Federal Court of Australia

Minister for Home Affairs v BRO18 [2024] FCAFC 27

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2, 3, 4 and 5 of the orders made by the primary judge be set aside and, in their place, it be ordered that:

(a)    the application be dismissed; and

(b)    in the proceeding below, the applicant pay the respondent’s costs as assessed 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.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal by the Minister for Home Affairs from an order made by a judge of this Court quashing a decision made in 2017 by the Minister for Immigration and Border Protection in person to cancel the visa held by the respondent (BRO18). The decision was made under s 501(2) of the Migration Act 1958 (Cth), which is in the following terms:

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.

2    It is common ground, as it was before the primary judge, that the Minister erred in the formation of the suspicion that BRO18 did not pass the character test as required by s 501(2)(a), being part of the first stage of what is necessary to enliven the discretion to cancel a visa on character grounds. The error was that the Minister’s suspicion was based wholly upon one of BRO18’s three 2008 sentences of imprisonment, all three sentences having been the basis for the formation of the same suspicion when a delegate of the Minister previously considered cancellation of his visa in 2009 and decided not to cancel the visa at that time. This re-exercise of power was upon a basis that was contrary to the decision in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430.

3    The power in s 501(2) is a “single power”, exercised by way of a two-stage decision making process: Makasa at [34]. The first stage involves the decision-maker determining whether she or he is satisfied that the visa-holder passes the character test: Makasa at [35]-[38]. If a visa-holder passes the character test, the only decision open is to not cancel the visa under s 501(2): Makasa at [39]. If not so satisfied, the second stage involves the decision-maker exercising a discretion to either cancel, or not to cancel, the visa: Makasa at [40]. The power in s 501(2), once exercised in any way, is final, and can only be exercised again when the suspicion is formed upon a “different factual basis” than it was for the previous exercise of the same power: Makasa at [57].

4    The High Court’s reasoning was as follows:

[55]    … s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the [Acts Interpretation Act 1901 (Cth)], to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker, be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa.

Result

[56]    The result, in short, is that a decision of a delegate or the AAT not to cancel a visa made in the exercise of the power conferred by s 501(2) of the Act on the basis of facts giving rise to a reasonable suspicion that a visa holder does not pass the character test is final, subject only to ministerial override in the exercise of the specific power conferred by s 501A.

[57]    The Minister or a delegate can re-exercise the power conferred by s 501(2) to cancel the visa if subsequent events or further information provide a different factual basis for the Minister or a delegate to form a reasonable suspicion that a visa holder does not pass the character test at the first stage of the requisite two-stage decision-making process. But neither the Minister nor the delegate can rely on subsequent events or further information simply to re-exercise the discretion to cancel the visa at the second stage of the decision-making process.

5    The sole ground in the Minister’s appeal is an assertion that the primary judge erred in concluding that the error in the 2017 decision was material, so as to render it a vitiating jurisdictional error. The only issue on appeal is therefore whether the primary judge erred in finding that materiality was established by BRO18, who bore the onus to prove that the error made was jurisdictional so as to vitiate the visa cancellation decision.

BRO18’s history and the Minister’s 2017 decision

6    BRO18 is a citizen of Burundi, born in 1982. He arrived in Australia in February 2002 and was granted his current visa in 2007. On 18 December 2008, he was convicted on three offences and sentenced as follows:

(a)    in the District Court of Western Australia, aggravated burglary and committing an offence in a dwelling (12 months’ imprisonment) and breaching a violence restraining order in circumstances of aggravation (6 months’ imprisonment); and

(b)    in the Magistrates Court of Western Australia, aggravated assault occasioning bodily harm (6 months’ imprisonment).

7    On 2 April 2009, BRO18 was notified of the Minister’s intention to consider the cancellation of his visa pursuant to s 501(2) of the Migration Act. The letter notifying him of this intention advised of reliance on the above sentences. He did not dispute that he failed the character test, and advanced other reasons as to why his visa should not be cancelled. On 31 July 2009, a delegate of the Minister decided not to cancel his visa.

8    After the 2009 decision, BRO18 was convicted and given suspended sentences of imprisonment in the Magistrates Court of Western Australia in May 2012 (five sentences), October 2014 (one sentence) and August 2015 (three sentences), totalling 42 months’ imprisonment.

