Federal Court of Australia
CCU21 v Minister for Home Affairs [2023] FCAFC 87
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Appeal allowed.
2. Set aside the orders made by the Federal Court of Australia on 31 January 2022 insofar as they concern the Respondent and in lieu thereof order that:
1. There issue to the First Respondent a writ of certiorari absolute in the first instance quashing the decision of the First Respondent made on 9 September 2021.
2. There issue to the First Respondent a writ of mandamus absolute in the first instance directing the First Respondent to determine the Appellant’s revocation application according to law within 28 days.
3. The First Respondent pay the Applicant’s costs as taxed or agreed.
3. The Respondent pay the Appellant’s costs of the appeal as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 Three questions arise in this appeal. First, is a decision of one of the Ministers administering the Migration Act 1958 (Cth) (‘the Act’) to cancel the Appellant’s visa liable to be set aside because the Minister failed to consider the reputational consequences to Australia of breaching its non-refoulement obligations under international law? Secondly, if that question is answered in the negative, was the cancellation decision liable to be set aside on the alternative basis that the Minister had failed to consider the risk posed to the Australian community when deciding whether to cancel the visa? Thirdly, if that question is answered in the negative, was the subsequent decision by a different Minister to refuse to revoke the cancellation decision made in breach of the rules of procedural fairness or in a way which was unreasonable or irrational?
First Question: Was the visa cancellation decision liable to be set aside?
2 The decision to revoke the Appellant’s visa was made on 30 September 2019 under s 501(3) of the Act. The power to cancel a visa conferred by that provision arises once two pre-conditions are satisfied. The first pre-condition is that the Minister must reasonably suspect that the visa holder does not pass the character test: s 501(3)(c). In this case, there is no dispute that at the date of the cancellation decision the Minister held such a reasonable suspicion and no issue therefore arises in the appeal as to this aspect of the matter. The second pre-condition is that the Minister must be ‘satisfied that the refusal or cancellation is in the national interest’: s 501(3)(d).
3 The first Minister produced reasons for his decision to cancel the Appellant’s visa. Those reasons assessed whether the national interest required the cancellation of the visa but did not consider, as part of that examination, the reputational consequences for Australia were it to breach its non-refoulement obligations under international law.
4 The nature and source of those obligations have often enough been explained and it is not necessary for present purposes to set them out in detail. The three treaties involved were identified by Allsop CJ in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 at [12] (‘CWY20’). They are the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) and the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Refugee Convention’) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). The nature of the obligation imposed by these three treaties was explained by the High Court in CRI026 v Republic of Nauru [2018] HCA 19; 92 ALJR 529 at [24]. States Parties are obliged not to remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm of the kind contemplated by Arts 6 and 7 of the ICCPR in the country to which such removal is to be effected. Article 6 prohibits arbitrary deprivation of life whilst Art 7 proscribes torture and cruel, inhuman or degrading treatment or punishment. This legal infrastructure lies outside the question of whether a person is a refugee under the Refugee Convention, i.e., it is possible for a person not to fall within the Refugee Convention and for a State still to have an obligation not to send that person to a country where its non-refoulement obligations would be enlivened.
5 A breach of Australia’s non-refoulement obligations affects the person who is being refouled. In this case, the Minister weighed the Appellant’s interests in not being refouled against the national interest. However, as we have said, he did not assess the reputational consequences for Australia of breaching its treaty obligations under international law. In the interests of brevity it is convenient to refer to this issue by way of shorthand as the ‘International Reputation Issue’. As will be appreciated, an assessment of the International Reputation Issue is not the same as an assessment of the consequences to an affected person of Australia breaching its non-refoulement obligations. Both inquiries have the same subject matter at their root, a breach of the non-refoulement obligations, but they differ in their focus inasmuch as the former is concerned with the reputational position of Australia whilst the latter is concerned with the welfare of the affected person.
6 The Minister concluded that the cancellation of the Appellant’s visa was in the national interest and he therefore proceeded on the basis that the two pre-conditions to the exercise of the cancellation power were present. At this point, he then turned to consider whether as a matter of discretion he ought to exercise the cancellation power. In the course of doing so, the Minister did consider the consequences to the Appellant of being refouled to his country of origin. However, as we have said, he did not consider, as part of that assessment, the International Reputation Issue.
7 The Appellant submits that the Minister could not rationally conclude that the cancellation of his visa was in the national interest without turning his mind to the International Reputation Issue. The Appellant relies upon this Court’s decisions in CWY20 and ENT19 v Minister for Home Affairs [2021] FCAFC 217; 289 FCR 100 (‘ENT19’) to establish this contention.
8 The Minister advances two arguments as to why CWY20 and ENT19 should not be applied in this case. The first is that the provisions involved in those cases make them distinguishable or that there are arguments not considered in those cases which require the opposite conclusion. The second is that, even if the differences between the provisions do not make them legally distinguishable, they are distinguishable on the facts.
(a) Whether CWY20 and ENT19 are legally distinguishable
9 CWY20 was concerned with a different provision of the Act, s 501A(2). Section 501A(2) confers a power on the Minister to override an earlier decision by a delegate or, on review, by the Administrative Appeals Tribunal (‘the Tribunal’) not to exercise, inter alia, the power in s 501(2); that is to say, the power to cancel a visa where the Minister reasonably suspects that the visa holder does not pass the character test, and where, after giving the person a chance to make representations, the person fails to satisfy the Minister that the person passes the character test. The power in s 501A(2) to override a previous decision not to cancel a visa can, however, only be exercised where the Minister is satisfied, inter alia, that the cancellation is in the national interest: s 501A(2)(e).
10 In CWY20 the Acting Minister had purported to exercise this power to override an earlier decision of the Tribunal declining to cancel a visa. In reaching his state of satisfaction that the cancellation was in the national interest, the Acting Minister did not consider the International Reputation Issue. The Full Court concluded that in attaining the necessary state of satisfaction that the cancellation was in the national interest, the Acting Minister was required to act reasonably: [140] per Besanko J (Allsop CJ, Kerr and Charlesworth JJ agreeing at [1], [179] and [181]). The Court concluded that the Acting Minister did not act reasonably in reaching the conclusion that the cancellation was in the national interest in circumstances where he had not considered the International Reputation Issue: [172]-[173] per Besanko J. The appeal against the primary judgment, which set aside the Acting Minister’s override decision for jurisdictional error, was therefore dismissed.
11 The reasoning in CWY20 was applied by the Full Court in ENT19 although to a different provision. That case was concerned with a refusal to grant a protection visa on national interest grounds. The delegate was required to be satisfied, inter alia, that the grant of the visa was ‘in the national interest’: Migration Regulations 1994 (Cth), sch 2 cl 790.227 (‘the Regulations’). It provides:
790.227
The Minister is satisfied that the grant of the visa is in the national interest.
12 The delegate did not consider, if the visa were not granted, the International Reputation Issue. Applying CWY20, the Court in ENT19 concluded (at [107]-[108] per Katzmann J, Collier and Wheelahan J agreeing at [1] and [138]) that in the circumstances of that case, ‘no reasonable decision-maker could lawfully calculate whether it was in the national interest to grant the applicant a visa without considering’, inter alia, the ‘implications for Australia of returning the appellant to his country of nationality in breach of Australia’s non-refoulement obligations’. The Minister’s decision was set aside.
