis for doing so. More particularly, the power conferred by s 501(3) is not subject to an inviolable condition that the Minister first identify an intelligible basis for not exercising the alternative power in s 501(2).

(Original emphasis.)

99    In our view, the above reasons expressed in Burgess apply with even greater force with respect to an exercise of power under s 501(3A), which imposes an obligation on the Minister to cancel a visa if the statutory conditions are met. The appellant failed to identify why the reasoning in Burgess was wrong, let alone plainly wrong such that it would not be followed by this Court. As noted earlier, the reasoning in Burgess has subsequently been followed by Middleton J in Nuon (at [41]–[46]).

100    For all of the above reasons, it is neither expedient nor in the interests of justice to allow the appellant to raise proposed ground 2 on this appeal and we accordingly refuse to grant leave.

Conclusion

101    For the reasons given above, appeal ground 1 is rejected and leave to raise proposed ground 2 is refused. It follows that the appeal is dismissed.

102    As to costs, we consider that the usual order should apply and that the appellant should pay the Minister’s costs of the appeal. As foreshadowed earlier in these reasons, there is a question about the costs of the Minister’s interlocutory application, which was unsuccessful. At the conclusion of the hearing of the interlocutory application, counsel for the appellant indicated that the appellant may wish to be heard on that question following the determination of the appeal. Although the Minister was unsuccessful on the application, we consider that the application was properly brought. The appellant was seeking the leave of the Court to raise a new ground of appeal shortly before the hearing of the appeal and in circumstances where another Full Court had heard argument on the same issue and had reserved judgment. It was appropriate for those matters to be raised before this Court prior to the hearing of the appeal to determine the most appropriate course to be followed. Given those circumstances, we are presently of the view that the costs of the interlocutory application should be costs in the cause. However, as the appellant indicated that he may wish to be heard on those costs, we will give the appellant liberty to apply to vary the costs order by filing a brief submission within 14 days of the date of this judgment. If a submission is filed, the Minister will be given leave to reply in a further 7 days.

Associate:

Dated:    28 March 2023