9    A person will not pass the character test if that person has a substantial criminal record as defined by s 501(7): s 501(6)(a). Under s 501(7)(c) and s 501(7)(d) respectively, a person has a substantial criminal record for the purposes of the character test if the person has been sentenced to a term of imprisonment of 12 months or more, or has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. Suspended prison sentences fall within the description of a term of imprisonment for the purposes of s 501(7): see Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 per Rares J at [9] and [12], with Moore J agreeing and Nicholas J reaching the same conclusion. It follows that BRO18’s post-2009 suspended sentences in aggregate comfortably exceeded the threshold for a substantial criminal record of 12 months’ imprisonment based upon s 501(6)(a), read with s 501(7)(d) and s 501(7A).

10    In a letter dated 6 March 2015, BRO18 was again notified of the Minister’s intention to consider cancelling his visa. That notification was sent again in a letter dated 14 May 2015. For a time, he retained a migration agent, but that agent ceased to act. He was given a further opportunity to respond, but nothing was received from him. In 2017, further information related to the sentences was received by the Minister and provided to BRO18 for comment. On the evidence before this Court, it seems that he did not respond, but nothing turns on this.

11    On 10 August 2017, the Minister in person made the following decision to cancel BRO18’s visa:

I reasonably suspect that [BRO18] does not pass the character test and [BRO18] has not satisfied me that he passes the character test. I have decided to exercise my discretion under s501(2) of the Migration Act to cancel [BRO18]’s visa. I hereby cancel [BRO18]’s Class XA, Subclass 866 Protection (Permanent) visa. My reasons for this decision are set out in the attached Statement of Reasons.

12    The limited part of the Minister’s reasons that is relevant for this appeal, confined to the formation of the suspicion in relation to the character test and the consideration of BRO18’s criminal offending as part of the exercise of the discretion to cancel BRO18’s visa (noting there has been no challenge to the exercise of that discretion), is better reproduced than summarised, as follows:

CHARACTER TEST

[5]    The character test is defined by s501(6) of the [Migration] Act. The relevant ground of the character test in this case is s501(6)(a): the non-citizen has a substantial criminal record, as defined by s501(7)(c) of the Migration Act.

[6]    On 18 December 2008, [BRO18] was convicted in the District Court of Western Australia at Perth of aggravated burglary and commit offence in dwelling (sic) and sentenced to 12 months imprisonment.

[7]    As a result of this sentence of imprisonment, [BRO18] has a substantial criminal record. I find that he does not pass the character test by virtue of s501(6)(a) of the Act with reference to s501(7)(c) of the Migration Act and that he has not satisfied me that he passes the character test.

DISCRETION

[8]    Having found that [BRO18] does not pass the character test and having assessed the information set out in the attachments, I considered whether to exercise my discretion to cancel [BRO18]’s visa, taking into account factors that I considered weighed against and in favour of cancelling [BRO18]’s visa. In making my decision I was mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern should be allowed to remain in Australia.

Protecting the Australian Community

[9]    In making my decision I considered the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

Criminal Conduct

[10]    In considering the nature and seriousness of [BRO18]’s criminal offending, I am of the view that violent offences are very serious.

[11]    On 18 December 2008, [BRO18] was convicted in the District Court of Western Australia at Perth of aggravated burglary and commit offence in dwelling, and breach of violence restraining order in circumstances of aggravation and was sentenced to twelve and six months imprisonment respectively. The offences occurred on 13 September 2008. [BRO18] assaulted his former partner, who was nine months pregnant at the time of the assault. He was in her residence without her permission and was subject to a violence restraining order at the time he assaulted her.

[12]    I am mindful that in 2006, [BRO18] assaulted the same partner by kicking her in the abdomen when she was six months pregnant.

[13]    On 18 December 2008 [BRO18] was convicted in the Magistrates Court of Western Australia at Perth of aggravated assault occasioning actual bodily harm and sentenced to a term of imprisonment of six months. The Magistrate did not provide a description of [BRO18]’s offending however he described the offence as a ‘serious assault’.

[14]    An Immigration report dated 16 March 2009 describes the circumstances of this offence; after a verbal altercation with his partner, [BRO18] grabbed her around the neck with both hands, using force to strangle her. The victim passed out on the laundry floor where [BRO18] repeatedly punched her in the face. During the assault the victim was in and out of consciousness and [BRO18] made comments to her that if she went to police, their baby would be taken into care like their two other children.