13 In this case, the Appellant says that the same expression ‘in the national interest’ is used in s 501(3)(d) of the Act as is used in s 501A(2)(e) and cl 790.227. He therefore submits that the reasoning in CWY20 and ENT19 should be applied to s 501(3)(d).
The Minister’s first submission: Structural dissimilarities between s 501(3) and the provisions in issue in CWY20 and ENT19
14 The Minister’s first submission as to why CWY20 and ENT19 should not be applied to s 501(3) is that there are material differences between it and s 501A(2)(e) and cl 790.227. So far as is relevant to this appeal, s 501 provides:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
…
(4) The power under subsection (3) may only be exercised by the Minister personally.
(4A) If the Minister makes a decision under subsection (3) in relation to a person, the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day the decision was made.
(4B) Subsection (4A) does not apply if:
(a) the decision was made on the basis that the Minister reasonably suspects the person does not pass the character test because of the operation of paragraph (6)(a), (e) or (g); or
(b) the person was the subject of an adverse security assessment, or a qualified security assessment, under the ASIO Act when the decision was made.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(g) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
…
15 As we have noted, it is not in dispute that when the cancellation decision was made the Minister did reasonably suspect that the Appellant did not pass the character test. This was because, at that time, the Appellant had been assessed by the Australian Security Intelligence Organisation (‘ASIO’) to be a direct or indirect risk to security thereby bringing into play s 501(6)(g). For the purposes of this discussion, however, this is of no particular relevance although it is relevant to the other two questions in this appeal.
16 So far as it is relevant, s 501A provides:
501A Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision (the original decision):
(c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;
whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.
Action by Minister—natural justice applies
(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national interest.
Action by Minister—natural justice does not apply
(3) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(4) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
…
Minister’s exercise of power
(5) The power under subsection (2) or (3) may only be exercised by the Minister personally.
17 Clause 790.227 of the Regulations is set out above.
18 The difference the Minister advances to distinguish CWY20 from the present case is that the scheme provided by ss 501(2) and (3) and the scheme provided by ss 501A(2) and (3) are different inasmuch as an assessment of the national interest is an essential pre-condition to the powers in s 501A whereas it is not in the case of s 501. One feature of both provisions is that each equips the Minister with the option of proceeding without procedural fairness (under sub-s (3) of either provision) or subject to procedural fairness (under sub-s (2) of either provision). In the case of both provisions, where the Minister decides to proceed without procedural fairness (as was the case here), the Minister’s state of satisfaction that the cancellation is in the national interest is an essential pre-condition to the exercise of the power.
19 However, the Minister is correct to submit that where he decides to proceed subject to the rules of procedural fairness (under sub-s (2)) he does not have to be satisfied that the cancellation is in the national interest before exercising the power in s 501(2). By contrast, he must be so satisfied before exercising the corresponding override power in s 501A(2).
20 In our view, the Minister’s submission seeks to treat cancellation under s 501(2) (cancellation with procedural fairness) and s 501(3) (cancellation without procedural fairness) as if they were cut from the same cloth. Drawing on the no doubt correct observation that s 501(2) does not have as an essential element any assessment of the national interest, the submission then attributes that self-same quality to s 501(3). This feat it performs by the device of describing ss 501(2) and (3) as being part of a structure and then ascribing to that structure the quality of being different to the scheme disclosed by ss 501A(2) and (3). The end point of the argument is that the national interest is central to ss 501A(2) and (3) but not central to ss 501(2) and (3). The difference between the two provisions in relation to the centrality of the national interest is then said to provide the basis for distinguishing CWY20.
21 In effect, there are four provisions involved in the Minister’s submission: ss 501(2), 501(3), 501A(2) and 501A(3). These provisions, their requirements about procedural fairness and their relationship with the national interest may be illustrated in this way:
Section 501(2) Visa cancellation Procedural fairness applies No assessment of the national interest | Section 501A(2) Override decision Procedural fairness applies National interest assessed |
Section 501(3) Visa cancellation/refusal Procedural fairness does not apply National interest assessed | Section 501A(3) Override decision Procedural fairness does not apply National interest assessed |
22 The Minister’s submission groups ss 501(2) and (3) together and contrasts them with a second grouping consisting of ss 501A(2) and (3). The difficulty with the Minister’s submission lies in its selection of the relevant groups. In our view, a more rational grouping would be to put all those provisions which have an assessment of the national interest as a jurisdictional prerequisite (ss 501(3), 501A(2) and 501A(3)) together as one group whilst dealing with those which do not (s 501(2)) as a second group. If that is done, there is no readily apparent reason why the question of the national interest should be approached differently as between the three provisions which mention it, viz, ss 501(3), 501A(2) and 501A(3).
23 The Minister’s answer to this is that ss 501 and 501A were to be seen as separate powers each of which equipped the Minister with a choice as to whether to afford procedural fairness or not. Whilst this is no doubt correct, it does not provide a sufficient reason to accept the Minister’s submission that s 501(2) and s 501(3) reflect a structure in which an assessment of the national interest is not a jurisdictional prerequisite. The incontrovertible fact is that s 501(3) does have as a jurisdictional prerequisite an assessment of the national interest. No degree of characterising s 501(3) as part of the same structure as s 501(2) can erase this.
24 The Minister sought to avoid this conclusion by submitting that CWY20 did not address itself to the two routes in relation to procedural fairness which were available to the Minister under ss 501 and 501A. We agree that the Court in CWY20 did not address this issue. However, we are unpersuaded that the decisional freedom in relation to procedural fairness which exists under both provisions has any impact on the manner in which the Minister is to approach the assessment of the national interest. Where the Minister decides under either provision not to afford the affected person procedural fairness, this does not have the consequence that the person does not get to make submissions about the exercise of the power; rather, it postpones the time at which this occurs until after the decision has taken effect. The means by which this is achieved is through the conferral of a right to seek revocation of an earlier decision where the Minister has elected not to afford the person procedural fairness beforehand. The provision which does this for both ss 501(3) and 501A(3) is s 501C upon which the Minister placed some reliance. Relevantly it provides:
501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the person satisfies the Minister that the person passes the character test (as defined by section 501).
(5) The power under subsection (4) may only be exercised by the Minister personally.
(6) If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).
25 The interaction between this provision and ss 501(3) and 501A(3) requires attention. Three points should be made. First, cancellation under either s 501(3) or s 501A(3) has two cumulative requirements. The Minister must reasonably suspect that the person does not pass the character test. The Minister must then also be satisfied that the cancellation is in the national interest. This is the import of the word ‘and’ at the end of each of s 501(3)(c) and s 501A(3)(c). One arrives therefore at the Minister’s consideration of any ensuing application for revocation with both of those matters having been satisfied. The wording of s 501C(4) then shows that it is enlivened where a person makes representations and those representations have resulted in the Minister being satisfied that the person does pass the character test. No part of the Minister’s satisfaction at this stage turns on his assessment of the national interest.
26 The second point is that s 501C(4) does not confer a discretion once its preconditions are met. The word ‘may’ means ‘must’. The Minister accepted this to be so and this reflected his similar acceptance before Perry J in Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [91]-[92]. The third point is an implication to be drawn from the first two points: an assessment of the national interest forms no part of the revocation power in s 501C(4). It is not required for the satisfaction of the preconditions to the exercise of the power in this provision and there is no discretion under this provision by which it might be further considered.