[15]    I note that [BRO18] also has a lengthy record of criminal convictions with non-custodial sentences for violent offences, drug offences, dishonesty offences, stealing, burglary, breaches of judicial orders, driving offences and drink driving offences between 8 June 2006 and 19 January 2017. I note comments by the Magistrate on 31 October 2014, that [BRO18] ‘...is starting to develop a serious criminal record’.

[16]    I find that the cumulative effect of [BRO18]’s persistent offending has come at substantial cost to the community through law enforcement costs, court appearances, time spent in prison, rehabilitation costs and outstanding fines.

[17]    I find that the sentences [BRO18] received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as serious.

[18]    I find that [BRO18]’s criminal record is serious when viewed cumulatively, noting his persistent recidivism across a lengthy period. Additionally I consider his violent offences against his pregnant former partner to be serious individually.

13    In the case of both BRO18 and Mr Makasa, only the sentences relied upon for the prior exercise of the power in s 501(2) were relied upon in forming the suspicion as part of the re-exercise of the power. But for Mr Makasa, the subsequent sentences involved only a $300 fine and a driving disqualification, such that the error in relying upon the earlier sentences considered in the prior exercise of the power was always going to be material and thus jurisdictional as there was no relevant different factual basis for a suspicion that he did not pass the character test per s 501(6)(a), and no other ground was pleaded to be engaged on appeal: Makasa at [48]. The re-exercise of the s 501(2) power was therefore impermissible: Makasa at [56]-[57]. Here, however, the Minister would inevitably have been satisfied that BRO18 failed the character test had he relied upon the post-2009 sentences for the formation of his suspicion, and not just in relation to the exercise of discretion. The live question is whether assessing the materiality counterfactual, as discussed below, permits such reasoning.

Materiality principles

14    The parties do not disagree in substance with the principles applicable to the determination of materiality, as opposed to their starkly different views as to how they should be applied. The principles, therefore, may be succinctly stated as follows:

(a)    the applicant for judicial review bears the onus of establishing the materiality of any error so as to render it jurisdictional: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 per Bell, Gageler and Keane JJ at [4], [41], [46];

(b)    an error is only material if compliance could realistically have resulted in a different decision (SZMTA per Bell, Gageler and Keane JJ at [45]), as distinct from the higher bar of whether it necessarily would have resulted in a different decision: see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [39];

(c)    materiality is an ordinary question of fact, to be determined by inferences drawn from the evidence: SZMTA per Bell, Gageler and Keane JJ at [46];

(d)    the determination of materiality by a court involves “a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation”; alternatively conceptualised as being “concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker” and is a “backward looking [inquiry] and concerns what the decision-maker did in the particular case”: MZAPC per Kiefel CJ, Gageler, Keane and Gleeson JJ at [37], quoting from, respectively, CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 95-96 per Kiefel CJ and Gageler J at [47], and BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170 at 187 [87]-[88]; and

(e)    answering the counterfactual question requires determination of “how the decision that was in fact made was in fact made” applying the usual civil proceedings fact-finding processes on the balance of probabilities to ascertain what could have occurred had there been compliance with the legal obligation that was breached: MZAPC per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

The competing submissions

15    It is common ground that the Minister’s reliance on one of the three 2008 prison sentences that was relied upon for the same purpose in making the 2009 decision, namely for the formation of suspicion that BRO18 did not pass the character test, was an error. It entailed a breach of the finality of the earlier exercise of the power under s 501(2), to be inferred by the existence of the specific power of the Minister to override a delegate or Tribunal decision in s 501A: Makasa at [56]. It did not entail the Minister having regard to any “subsequent events or further information” other than those relied upon for the 2009 decision in forming the suspicion: Makasa at [57].