27 Once that is appreciated it becomes clear that the Minister’s assessment of the national interest in ss 501(3) and 501A(3) is not subject to any procedural fairness obligations and, in that regard, s 501(3) is the same as s 501A(3). The affected person has no right to make representations about anything, including the national interest, under both provisions and when a revocation application is made, the Minister’s remit does not include re-examining the question of the national interest: s 501C(4).
28 On the other hand, the Minister is correct to observe that the exercise of the power in s 501A always involves an assessment of the national interest whether the principles of natural justice are applied (s 501A(2)) or not (s 501A(3)). This is different in the case of s 501. Where the Minister decides under that provision to proceed in accordance with the rules of procedural fairness, it appears that the national interest is not a matter he is bound to consider: s 501(2).
29 What emerges from this is that the power in s 501(3) shares all of the same characteristics as the power in s 501A(3) but that these schemes differ at the level of s 501(2) and 501A(2). We would accept that this entails that there are good reasons not to apply reasoning about s 501A(2) to s 501(2). However, we do not see that it provides any basis for not applying reasoning applicable to s 501A(3) to s 501(3).
The Minister’s second submission: it was not unreasonable for the Minister to choose where in the decision making process under s 501(3) he considers the International Reputation Issue
30 The Minister submits that any assessment of Australia’s non-refoulement obligations could take place under an assessment of the national interest under s 501(3)(d) or as part of the exercise of the discretion conferred by s 501(3) once that provision was enlivened. Mr Herzfeld SC for the Minister framed the question as one of a rational choice between two options. Viewed through this lens, there could be nothing unreasonable about a decision to proceed down one path rather than the other. If that were so, it would follow that a failure under s 501(3)(d) to consider the International Reputation Issue need not be irrational for the Minister could still consider the matter as part of the exercise of the discretion.
31 In our view, the Minister’s submission impermissibly conflates a failure to consider the International Reputation Issue under s 501(3)(d) with a decision under that provision to postpone consideration of it to the exercise of the discretion. At the evidentiary level, these are not the same. For the Minister’s submission to succeed it would be necessary for his reasons to disclose that he had not considered the issue under s 501(3)(d) but had decided to consider it as part of his discretion once the provision was enlivened.
32 However, as a matter of fact the Minister’s reasons demonstrate that he did not conclude that he had a choice as to which path he considered the International Reputation Issue under and, indeed, they do not disclose any consideration of the matter at all. It is true that the Minister did consider, at [9] of his reasons, that he could proceed with procedural fairness under s 501(2) or without it under s 501(3). Paragraph [10] then shows that he decided to proceed under s 501(3). But this choice was not expressed as being related to how the International Reputation Issue was going to be considered and, as we have explained, under neither path would the national interest be subject to any entitlement in the Appellant to make submissions about the national interest. As such this choice by the Minister cannot entail a decision on his part to postpone consideration of part of the national interest from the jurisdictional prerequisite in s 501(3)(d) to the exercise of the discretion under s 501(3). The conclusion in CWY20 is therefore unavoidable.
33 Because it does not arise in this appeal, we would therefore defer consideration of the correctness of the Minister’s submission to a case where the facts demonstrate that the Minister had chosen to consider the issue under the discretion rather than under s 501(3)(d). A mere omission to consider the matter under s 501(3)(d) cannot, without more, be positive evidence of the choice for which he now argues. We would also postpone to a similar occasion the question of whether the Minister can ignore the stipulation of s 501(3)(d) that the question of the national interest is to be considered as a jurisdictional prerequisite prior to the exercise of the power and, with it, the Appellant’s allied contention that to do so would be circular.
34 For completeness, we should note the Minister’s reliance upon s 501(4A) to buttress the submission that s 501(3) afforded the Minister a choice as to the stage at which the International Reputation Issue would be considered. Section 501(4A) is set out above. Where a cancellation decision is made under s 501(3) then s 501(4A) requires the Minister to table a notice of the making of that decision before both Houses of the Parliament within 15 sitting days. The Minister submits that this obligation supported the existence of this choice. It is not necessary to assess this submission. Section 501(4B) provides that the obligation does not arise where, as here, the person fails the character test because of the operation of s 501(6)(g).
35 For those reasons, we do not accept that s 501(3) is relevantly different to s 501A(3) or that CWY20 and ENT19 are legally distinguishable and ought not to be applied to the Minister’s decision on that basis.
(b) Whether CWY20 and ENT19 are distinguishable on the facts
The Minister’s first submission: the Appellant was not liable to be removed from Australia once the cancellation decision was made because of the existence of the revocation procedure
36 Here the Minister’s point was that the cancellation decision merely opened the door to an application for revocation under s 501C(4). Until that decision was made, it could not be said with a sufficient degree of certainty that the Appellant would be removed from Australia. The significance of this is that, were that so, it would be premature to consider the International Reputation Issue since the cancellation decision did not necessarily entail that Australia’s treaty obligations were about to be dishonoured.
37 This issue did not arise in CWY20 because the cancellation in that case occurred under s 501A(2) (the procedural fairness path) which meant that the respondent was not able to avail himself of the post-decision revocation procedure under s 501C(4). The cancellation in CWY20 was therefore the last step in the substantive decision making process and afterwards removal from Australia under s 198 of the Act was inevitable.
38 Similarly, in ENT19 no further revocation procedure existed after the visa application was refused so that the next step was removal under s 198. In both cases, whilst removal under s 198 involved further administrative decisions, s 197C is clear that for the purposes of s 198 ‘it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’. Thus, in a real sense, in both cases the decisions under review represented the last point at which the International Reputation Issue could be considered.
39 Unlike CWY20 and ENT19 we would therefore accept that the effect of the cancellation decision was not to require the immediate removal of the Appellant from Australia under s 198. Before the Appellant was removed pursuant to s 198, it was first necessary for the revocation procedure under s 501C(4) (if enlivened) to run its course. In this case, the only way that any application by the Appellant for revocation under s 501C(4) could succeed was if he were to satisfy the Minister that he passed the character test.
40 As the matter stood at the time that the Minister decided to cancel the visa the Appellant was subject to an adverse security assessment from ASIO and, as we have explained above, whilst that remained in place it was not possible for the Appellant to pass the character test because of the terms of s 501(6)(g).
41 It is true, as we will later explain, that the original ASIO adverse security assessment was subsequently replaced with a qualified security assessment in which ASIO reversed itself and concluded that the Appellant was not a risk to Australia’s security. But at the time that the Minister made the cancellation decision this future development was unknowable. At that time, what was clear was that any revocation application could not succeed because of the initial adverse security assessment. As matters stood at the time of the cancellation decision, the inevitable course of decision making was that the Appellant would become liable for removal under s 198 after lodging a revocation application under s 501C(4) which was bound to fail. Thus, once the Minister’s cancellation decision was made, the die was cast and the Appellant’s removal from Australia was a certainty under the statutory machinery. This was recognised by the Minister in making the cancellation decision for he observed at [8] of his reasons: ‘As [the Appellant] objectively fails the character test, it would be futile for him to seek revocation under s 501C(4) as he cannot satisfy me that he passes the character test.’
42 We do not therefore see this situation as being distinguishable from CWY20 and ENT19. However, one should be careful not to over-generalise that conclusion. There are other ways to fail the character test which may be more malleable on a revocation application under s 501C(4). For example, a person may fail the character test under s 501(6)(c) because they are not of good character. In cases of that kind, the Minister’s submission may have more traction for it may be possible to persuade the Minister under s 501C(4) that his conclusion about that matter in the cancellation decision under s 501(3) was wrong and that, in fact, the person is of good character. In such a case, the inevitability of removal may be less apparent.
43 The learned trial judge thought that ENT19 could be distinguished on, inter alia, this basis: CCU21 v Minister for Home Affairs [2022] FCA 28; 398 ALR 535 at [49] (‘PJ’). However, his Honour did not have drawn to his attention the fact that any revocation application under s 501C(4) must have been understood by the Minister at the time he made the cancellation decision as being bound to fail. For the reasons we have given, we do not think that ENT19 and CWY20 can be distinguished on this basis (at least in a case in which the character test is failed because of an adverse security assessment under s 501(6)(g)).
The Minister’s second submission: absence of any material suggesting that the Appellant faced a risk of the kind which would enliven Australia’s non-refoulement obligations
44 The Minister relies on the observation of Besanko J in CWY20 at [150] that the particular circumstances present in that case ‘will not be present in every case in which the Minister is considering the exercise of the power in s 501A(2)’. We accept that the same is true of s 501(3). The circumstances to which Besanko J was referring in CWY20 were summarised by him at [149]. Relevantly, they included a finding by the Acting Minister making the decision that Australia owed the respondent non-refoulement obligations and that there was an accepted risk that he would be killed if he was returned to his country of origin.
45 In this case the Minister proceeded on the basis that Australia owed the Appellant non-refoulement obligations (‘I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of the risk [the Appellant] poses to Australia’s national security’: at [33] of the Minister’s reasons for cancellation). Unlike CWY20 he did not expressly advert to any particular risk which the Appellant would face if he was returned to his country of origin.
46 The Appellant held a species of protection visa from which it may be inferred that a delegate of the Minister had, at some stage, accepted that: (a) he faced a well-founded fear of persecution if returned to his country of origin (i.e. refugee status under s 36(2)(a) of the Act); or (b) there were substantial grounds for believing that as a necessary and foreseeable consequence of his removal from Australia there was a real risk that he would suffer significant harm (s 36(2)(aa) of the Act).
47 Nevertheless, one cannot infer from the fact that the Appellant held a protection visa that the Appellant faced a real risk of the harms to which Arts 6 and 7 of the ICCPR are directed so that his repatriation would put Australia in breach of its non-refoulement obligations. At best it is a guess as to whether the protection visa was granted for refugee status reasons or non-refoulement reasons (or a combination or overlap of both). Thus the mere fact that the Appellant held a protection visa is not something which, on the face of it, would make it irrational or unreasonable to assess the national interest without adverting to the International Reputation Issue.
48 We are unable to discern anything else in the Minister’s reasons which would allow one to reason to the same effect. As we have observed, in CWY20 there was evidence of that kind. There was also evidence of that kind in ENT19. There the Immigration Assessment Authority had already found that if the appellant were repatriated to Iran he was liable to be charged with apostasy which was punishable by death: ENT19 at [11]-[12].
49 In this case, there is no evidence of any such material being before the Minister when he made the cancellation decision and no such evidence is disclosed in his reasons. We agree with the Appellant that a risk of death need not be established. However, having regard to the content of the non-refoulement obligations it is likely that there needs to be material from which a breach of those obligations may be deduced, i.e., a real risk of the harms referred to in Arts 6 and 7 of the ICCPR.
50 In that circumstance, whilst we accept the Appellant’s submission that the reasoning in CWY20 and ENT19 does apply to s 501(3), we do not accept, on the facts, that it was irrational or unreasonable for the Minister not to advert to the International Reputation Issue in assessing the national interest. This aspect of the appeal should therefore be dismissed. It is not, in that event, necessary to consider the question of materiality.
Second question: the Minister’s assessment of the risk posed by the Appellant of harm to the Australian community
51 In light of the answer to the first question, the cancellation power was enlivened. The next question is concerned with how the Minister then exercised the discretion conferred by that power. The Appellant makes two points. He says that the Minister failed to consider the risk of harm posed by the Appellant to the Australian community (hereafter, ‘risk’). If the Court is against him on that he submits that it was irrational or unreasonable for the Minister to conclude that he posed such a risk. The Minister’s position is that he did consider the risk and that it was open on the material before him to do so rationally. The Minister does not submit, in the alternative, that even if he did not consider this risk, he was not obliged to do so under s 501(3). Consequently, the debate between the parties does not require this Court to enter upon the question of what the mandatorily relevant considerations for the exercise of the power in s 501(3) might be.
The Appellant’s first submission: the Minister did not consider the risk
52 In our view, the Appellant’s first submission that the Minister did not consider the risk is untenable. At [43] of his reasons for cancellation, the Minister concluded that the Appellant posed a risk to the Australian community ‘in light of ASIO’s assessment that he is directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act’.
53 The Appellant’s answer to this problem was to submit that the Minister did not make a finding about the seriousness of the risk and had deferred any consideration of the risk personally posed by the Appellant to the bare terms of ASIO’s assessment. Assuming in the Appellant’s favour that the Minister was obliged to consider not only the risk but also its seriousness, we would nevertheless reject the submission. It is evident from the Minister’s reasons that he regarded the risk under consideration as being serious. At [13] of his reasons, the Minister referred to the fact that ASIO had furnished him with the adverse security assessment which had assessed the Appellant ‘to be directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act’. The Minister explained at [17] that he was aware that ‘ASIO exists to protect the Australian community from serious threats to Australia’s security’.
54 His awareness of the seriousness of the risk went beyond his understanding of ASIO’s role in the national security framework. He identified at [20] that the adverse security assessment had been issued under a particular ‘head of security’. This was a reference to the definition of ‘security’ in s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’) which contains a number of aspects (or heads) of security. One of these is the protection of Australia’s territorial and border integrity from serious threats. The Minister noted at [20] that the adverse security assessment stated that it was issued under that head of security. The same paragraph recommended that the Minister give consideration to the cancellation of the Appellant’s visa.
55 All of this tends to demonstrate that the Minister considered there to be a risk posed by the Appellant and that the risk was a serious one. This view is confirmed by his approach to non-refoulement obligations. At [33] of his reasons he stated that he had had regard to these obligations and that he had ‘carefully weighed this factor against the seriousness of the risk [the Appellant] poses to Australia’s national security’. We find it impossible to accept therefore that the Minister did not consider the question of the risk posed by the Appellant. He did and he regarded the risk as serious.
The Appellant’s second submission: whether it was rational for the Minister to conclude that the Appellant posed the risk
56 It is common ground that at the time the Minister made the cancellation decision all that he had before him was an adverse security assessment issued by the Director-General of Security dated 17 September 2019. It was in these terms:
AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT 1979
ADVERSE SECURITY ASSESSMENT
1. Security assessment subject
[The Appellant’s personal details]
2. Name of Commonwealth agency
Department of Home Affairs.