16    The substance of the Minister’s argument is that materiality can be assessed by having regard to what would have happened if the post-2009 sentences had been taken into account in the formation of the suspicion, and not just at the discretionary second stage. The Minister submits that, had that happened, which was the only rational way to view the situation, the result would have been the same, there being no challenge to the exercise of the discretion at the second stage. The Minister submits that the error in only having regard to one of the 2008 sentences was not material, and therefore not a jurisdictional error, because:

(a)    the “different factual basis” for the re-exercise of the power in s 501(2) required by Makasa existed and was known to exist by the Minister at the time of the decision being made, albeit that it was not deployed at the suspicion formation stage;

(b)    s 33(1) of the Acts Interpretation Act 1901 (Cth) therefore applied to permit the power in s 501(2) to be re-exercised upon that different factual basis;

(c)    even if the Minister was not permitted to rely upon the 2008 conviction at all, that being alone or in conjunction with the post-2009 convictions (which was not the Minister’s position), the error in doing so was not material and therefore not a jurisdictional error, because BRO18 did in fact have a post-2009 substantial criminal record by reason of having prison sentences totalling 42 months in that period of which the Minister was aware. In those circumstances, had the error in relying upon the 2008 sentence (or only the 2008 sentence) not been made, the inevitable consequence would have been the formation of the necessary suspicion that he did not pass the character test, noting that upon remittal any other conclusion would not be realistically possible;

(d)    the application of the principles applicable to a determination of materiality in this case precludes BRO18’s discharging the onus to show that a different result could realistically have occurred, because:

(i)    the Minister in fact formed the suspicion, and had before him and considered the post-2009 sentences, albeit in relation to the exercise of the discretion; and

(ii)    there was no reason to doubt that on a counterfactual analysis the post-2009 sentences totalling 42 months imprisonment would have been considered at the suspicion formation stage,

leading to no other possible conclusion than that BRO18 failed the character test; and

(e)    it followed that there was no possibility, let alone a realistic possibility, of a different outcome.

17    The Minister’s primary position in relation to the primary judge’s decision and reasons is that the conclusion her Honour reached as to materiality was wrong for the reasons outlined above. But the Minister goes further by relying upon the following specific asserted errors:

(a)    The primary judge, at J[68], in finding that the objective availability of an alternative basis for forming the suspicion, being the post-2009 sentences, could not retroactively correct the Minister’s error, did not apply the necessary counterfactual reasoning as to what could have happened had the suspicion not been formed on an impermissible basis. Had that error not occurred, the Minister submits that the inevitable result is that the suspicion would have been formed by reference to the known post-2009 sentences (for the reasons outlined above) and therefore the error could not realistically have made any difference to whether the required suspicion was formed.

(b)    The primary judge also misapplied the required counterfactual analysis at J[73] by relying upon the power in s 501(2) being discretionary, and on that basis finding that there was no obligation on the Minister to turn his mind to the post-2009 sentences to form the relevant suspicion and it could not be assumed that he would have considered the later sentences on a counterfactual analysis. That is asserted to be so because the historical fact is that the Minister did form the state of mind required by s 501(2)(a) and (b), did exercise the discretion to cancel BRO18’s visa, and in doing so was aware of and did consider the post-2009 prison sentences (albeit in exercising the discretion to cancel BRO18’s visa). The Minister submits that the counterfactual analysis in this case concerns only whether the correct approach on the available information could have produced a different result, which it could not. The only counterfactual evaluation and conclusion available is that, had the error not occurred, the Minister would have considered the post-2009 sentences in relation to the suspicion formation as well, rather than only at the exercise of the discretion stage, and the result would have been the same.

18    BRO18 submits that the necessary counterfactual analysis involves consideration of what could have happened had the error not been made, not a rewriting of history to envisage a reasoning process that had never taken place, because that is speculative. BRO18 contends that the Minister on appeal had to establish that the error could not have made a difference to the outcome, not merely that there was some theoretical basis whereby that error might not have made a difference.

19    The substance of BRO18’s argument is that materiality is to be assessed by the more limited step only of removing the consideration of the 2008 sentence, which would leave no basis for the assessment of character and therefore necessarily produce a different result at the first hurdle. BRO18 asserts that it is not permissible to have regard to the post-2009 sentences because they were never considered by the Minister for the purposes of formation of the suspicion. BRO18’s argument is that the 2008 sentences must be removed from consideration, but what was not considered in the first place as to suspicion formation cannot be added to the counterfactual evaluation of materiality.

Consideration

20    The competing arguments were advanced upon the basis that the Minister was precluded from having any regard to any of the 2008 convictions, although the Minister did suggest that this was going further than Makasa decided. BRO18’s argument depends in large measure upon any consideration of any of the 2008 sentences in relation to the formation of the suspicion being precluded by Makasa. That is, his case is that those 2008 sentences were permanently removed from consideration in the formation of the suspicion once they had been deployed that way in the prior exercise of the s 501(2) power in 2009.