3. Purpose of security assessment
To provide security advice to the Minister for Home Affairs or his delegate on whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken under the Migration Act 1958 (Cth) in respect of [the Appellant].
4. Head of security
The protection of Australia’s territorial and border integrity from serious threats.
5. Assessment
ASIO assesses [the Appellant] to be directly or indirectly a risk to security (within the meaning of section 4 of the ASIO Act) and that the requirements of security make it necessary or desirable for [the Appellant’s] Safe Haven Enterprise (Subclass 790) visa to be cancelled.
6. Recommendation
ASIO recommends [the Appellant’s] visa be cancelled.
ASIO recommends that a further security assessment be requested from ASIO should [the Appellant] lodge a further visa application.
[Signature]
Mike Burgess Director-General of Security 17 September 2019
57 We have omitted the Appellant’s name and personal details in accordance with s 91X of the Act. The Appellant’s first basis for saying that the Minister’s conclusions about risk were irrational or unreasonable was to observe that the Minister knew nothing about the circumstances which generated the adverse security assessment. No doubt this is true. However, the question which arises is whether there was an evident and intelligible basis for the Minister’s conclusion that the Appellant posed a serious risk to the Australian community if his visa were not cancelled.
58 In our view, there was an evident and intelligible basis for the Minister’s conclusion. He had before him an assessment from ASIO which, under the head of security going to the protection of Australia’s territorial and border integrity from serious threats, assessed the Appellant to be a direct or indirect threat to security and recommended that his visa be cancelled. The significance of the adverse security assessment was recognised by Parliament for the mere fact that the Minister held such an assessment was sufficient in itself for the Appellant to fail the character test without any further consideration by the Minister: s 501(6)(g). The Minister was entitled to assume that the assessment had been lawfully issued. As this Court held in Jaffarie v Director General of Security [2014] FCAFC 102; 226 FCR 505 at [71] (‘Jaffarie’) this entailed that ASIO had formed the view that the Appellant posed a serious threat to Australia’s border and territorial integrity. We see nothing irrational or unreasonable in the Minister inferring that that which was a serious risk to border and territorial security was also a serious risk to the community. The community, after all, dwells within the territory delimited by its borders. In saying that we would accept, as the Appellant submitted, that it is possible as a matter of logic that the Minister might conclude that a person found by ASIO to pose a serious risk to security nevertheless did not pose a risk to the Australian community. However, the existence of this possibility does not render irrational a conclusion that a person poses a threat to the Australian community because ASIO has found them to constitute a serious threat to security.
59 The Appellant sought to distinguish Jaffarie and therefore to break this chain of reasoning. The argument was that Jaffarie was concerned with whether or not civilian people smuggling could constitute a serious threat to Australia’s border or territorial integrity. By contrast, so it was submitted, this case was concerned with the risk to national security. This is not correct. The relevant portion of the definition of ‘security’ in s 4 of the ASIO Act was the same in Jaffarie as it is in this case.
60 The Appellant also submitted that the Minister had acted under the dictation of ASIO. We do not accept this submission. The reasons of the Minister do not reveal any indication that he felt bound to act on the adverse security assessment in the sense of having no choice about the matter. In our view, the Minister was entitled to place great weight on the existence of the adverse security assessment and the fact that he did so does not imply that he thought he had no choice about the matter.
Third question: was the subsequent decision to refuse to revoke THE cancellation decision made in breach of the rules of procedural fairness or in a way which was unreasonable or irrational?
61 After the Appellant’s visa had been cancelled ASIO issued a qualified security assessment which concluded that he was unlikely to pose an ongoing serious threat to Australia’s territorial and border integrity and thus was not a risk to security. The Minister accepted that this assessment supplanted the earlier assessment. The Appellant then sought to revoke the earlier cancellation decision on the basis that he passed the character test. This was no longer a futile application as the qualified security assessment did not satisfy the requirements of s 501(6)(g). The Minister concluded on the revocation application that the Appellant now failed the character test because he was not of good character.
The Appellant’s first submission: whether revocation decision made in breach of the rules of procedural fairness
62 After the Appellant had made his application to revoke the cancellation decision a different Minister invited him to comment on further information the Department of Home Affairs (‘the Department’) had now received. The Minister thought that this new information might suggest that the Appellant failed the character test because he was not of good character. Section 501(6)(c) provides that a person does not pass the character test if:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
…
63 It will be seen that this permitted an inquiry into both general and criminal conduct both past and present. The distinction is important for the Appellant’s submission. The Minister’s letter now put to the Appellant that the qualified security assessment issued by ASIO assessed the Appellant as ‘a people smuggling facilitator for a venture that arrived in Reunion Island on 13 April 2019 with 120 Sri Lankan nationals on board’. The Minister told the Appellant that she ‘may have regard to this in relation to your past general conduct’. The Appellant submits that the reference to past general conduct was apt to lead him to believe that he did not have to make submissions to the Minister about the significance of the people smuggling venture insofar as it related to his past criminal conduct. Consequently, he had not made submissions to the Minister about the significance of people smuggling from a criminal perspective.
64 The Minister notes correctly that in provisions such as s 501(6)(c) which draw a distinction between general and criminal conduct it has been accepted that this does not result in a dichotomy and that conduct which might be criminal in nature may be considered under the rubric of general conduct: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195-196 (‘Baker’). We do not doubt, therefore, that the Minister was within her authority to consider the Appellant’s people smuggling activities as an aspect of his general conduct. That is not, however, the present question. Rather, what falls to be decided is whether the Minister’s letter (with its reference to general conduct) would reasonably be understood by its recipient as suggesting that she was not going to consider the Appellant’s conduct from a criminal perspective.
65 By its omission of any reference to his criminal conduct the language of the letter was, in our view, apt to suggest to the Appellant that (a) the Minister saw s 501(6)(c) as creating a dichotomy between general and criminal conduct; and (b) that the Minister was not planning to consider the criminality of his people smuggling activities. We have considered whether the Appellant, in understanding the contents of the Minister’s letter, should be regarded as being aware of this Court’s decision in Baker so that he should have understood from the terms of the letter that even though it referred to ‘general conduct’ this meant that the Minister would be entitled to consider the criminality of the conduct.
66 We do not think that this would be a reasonable way to interpret the letter. Whilst the powers of the Minister under s 501(6)(c) would have permitted her to consider the criminality of his conduct as an aspect of his general conduct, the terms of her letter suggested otherwise. The Appellant was, in our view, entitled to act accordingly.
67 Consequently, we accept that the Minister’s letter should be construed as suggesting that the Minister was not proposing to consider the criminality of the Appellant’s people smuggling activities.
68 The next question is whether the Minister thereafter breached the rules of procedural fairness by considering the criminality of the Appellant’s people smuggling activities when, as we would hold, she had told him she would not.
69 The Minister’s consideration of the question of good character was summarised by the Minister at [35] of her reasons for non-revocation as being her assessment of his ‘general conduct’. There were three elements to this and the Minister was explicit that he had not been convicted of any offences:
I have considered [the Appellant’s] general conduct, in particular his involvement in people smuggling, dishonesty when interviewed by ASIO, and his period in the community where although he did not receive any criminal convictions he was involved in planning people smuggling ventures. I find that this conduct is not according to moral principle.
70 However, other parts of the Minister’s reasons are capable of suggesting that she also took the Appellant’s involvement in people smuggling into account as an aspect of his criminal conduct. In the section dealing with people smuggling the Minister made these observations at [12], [15] and [19]:
Involvement in people smuggling
12. Involvement in people smuggling is a criminal offence in Australia carrying a significant maximum term of imprisonment of 20 years and mandatory minimum sentences applying to certain people smuggling offences. People smuggling takes advantage of and exploits those seeking protection by smuggling them across borders and putting their lives at risk for a monetary purpose. I consider that where a person has been involved in people smuggling activities, taking advantage of vulnerable asylum seekers, they have shown contempt and disregard for the law and a low standard of moral principle.
…
15. I consider that s501(6)(c) of the Act requires consideration of a person’s past and present criminal conduct to determine whether a person is of good character. I consider [the Appellant’s] involvement in people smuggling is relevant to [the Appellant’s] character based on his past conduct. I consider that any involvement in people smuggling is relevant to the consideration of whether a person is of good character for the purpose of s501(6)(c) of the Act.
…
19. I consider [the Appellant’s] past involvement in people smuggling and motivations is indicative of a lack of enduring moral conduct.
71 The trial judge noted the Minister’s submission that the language of these parts of the reasons was a ‘little loose’ in referring to the people smuggling activities as both criminal conduct and general conduct. We would agree with that description. The Minister invites this Court to conclude that this looseness did not involve a breach of procedural fairness for a number of reasons.
72 First, he reminds the Court of the well-known principle that the reasons of an administrative decision maker are not to be read with an eye keenly attuned to the detection of error: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [38] (‘M1/2021’). The question here is whether the Minister, as a matter of fact, did consider the criminal significance of people smuggling. In our view, she did. Paragraphs [12] and [15] place some significance on the fact that people smuggling is a crime and we do not think it possible to disaggregate her conclusion at [19] that the Appellant had a lack of enduring moral conduct because of his involvement in people smuggling from her earlier statements to the effect that people smuggling was a serious crime. We do not see how the conclusion at [19] could be reached unless the Minister was of the view that the Appellant was a person who had committed the crime of being involved in people smuggling.
73 Whilst accepting the injunction in M1/2021 this does not appear to us to have been a momentary lapse on the Minister’s part or an infelicity of expression or a drafting ambiguity. Both paragraphs [12] and [15] place significance on the criminal nature of the conduct.
74 Secondly, the Minister submits that she was well-aware that the Appellant had not been convicted of people smuggling as the passage at [35] of her reasons shows. No doubt, this is true but this does not detract from the fact that [12] and [15] used the criminal nature of people smuggling as part of the path of reasoning to the conclusion at [19] that the Appellant’s past involvement with people smuggling and his motivations in respect thereof was ‘indicative of a lack of enduring moral conduct’. Put another way, it is possible for a person to take into account that conduct was criminal whilst acknowledging that the conduct has not resulted in a conviction. Paragraph [35] appears to us to be an example of this duality.
75 Thirdly, the Minister submitted that the qualified security assessment had put the Appellant on notice that ASIO had assessed him as a facilitator of people smuggling. The Appellant was provided with the statement of grounds that ASIO had prepared for the qualified security assessment. We accept that it shows that ASIO thought that the Appellant had been involved in organising the voyage from Indonesia to Reunion. The Minister drew attention to the fact that in his submissions to the Minister the Appellant’s solicitor had mentioned people smuggling in the context of the Criminal Code Act 1995 (Cth) (‘Criminal Code’). As we understood the Minister’s submission, these two facts, when considered together, showed that the Appellant had been on notice of the criminal nature of people smuggling and had, in fact, made submissions about the Criminal Code.
76 We do not accept this submission. The qualified security assessment does not contain any assessment of whether the Appellant had breached Australian criminal law. To the extent that the Minister’s submission is to be understood as suggesting that the Appellant had committed an offence against Australian law, we do not accept it.
77 Whilst it is true that the Appellant’s submission to the Minister did refer to the Criminal Code it is important to attend to the context in which this occurred. It appeared in a part of the submission headed ‘Expectations of the Australian community’. The submission developed an argument that the Australian community would consider as important matters procedural values such as the right to a fair trial and due process so that it would expect that any action in relation to the Appellant’s people smuggling activities would take place under the auspices of the criminal law and, implicitly, not under the guise of administrative action. The submission was in these terms:
D. Expectations of the Australian community
…
Further the expectations that visa-holders should not engage in certain conduct, should be balanced with other expectations of the Australian community. For example, the Australian community deeply cherishes and values its institutions and the rights of individuals, even non-citizens, to a fair trial and due process to avoid arbitrary and prolonged detention. In particular, in cases where there is likely to be prolonged detention, the Australian community would expect that such powers only be exercised as a last resort, and in extreme circumstances.
In a case where it is accepted that our client has no intention to engage in people smuggling in future, and there is no risk of his doing so, the Australian community would expect that any action directed to visiting a consequence upon our client for any past involvement in people smuggling would be in accordance with the comprehensive provisions of Part 73 of the Criminal Code (Cth). That Part reflects Australian community values by not proscribing all people smuggling operations, but rather proscribing certain operations with a defined territorial connection to Australia.
78 One can certainly infer from this that the Appellant was aware through his advisors of Division 73 of the Criminal Code (which deals with people smuggling offences) and the necessity for a territorial link as a precondition to its application. However, we do not read the submission as advancing any argument that the Appellant had not committed a crime or that Division 73 did not apply. The submission was about what the Australian community expected and the point was that the community would expect criminal liability to be determined by curial process rather than administrative side wind.
79 In circumstances where the Minister had indicated in her letter that she was only looking at general conduct, the solicitors for the Appellant had no reason to advance such an argument and we do not read this passage as doing so. We therefore respectfully differ from the learned primary judge who accepted this submission by the Minister. At PJ [72(b)] his Honour concluded that the above materials had put the Appellant on notice that people smuggling was a crime under Australian law. That was not, however, the question. The question was whether he had been put on notice that the Minister was going to consider his people smuggling activities as a crime. We do not think that he was and we do not read the Appellant’s submission to the Minister as developing a contention that it was not a crime.
80 In that circumstance, we accept that there was a breach of the rules of procedural fairness: Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; 141 FCR 552 at [76]-[77]. It then becomes necessary to consider whether the breach was material so that there was a jurisdictional error. The Minister submitted briefly at [30] of his written submissions that since the Minister was aware that the Appellant had not been charged or convicted with a criminal offence it would have been immaterial for the Appellant to demonstrate that his conduct fell outside the provisions of Division 73 of the Criminal Code. This submission reflected a similar conclusion by the trial judge at PJ [72(a)].
81 We do not agree with this submission. However, it does raise the issue of materiality more generally. It is necessary for the Appellant to establish that the breach of procedural fairness which occurred was material to the decision. So much is established by the High Court’s decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 (‘MZAPC’). To ascertain whether the breach was material it is necessary to ask whether there was a realistic possibility that a different decision could have been made. An applicant for judicial review bears the onus of proving the historical facts from which this conjecture is to be drawn. As to both propositions, see MZAPC at [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
82 Pausing there, this would appear to require that the Appellant prove historical facts from which it may be inferred that there was a realistic possibility that the second Minister could have decided to revoke the cancellation decision. It would appear to be implicit in this approach that the historical facts encompass facts extending beyond the decision record. Were it otherwise, the reference to historical facts would be unnecessary given that the record before the decision maker is almost always in evidence. However, we do not read the reference as excluding the record before the decision maker for it, too, is an historical fact.