21    The nature of the Makasa proscription, and the circumstances in which the power in s 501(2) may be re-exercised, is an important aspect of the assessment of the materiality of an error in the re-exercise of that power, in order to determine whether the error made by the Minister in 2017 was jurisdictional. It was not in doubt in Makasa that the error in the consideration of the sentences previously considered in the exercise of the power was material because there was no alternative way of meeting the threshold of suspicion of the visa-holder in that case having a susbtantial criminal record so as to fail the character test as expressed in s 501(6)(a), read with s 501(7), and no other possible basis of failing the character test was relied upon. But that is not so in the case of BRO18.

22    It needs to be kept steadily in mind that the threshold is one of realistic possibilities. It is easier to show a realistic possibility of the post-2009 sentences being considered together with the 2008 sentence if the principles in Makasa permit this as part of the Minister’s counterfactual analysis. If the Minister was entitled to have regard to the 2008 sentence, but not to that sentence alone because of Makasa, the counterfactual analysis required to determine materiality makes the Minister’s argument stronger. That is because it can more easily be established that the error will be immaterial on the Minister’s formulation of the counterfactual, because then the question is whether any of the post-2009 offences would most likely have been considered as well as the 2008 sentence. It removes an essential plank from BRO18’s formulation of the appropriate counterfactual analysis because that requires removal of any repeated consideration of the 2008 conviction, and nothing more being considered, leading to no possibility of the same outcome.

The Makasa proscription and the error in the 2017 decision

23    It follows from the foregoing that the assessment of materiality in this case is affected by the ambit of the Makasa finality proscription, and the High Court’s identification in Makasa of what is needed to enliven the re-exercise of the power by way of “subsequent events or further information” so as to provide a “different factual basis” for the formation of the suspicion that BRO18 did not pass the character test. A proper understanding of Makasa therefore frames the counterfactual exercise required to determine whether there was a realistic possibility of a different outcome had the error in the 2017 decision not been made.

24    The High Court explained further what was meant by “subsequent events or further information” amounting to a “different factual basis” for exercising the power in s 501(2) at [48] (footnote embedded):

Turning then to the scheme of the [Migration] Act and the AAT Act, it is important at the outset to recognise that nothing in the legislative scheme indicates an intention to displace the application of s 33(1) of the [Acts Interpretation Act 1901 (Cth)] to the power conferred by s 501(2) of the Act to the extent that subsequent events or further information not previously before the Minister or a delegate provide a different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test. A new sentence of imprisonment amounting by operation of s 501(7)(c), or contributing by operation of s 501(7)(d), to the coming into existence of a new substantial criminal record within the meaning of s 501(6)(a) is an example. A new conviction providing a reasonable basis for making a revised assessment of the visa holder’s “character” – his or her “enduring moral qualities” (Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 529 [65]) – under s 501(6)(c) is another example. Section 501(6)(c) was not argued to be engaged in this appeal.

25    A number of points emerge from Makasa at [48]:

(a)    The “subsequent events or further information” relate to something that was not previously before the Minister (or delegate) so as to provide a “different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test”. It follows that determining whether there has been a re-exercise of the power in s 501(2) in conformity with Makasa may in some cases require a comparison to be made between the original foundation for the formation of the suspicion and the different foundation for the formation of the suspicion later relied upon. In this case, the re-exercise foundation was confined to a subset of the original foundation, so clearly did not conform with the Makasa requirement.

(b)    The re-exercise of the power in s 501(2) may be one that entails making a “revised assessment” of the suspicion reasonably able to be formed about the visa holder’s “character” under s 501(6)(c) upon a differently constituted foundation by reason of additional information, rather than a fresh assessment upon a wholly new foundation, excising the past.

(c)    That revised assessment is of the visa holder’s “enduring moral qualities”, a phrase that apparently has its origins in the judgment of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Davies, Lee and RD Nicholson JJ) at 431-2, drawing a distinction between this and good standing, fame or repute. The phrase “enduring moral qualities” as used in Irving was applied in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197 (Burchett, Branson and Tamberlin JJ), Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408 (Heerey, Lindgren and Emmett JJ), and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [65] (Gleeson CJ and Gummow J, Hayne J agreeing). Gleeson CJ and Gummow in Jia at [65] said, citing Irving and Baker, that “enduring moral qualities” was concerned with “disposition rather than general reputation”, and that “past conviction of serious crime did not necessarily mean, without examination of any other matters, that a person was of bad character at the time of decision-making”. Their Honours referred to the observation by Latham CJ that a person “may be guilty of grave wrongdoing and may subsequently become a person of good character”: In re Davis (1947) 75 CLR 409 at 416. This reasoning suggests that “enduring moral qualities” is pointing to a holistic assessment of a person, so far as the criteria in s 501(6) permit this, rather than a process that entails permanently disregarding indicia of character that has been previously considered.

26    In the second example given in Makasa at [48], a new conviction provides a reasonable basis for making a revised assessment of a visa holder’s character within the terms of s 501(6)(c) upon a different factual basis, so as to reconsider what the person’s “enduring moral qualities” are. This does not provide a clean slate excluding the past. It requires there to be additional information beyond that which has previously been considered so that the exercise of the power is enlivened once again upon a different foundation. As in Makasa, there was no suggestion in this case of reliance upon s 501(6)(c) in relation to the character test, with the reliance being confined to s 501(6)(a).

27    The same could be said of any event that is relevant to any of the character test grounds in s 501(6). This allows any sentence previously considered in the exercise of the power in s 501(2) to be reconsidered in the context of a new event, or becoming aware of further information, including about past events, relevant to character. A further prison sentence following a new conviction is the most obvious means of there being a different factual basis, not least because of the aggregating operation of s 501(7)(d): Makasa at [48]. The previously considered sentence and a new sentence might, for example, combine to pass the 12-month threshold for a substantial criminal record, which the sentence previously considered alone did not do. But additional information that had existed at the time of the previous exercise of the power, but not before the Minister (or delegate), including casting new light on those previously considered events, might also permit a revised assessment.

28    The soundness of the above reasoning can be tested by considering the alternative. If, in the course of re-exercising the power under s 501(2), the Minister could not consider a prison sentence that had already been considered as part of the prior exercise of the power, along with a new event or new information having a bearing on character so as to create a different factual basis, that would require the second assessment to be conducted upon a fictional or blinkered basis that no prior event relevant to character had taken place at all. It is difficult to envisage the High Court intending such an outcome, especially given the reference in [48] to a revised assessment, not to a wholly new assessment, and to the creation of a new substantial criminal record, either by a new sentence on its own meeting the threshold for a substantial criminal record, or by a new sentence contributing to the creation of such a record with a prior sentence or sentences by the operation of the aggregation provision in s 501(7)(d). This is the better way to read the reference to “contributing” in [48] of Makasa, rather than it referring to a substantial criminal record founded only on new sentences not previously considered.

29    Moreover, to ignore a relevant past event in the context of new information would not be an assessment of enduring moral qualities, but rather only of transient moral qualities in an isolated point in time, even though s 501(6)(c) was not relied upon in this case. This is contrary to the reasoning in Jia at [65], referred to at [25(c)] above.

30    Applying the above reasoning as to what Makasa permits to the present situation, there would have been no error in the Minister basing the 2017 finding of a suspicion that BRO18 did not pass the character test in part upon the previously considered 12-month prison sentence imposed by the Perth District Court on 8 December 2008, provided it was accompanied by consideration of additional information relevant to the character test to constitute, in combination, a different factual basis for the re-exercise of the power in s 501(2). The post-2009 sentences, or any of them, meet that description. The combination of the previously considered sentence and the new sentence(s) would be a different factual basis for the exercise of the power in s 501(2).

31    Viewed in this way, the error in the making of the 2017 decision lies not in having regard to the 2008 sentence in the formation of the suspicion per se, but in having regard only to that sentence, being part of what had been considered in making the 2009 decision, being all three 2008 sentences, such that there was no different factual basis in the sense of new or additional information deployed at the suspicion formation stage as required by Makasa for the re-exercise of the power in s 501(2). The fact that the post-2009 sentences were considered, albeit only at the discretionary second stage, is highly relevant to the assessment of materiality, not least because it has a bearing on the predictive aspect of the counterfactual analysis required. It is inherently more likely that the post-2009 sentences would have been considered, on a counterfactual analysis, at the suspicion formation stage, given that they were considered at the discretion stage, than if they had been wholly disregarded or not known.

32    Even if that is not correct, and Makasa does require that the 2008 convictions be wholly disregarded in the formation of the suspicion, as already noted, the post-2009 sentences in aggregate resulted in the imposition of 42 months of imprisonment, greatly exceeding the 12-month threshold in s 501(7) for a substantial criminal record for the purposes of s 501(6)(a). Thus, even if, on the counterfactual analysis, reliance on the 2008 convictions is required to be put entirely to one side, that could not have made any difference because the same outcome would inevitably have resulted by reason of the already known and already evaluated post-2009 sentences, leading to the formation of the same suspicion that BRO18 did not pass the character test. The same exercise of the discretion to cancel his visa would inevitably have followed, such that there is no realistic possibility that the overall result would have been different.

33    BRO18’s argument in defence of the primary judge’s decision cannot be accepted, primarily because of its dependence on disregarding altogether the 2008 sentence that the Minister relied upon for suspicion formation, without allowing the post-2009 sentences (or any one of them) to be part of what was considered at the suspicion formation stage. This is a formulation of materiality reasoning that allows only for subtraction, and not reasonable addition. The inquiry is not so narrow. The counterfactual is to be determined by “reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities”: MZAPC at [38]. That analysis is not limited to pencilling out the error and considering what the result would be. Materiality can be absent, for example, where a decision-maker failed to take into account a mandatory consideration if that consideration could not have materially affected the decision that was made: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30]. BRO18’s objection to such counterfactual analysis on the basis that it is speculative must also be rejected. This argument overlooks the fact that a counterfactual analysis necessarily asks the court to speculate on what could have occurred had the error not taken place, but that such an inquiry is anchored in the determined facts.

34    It follows that the Minister’s submissions should be accepted and those for BRO18 rejected. The Minister’s submission as to errors made by the primary judge at J[68] and J[73] concerning the application of counterfactual reasoning to ascertain materiality should also be accepted. On the primary basis that Makasa proscribes consideration of any of the 2008 sentences in the formation of the required suspicion in the re-exercise of the power in s 501(2) only if nothing further was also considered that amounted to a different factual basis for that to take place, it is clear that the post-2009 sentences inevitably would have been considered at that stage, and accordingly the error in confining consideration to the 2008 conviction was not material.

35    Even on the alternative basis that any consideration of any of the 2008 convictions in the suspicion formation stage of the re-exercise of the power in s 501(2) was forever forbidden, the same position is reached. In that event, while BRO18’s position that any consideration of any of the 2008 convictions in the suspicion formation stage of a re-exercise of the power is proscribed, it remains clear that the post-2009 sentences inevitably would have been considered at that stage, and accordingly the error in confining consideration to the 2008 conviction was still not material.

36    Put in positive terms, there is no compelling reason to doubt that had the Minister been aware of the Makasa prohibition on having regard to any of the 2008 sentences on the formation of the suspicion, or on having regard only to the 2008 sentences for that purpose, by reason of them having been deployed for that purpose as part of the 2009 decision, he would have considered the post-2009 sentences in whole or in part in the formation of the suspicion. That would have led inexorably to the conclusion that BRO18 could not possibly pass the character test given his post-2009 aggregate sentences totalled 42 months, being over three times the 12-month threshold. It follows that formation of the suspicion that BRO18 did not pass the character test based on the post-2009 sentences was not just reasonable, but unavoidable and inevitable. BRO18 could not possibly have satisfied the Minister to the contrary. The discretion undoubtedly would have been enlivened. In contrast to the kind of error made by the decision-maker in Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555 as described at [51], there is not a “clear causal link” between the kind of error that occurred and the outcome of the decision. If the error, understood in either way, had not taken place, it could not realistically have produced a different result as to the formation of the suspicion that BRO18 did not pass the character test.

37    When it then came to the second stage and the exercise of the discretion, the result would clearly enough inevitably have been the same: cancellation of BRO18’s visa. That is especially so given the chain of events leading to the 2017 cancellation decision, including notices of intention to consider cancellation which referred to the post-2009 sentences, which were not responded to.

Conclusion

38    The admitted error on the part of the Minister in taking into account the 2008 conviction in the formation of the suspicion in the re-exercise of the visa cancellation power in s 501(2) was not material and therefore did not constitute a jurisdictional error, contrary to the conclusion reached by the primary judge. It follows that the appeal must be allowed with costs, and the relevant orders below set aside.

Associate:

Dated:    8 March 2024