83 The question is now complicated by the High Court’s decision in Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 (‘Nathanson’). Three of the four justices in the MZAPC majority, Kiefel CJ, Keane and Gleeson JJ, have restated the effect of that test in procedural fairness cases in terms which appear, in practical terms, to change it. Whilst it remains true that the question is whether a reasonable conjecture is open the inference may be drawn not only from the historical facts which have been proved but now also from an assumption. The assumption is that the affected party would have taken advantage of a fair opportunity to be heard and the further assumption that ‘by doing so, the party could achieve a favourable outcome’ (Nathanson at [33] per Kiefel CJ, Keane and Gleeson JJ). This was said to be an ‘undemanding’ standard. Thus ‘the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome’.
84 Gageler J, on the other hand, at [55] maintained the position his Honour advanced in MZAPC:
Returning to the statement in WZARH, and now explaining it in light of SZMTA and MZAPC, the starting point is to highlight its foundational proposition that where the procedure adopted by an administrator can be shown on the balance of probabilities itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness will be established by nothing more than that failure. Building on that foundation, the statement can be taken to underscore that the denial of procedural fairness so established on the balance of probabilities will result in a finding of jurisdictional error if the applicant for relief establishes nothing more than the reasonableness, within the parameters set by the historical facts established on the balance of probabilities, of the conjecture that the decision could have been different had a fair opportunity to be heard been afforded. Unless there is something in the historical facts established on the balance of probabilities upon which to base an inference that the decision could not have been different had a fair opportunity to be heard been afforded, establishing the reasonableness of that conjecture will not be difficult.
85 Gordon J maintained her Honour’s support for the idea that materiality was irrelevant unless a respondent to a judicial review application showed that the denial of procedural fairness did not deny the affected person the possibility of a successful outcome: [77] and [81] per Gordon J. The position of Edelman J was more nuanced but, in any event, inconsistent with the majority formulation in MZAPC: see [94] but cf [104], [105] and [127].
86 The situation on the authorities is therefore unclear. There is a clear enunciation of an approach by four Justices in MZAPC. In Nathanson the Court sat only six Justices. Three of those Justices reformulated the test in MZAPC in terms which do not appear in MZAPC. One of them adhered to the terms of MZAPC. Two of them voiced their continuing opposition to materiality. Consequently, there is no majority ratio decidendi for the unanimous decision to dismiss the appeal. As such, the terms of MZAPC remain binding unless this Court were persuaded by the reasons of Kiefel CJ, Keane and Gleeson JJ that the reformulation in Nathanson does not effect a change to what was held in MZAPC (as their Honours said in Nathanson at [33], ‘Nothing said in MZAPC denies this’). We are not so persuaded. Whilst the statement of the plurality in Nathanson at [33] seems, with respect, a more sensible approach than that required by MZAPC, in our view it extends or goes beyond what was held in MZAPC. That Gageler J wrote separately in terms which are the same as in MZAPC underscores this.
87 Consequently, we conclude that we are bound to apply MZAPC without regard to the reformulation of the plurality in Nathanson.
88 In this case, as the Appellant correctly submits, the record before the Minister establishes that there was insufficient material for the Minister to conclude that the Appellant had committed the offence. The relevant provisions of the Criminal Code are contained in Division 73. Section 73.1 provides:
73.1 Offence of people smuggling
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b) the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c) the other person is not a citizen or permanent resident of the foreign country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
(3) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of people smuggling.
89 Section 73.3 provides:
73.3 Aggravated offence of people smuggling (at least 5 people)
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of a group of at least 5 persons (the other persons) into a foreign country (whether or not via Australia); and
(b) the entry of at least 5 of the other persons into the foreign country does not comply with the requirements under that country’s law for entry into that country; and
(c) at least 5 of the other persons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
(3) If, on a trial for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of that offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 73.1(1), the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of an offence against subsection 73.1(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
90 Section 73.3A provides:
73.3A Supporting the offence of people smuggling
(1) A person (the first person) commits an offence if:
(a) the first person provides material support or resources to another person or an organisation (the receiver); and
(b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:
(a) the first person; or
(b) a group of persons that includes the first person.
(3) To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.
91 These provisions were given extra-territorial effect by s 73.4:
73.4 Jurisdictional requirement
A person commits an offence against this Subdivision only if:
(a) both:
(i) the person is an Australian citizen or a resident of Australia; and
(ii) the conduct constituting the alleged offence occurs wholly outside Australia; or
(b) both:
(i) the conduct constituting the alleged offence occurs wholly or partly in Australia; and
(ii) a result of the conduct occurs, or is intended by the person to occur, outside Australia.
92 The Minister’s reasons for non-revocation (at [1] and [13]) and ASIO’s unclassified statement of grounds for the qualified security assessment demonstrate that the jurisdictional requirement was satisfied because the Appellant held an Australian visa and was resident here at the time of his involvement in the people smuggling venture to Reunion. The briefing note to the Minister (at [25]) said this:
25. In this case it is recommended that a decision be made relying on the unclassified Statement of Grounds provided by ASIO, along with information on Departmental systems which can be disclosed in the Statement of Reasons. There is sufficient information to substantiate the ground in s501(6)(c) in the unclassified material. Proceeding on this basis will limit the risk of having to disclose a classified QSA to [the Appellant] and the negative impact this would have on the Department’s ongoing relationship with ASIO and risk to national security.
93 From this it may be inferred that the material upon which the Minister relied in making her decision comprised the unclassified statement of grounds which accompanied the Minister’s decision together with information from the Department’s systems to the extent that it was disclosed in the Minister’s reasons. Nothing in those materials suggests that there was evidence before the Minister that the requirements of s 73.1(1)(b) were met, i.e., that the entry of the 120 Sri Lankans into Reunion was against the laws applying there.
94 That requirement was a ‘circumstance in which conduct … occurs’ within the meaning of s 4.1(1)(c) of the Criminal Code so that by force of that provision the matter in s 73.1(1)(b) was one of the physical elements of the offence. Since s 73.1(1)(b) does not specify a fault element for the physical element, s 5.6(2) applies so that the fault element is taken to be recklessness. By s 5.4(1) a person is reckless with respect to a circumstance if:
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
95 The Appellant submitted that the Minister could not have been satisfied that the Appellant had committed an offence. If there was material before the Minister which suggested the entry by the Sri Lankans into Reunion was against the laws applying there, then this question would arise. However, since there was no such material it does not.
96 The question then becomes whether these matters allow an inference to be drawn that there was a realistic possibility that the second Minister could have decided to revoke the cancellation decision had that submission been made. The answer to that turns on what, had that submission been made, the Minister could have done. The options would appear to include:
1. The Minister deciding that she was not going to pursue any line of inquiry about whether the conduct was criminal and pursuing thereafter a line of reasoning which avoided the pitfalls of [12] and [15] of her reasons for non-revocation;
2. The Minister deciding to seek further information from the Department and being informed that the law of Reunion did not make unlawful the entry of the 120 Sri Lankans; or
3. The Minister deciding to seek further information from the Department and being informed that the law of Reunion did make unlawful the entry of the 120 Sri Lankans.
97 None of these constitute historical facts referred to in MZAPC. Rather, they are series of competing inferences drawn from the Minister’s decision record. It is true that (b) and (c) would have resulted in a factual inquiry about the state of the law in Reunion. But that inquiry would only occur if the Minister was minded to seek further information from the Department and the question of whether that would occur is itself merely an inference from other facts.
98 It seems to us that inference (a) was a realistic possibility although not the only possibility. If that inference were drawn, there was also a realistic possibility that the Minister could have decided to revoke the cancellation decision. Once the colour was drained from the criminal aspect of people smuggling, the Minister’s reasoning about contempt for the law and low moral standards becomes more problematic although not necessarily insurmountable. As the Court pointed out during argument in Jaffarie, the moral obloquy of people smuggling is not always clear cut as the example of Oskar Schindler illustrates.
99 This is not to say that the Minister might not have reasoned by reference to the particular features of this people smuggling venture that it reflected poorly on the character of the Appellant. Rather, it is only to observe that the shortcut of relying upon the supposedly criminal nature of the conduct as a crutch for that conclusion would not have been available. To do so, the Minister would have been required to conduct a more detailed analysis of the morality of this particular people smuggling venture.
100 In any event, we conclude that there was a realistic possibility, had the Minister afforded the Appellant procedural fairness, that his revocation application would have succeeded.
101 In those circumstances, we conclude that the Minister denied the Appellant procedural fairness and that this breach was material to the outcome. Jurisdictional error is therefore established. Accordingly, the second Minister’s non-revocation decision should be set aside and the matter should be reconsidered according to law.
The Appellant’s second submission: whether the finding by the Minister that the Appellant’s conduct was criminal etc. was irrational or unreasonable
102 The Appellant then challenged on rationality grounds the Minister’s conclusion that (a) he had engaged in criminal conduct and (b) he had demonstrated contempt of and disregard for the law. The Appellant submitted that this conclusion appears in the Minister’s reasons at [12]. The Minister submitted that she had not made such a finding but, as we have explained above, we do not accept that characterisation of this part of the Minister’s reasons. The basis for the Appellant’s rationality challenge was that there was no evidence for the finding.
103 The qualified security assessment and the document setting out the grounds on which it had been issued were before the Minister. The latter contained the fruits of ASIO’s assessment of the Appellant.
104 This statement of grounds recorded (at [12]) admissions by the Appellant at an interview conducted with him that he had ‘recruited and facilitated the travel of individuals from Sri Lanka to Indonesia to join the Reunion Island venture’ and that he had ‘facilitated the payment of funds between potential illegal immigrants (PII) and other organisers’. He admitted that he had told the Indonesian-based organisers ‘which people were joining the venture’ and had asked them ‘to arrange their travel’: [12(b)]. The organisers had then made the bookings and the Appellant had ‘told the PII where to go to pick up the tickets’. He admitted that he ‘was a middleman between the PII and the Indonesia-based organisers’: [12(b)].
105 The Minister noted in her reasons at [13] that ‘[the Appellant] does not dispute’ ASIO’s account of his people smuggling activities. She also recorded that the central thrust of his submissions to her was to admit his involvement in people smuggling but to seek to demonstrate that he would not be involved in it in the future: [16]. In that circumstance, there was no dispute about the primary facts of his people smuggling activities.
106 Was it rational or reasonable for the second Minister to conclude that the Appellant had committed a crime? We have set out the relevant provisions above. For the same reasons we have given in relation to the Appellant’s procedural fairness challenge we would conclude that there was no material before the Minister which could rationally satisfy her that the requirement in s 73.1(1)(b) had been met – there was no evidence that the entry of the Sri Lankans into Reunion was contrary to the laws applying there. As such, we do not think that the Minister could rationally or reasonably conclude on the material before her that the Appellant had committed any offence.
107 In relation to her conclusion that he had shown contempt of and disregard for the law, the Appellant’s point was the same, namely, that there was no evidence that the Appellant’s conduct constituted an offence. On that basis, we would accept the submission for the reasons just given. For completeness, the Appellant did not advance an argument that in order to conclude that he had shown a contempt of or disregard for the law, it was necessary for there to be evidence that the Appellant was aware that Australian criminal law applied to people smuggling between Indonesia and Reunion and, knowing that, went ahead and did it. It may be doubted that the Appellant was aware that Division 73 had the extra-territorial operation that it did. However, this was not the submission advanced by the Appellant and it is not necessary to reach a view about it.
108 In any event, we uphold this aspect of the Appellant’s rationality challenge.
The Appellant’s third submission: whether it was irrational for the Minister to conclude that the Appellant’s actions had posed a significant risk to the persons who were being smuggled
109 The Appellant focuses on a portion of the Minister’s reasons for her decision not to revoke the cancellation decision at [12] under the heading ‘Involvement in people smuggling’. In part of that paragraph (which is set out in full above) the Minister said that people smugglers put lives at risk for monetary gain. The Appellant submitted that this was a finding about him for which there was no evidence. As we understood it, the point was that there was no evidence that the 120 Sri Lankans who had been smuggled from Indonesia to Reunion had had their lives put at risk.
110 The Minister met this argument by submitting that the finding was about people smuggling in general and not about the Appellant in particular. Assessment of this submission turns on what [12] of the reasons for non-revocation means. In our view, the first two sentences (including the impugned sentence) are general statements about the nature of people smuggling. As such, we do not think that the impugned statement involves any conclusion about whether the Appellant had exposed the 120 Sri Lankans on board the vessel to a risk of losing their lives. We do accept that the last sentence of [12] is, in substance, a statement which was then applied to the Appellant but it does not include the content of the impugned statement and we do not, therefore, agree that the finding the Appellant alleges was made was, indeed, made. In that circumstance, we reject this aspect of the rationality challenge.
Conclusion
111 The appeal should be allowed and the orders of the trial judge set aside. In lieu thereof there should issue a writ of certiorari absolute in the first instance directed to the second Minister to quash the revocation decision and a writ of mandamus absolute in the first instance to the second Minister now to decide the Appellant’s revocation application according to law within 28 days. She should also be ordered to pay the costs of the first instance proceedings as taxed or agreed but the primary judge’s costs order in favour of the Director-General for Security should not be disturbed. In this Court the Minister must bear the costs of the appeal as taxed or agreed.
112 Finally, the circumstances in which the initial adverse security assessment came to be made warrant some comment. One view of the qualified security assessment is that it suggests that the serious risk to national security identified in the first assessment was the fact that the vessel would, in travelling from Indonesia to Reunion, be passing through international waters some of which lay in Australia’s search and rescue zone although outside its territorial sea. The Court may not, of course, know the full circumstances in which the initial adverse security assessment was made and there may, in fact, have been other circumstances not known to us.
113 However, it is also possible that this is the basis on which ASIO concluded that there was a serious threat to national security. If so, then it may be open to question whether this was a view which could or should have been arrived at. In the circumstances, we will take the course of referring our reasons to the Inspector-General of Intelligence for him to act upon as he sees fit. There may be nothing in the point but the Inspector-General is better placed than we are to assess that.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perram, Halley and Goodman. |
Associate:
