Federal Court of Australia

AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to rely on ground 2 in the notice of appeal.

2.    The appeal be allowed with costs.

3.    Order 1 of the primary judge be set aside and in lieu thereof it be ordered that:

“A writ of certiorari issue quashing the respondent’s decision under s 501A(2) of the Migration Act 1958 (Cth) on 3 October 2023 to set aside the decision of the Administrative Appeals Tribunal dated 19 December 2022 and to refuse the applicant’s Protection (Class XA) visa application.”

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from a judgment (PJ) of a judge of the Court that dismissed the appellant’s application seeking orders for the issue of constitutional writs quashing the decision of the respondent (Minister) of 3 October 2023. By that decision, pursuant to s 501A(2) of the Migration Act 1958 (Cth), the Minister set aside the decision of the Administrative Appeals Tribunal of 19 December 2022 to grant the appellant a protection visa and refused the appellant’s protection visa application.

2    The appeal is on two principal grounds. First, it is said that the primary judge erred in finding that the Minister had not made a jurisdictional error of legal unreasonableness “in relation to indefinite detention when making a decision personally under s 501A” (ground 1). Secondly, it is said that the Minister made the jurisdictional error of failing to act on a correct understanding of the law (ground 2). The latter ground is subject to a grant of leave from this Court as the point was not advanced in the proceeding below. Leave to appeal for this ground should be granted, noting that in circumstances where the two grounds rely on essentially the same error and merely differ in the way in which they characterise it, the Minister quite correctly does not oppose a grant of leave as being expedient and in the interests of justice.

3    For the reasons given below, the appeal should succeed on ground 2 – noting again that that ground was not advanced before the primary judge. In view of the conclusion on ground 2, it is not necessary to consider ground 1.

Background

4    The appellant is a national of Sierra Leone who, following his arrival in Australia on a humanitarian visa in 2009, was convicted in 2015 of serious offences committed against his then partner. He was sentenced to 10 years imprisonment with a non-parole period of five years. As a result, his visa was cancelled on character grounds in 2017.

5    In 2019, the appellant applied for a protection visa, which was refused by a delegate of the Minister. That decision was set aside by the Tribunal in November 2019 and remitted to the delegate on the basis that the appellant is a person in relation to whom Australia owes non-refoulement obligations on account of the harm that he is likely to suffer if removed to Sierra Leone.

6    In September 2022, the delegate again refused the protection visa application, this time on character grounds based on his 2015 convictions.

7    In December 2022, the Tribunal set aside that refusal decision and substituted a decision that the appellant should not be refused a protection visa on character grounds. As we have said, on 3 October 2023 the Minister decided to set that Tribunal decision aside under s 501A(2) and to refuse the protection visa application. That decision was the subject of the application for judicial review before the primary judge and is the subject of the appeal.

8    It was common ground that success on the review required the establishment of jurisdictional error.

9    Section 501A(2) of the Act relevantly provides:

(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.

10    The case turns on the last element, ie the Minister’s state of satisfaction as to it being in the national interest to set aside the decision of the Tribunal and refuse the appellant a protection visa.

Appeal ground 2 and the notice of contention

11    Ground 2 of the notice of appeal alleges:

Subject to a grant of leave by this Honourable Full Court, the Respondent (Minister) made the jurisdictional error of failing to act on a correct understanding of the law.

Particulars

a.    On 3 October 2023, the Minister set aside the Tribunal’s decision under s 501A(2) of the Act and refused the Appellant a protection visa;

b.    The Minister, in addition to having express regard to indefinite detention in favour of the Appellant, had implied regard to indefinite detention as the basis for matters weighing against the Appellant, being the protection of the Australian community, family violence and the expectations of the community;

c.    As the primary judge recognised, indefinite detention was therefore of critical or material importance to the Minister’s decision against the Appellant;

d.    The Minister may commit a jurisdictional error by failing to act on a correct understanding of the law on a point of sufficient significance to the ultimate decision, even if the error of law is established by a subsequent judicial decision operating retrospectively: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 64; 285 FCR 667;

e.    Such an error arose in the present case due to the Minister’s reliance on the lawfulness of the Appellant’s indefinite detention displaced by the later decision of the High Court in NZYQ v Minister for Immigration [2023] HCA 37; 97 ALJR 1005.

12    In substance, ground 2 asserts that the Minister made a jurisdictional error of law in making his decision on the basis of the law as it was then understood to be as proclaimed by the High Court of Australia in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 whereas the law, as later proclaimed with retrospective effect in NZYQ v Minister for Immigration [2023] HCA 37; 415 ALR 254, was different. It is said that the Minister’s erroneous understanding of the law was that if the appellant’s protection visa application was refused and the appellant was granted no other visa, the appellant would remain in immigration detention until he could be removed to another country, if and when that occurred.

13    The Minister relies on a notice of contention in respect of both the legal unreasonableness ground (ground 1) and the error of law ground (ground 2). The Minister’s first contention is that there was no error of law because:

a.    where an unlawful non-citizen is detained for the purpose of removal, ss 189 and 196 of the Act apply unless and until, as a matter of constitutional fact, there is no real prospect of removal becoming practicable in the reasonably foreseeable future;

b.     at the time of the Minister’s decision, the Appellant was not being detained for the purpose of his removal; rather, he was being detained for the purpose of considering and determining his application for a protection visa;

c.     further, there was no finding made by the Minister, nor did the evidence before the Minister compel the conclusion, that there was no real prospect of the removal of the Appellant becoming practicable in the reasonably foreseeable future: Judgment, [47]; see HSCK v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 313, [34];

d.     further, neither the non-application of ss 189 and 196 of the Act to the Appellant, nor the release of the Appellant from immigration detention, were inevitable or certain legal consequences of the Minister’s exercise of power under s 501A(2) of the Act: see TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451, [46]-[47], [54]-[55]; and

e.     further, the Minister was not required, when deciding whether to exercise his power under s 501A(2) of the Act, to consider future contingencies that might arise in the future in the event that the Minister exercised the power: BNGP v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 609; [2023] FCAFC 111 at [101], [138].

14    As will be seen when each of these points is discussed further below, it may be that some of them were intended to be directed to ground 1 rather than ground 2. In that regard, it is as well to bear in mind that the “legal” part of the label “legal unreasonableness” that is the subject of ground 1 does not connote anything about “legal error” in the sense of an error of law; rather, the label “legal” serves to emphasise that the review ground of “legal unreasonableness” has a meaning and content quite different from “unreasonableness” in any lay sense of that word. The Minister’s submissions seemed at times to conflate legal unreasonableness and legal error.

15    The Minister’s second contention is that if the decision involved an error of law, that error was not material, and therefore did not rise to the level of jurisdictional error.

The Minister’s reasons

16    The primary judge’s summary of the reasons given by the Minister for his decision to set aside the decision of the Tribunal and refuse the appellant a protection visa on national interest grounds was not challenged on appeal. It is convenient to adopt it in the following paragraphs.

17    It was not in contest that the appellant did not pass the character test, by reason of his conviction in 2015.

18    In considering whether refusal of the visa was in the national interest, the Minister had regard to the considerations identified in Direction No 99, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which was made under s 499 of the Act and came into effect on 3 March 2023, even though the Minister was not bound to comply with that direction. Accordingly, the Minister treated the prevention of domestic and family violence, the protection of the community and the expectations of the Australian community as aspects of the national interest (at [20] of the statement of reasons). Each of these factors was found to have “significant weight” or to “weigh[] heavily” in favour of refusing to grant the visa (at [120], [98] and [127] respectively).

19    The Minister also had regard to what he termed the “legal consequences of the decision”, including the existence of non-refoulement obligations. The Minister did not expressly adopt the reasoning in the 2019 Tribunal decision, but had regard to it and accepted that the appellant was a person in respect of whom Australia has non-refoulement obligations (at [132]) which apply in relation to his potential removal to Sierra Leone.

20    Having concluded that the refusal of the visa was in the national interest (at [145]), the Minister turned to “other considerations”. Among these was the “[l]egal consequences of a decision to refuse a visa application”. The Minister said:

184.    I am aware that the legal consequences of a decision to refuse [the appellant]’s visa application are that, as an unlawful non-citizen, he must be detained in accordance with s189 and s196 of the Act, until removed from Australia or granted a visa.

185.    I am aware that, as a result of a refusal decision under s501A, there will be significant restrictions on [the appellant]’s ability to apply for another visa. In particular, I understand that [the appellant] will be prevented by s48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s48B, that s48A of the Act does not apply to him). An application for a visa other than a protection visa would be subject to s501E of the Act, which will apply to [the appellant] as a result of my refusal decision under s501A. This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation.

186.    Further, by reason of the protection finding made in the course of considering his protection visa application, s198 will not require or authorise him to be removed to Sierra Leone, except in certain limited circumstances which are not presently relevant (s197C(3)). I acknowledge that the prospects of finding another country willing to receive him are poor.

187.    As a result, I am aware that [the appellant] faces the prospect of immigration detention for an indefinite period. In particular, I am mindful that if I decide to refuse [the appellant]’s visa, he will, as an unlawful non-citizen, remain in held detention unless and until he can be removed to a country other than Sierra Leone (unless one of the exceptions in s197C(3)(c) were to apply), or unless the Minister were to intervene to grant [the appellant] a visa under s195A or to make a residence determination under s197AB in his favour.

21    The appellant had made representations concerning the effect of indefinite detention on his mental health. The Minister accepted that indefinite detention was likely to have an “adverse impact” on him and that this weighed in favour of not setting aside the Tribunal decision and refusing the visa application (at [196]).

22    In reaching his conclusion on the exercise of the discretion in s 501A(2), the Minister referred again to Australia’s international non-refoulement obligations and to the unlikelihood of those obligations being breached by removal of the appellant to Sierra Leone (because those obligations meant he would not be so removed). The Minister went on:

200.    … Nevertheless, the fact that his removal to Sierra Leone is neither required nor authorised at present does mean [the appellant] might remain in immigration detention indefinitely. I found that this weighs against a decision to refuse.

23    Ultimately, the Minister found that the “national interest considerations” referred to above outweighed the considerations favouring not setting aside the Tribunal decision (at [210]).

Consideration

Introduction

24    As mentioned, it is common ground that in order for the appellant to succeed in his claim for judicial review relief under s 75(v) of the Constitution, in the light of s 474 of the Act he must establish jurisdictional error in the decision by the Minister. In this context, jurisdictional error refers to “breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [2] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J agreeing (at [38]).

25    The error alleged by ground 2 is failing to act on a correct understanding of the law.

26    Where, as under s 501A(2)(e) of the Act, a state of “satisfaction” is required to found a valid exercise of the power, that “is a state of mind which must be formed reasonably and on a correct understanding of the law” (emphasis added): Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [33] per Gageler and Keane JJ.

27    That a decision-maker must proceed by reference to correct legal principles, correctly applied is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority; the statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29] per Kiefel CJ, Gageler and Keane JJ.

28    The Minister accepted that the power to set aside a decision of the Tribunal provided for in s 501A(2) of the Act is conditioned in that manner (T15:30-45), ie the Minister must exercise the power by reference to correct legal principle, correctly applied. Having regard to Wei at [33], that means that the state of satisfaction required of the Minister by s 501A(2)(e) must be formed on a correct understanding of the law. In Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57], Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ explained that the state of satisfaction as to the national interest required by s 501(3) was required to be established “according to law”. There is no reason why satisfaction as to the national interest in s 501A(2) would not be subject to that same condition.

29    Where, as here, the jurisdictional error in question incorporates a requirement of materiality, there are two questions: “has an error occurred; and, if so, was that error material”: LPDT at [9]. It is convenient to take those questions in turn.

Was there an error of law?

30    It is apparent that in his process of reasoning, the Minister understood the law to be that, by the operation of ss 189 and 196 of the Act, if the appellant was refused a protection visa and was not granted another visa he would remain in immigration detention until such time, if it arose, that he could be removed to another country. On the appeal, it was rightly accepted on behalf of the Minister that underlying his reasoning was an understanding of the law based on Al-Kateb that if the appellant’s visa was refused he would be detained until he was removed to another country (T18:44-T19:11). Although unknown, and unknowable, to the Minister at that time, that was an erroneous understanding of the law because (just over a month after the Minister’s decision) Al-Kateb was re-opened and overruled in NZYQ.

31    The High Court pronounced its orders in NZYQ on 8 November 2023 and published its reasons on 28 November 2023. The construction of s 196 adopted by the majority in Al-Kateb was held to be correct, but subject to s 3A of the Act, ie the Act is not to apply so as to exceed Commonwealth power. Detention of a non-citizen by the executive in circumstances where no visa application was on foot, and there was no real prospect of removing the non-citizen in the reasonably foreseeable future, was held to be inconsistent with Ch III of the Constitution and s 196 was to be read down accordingly (see NZYQ at [9]).

32    As the primary judge explained, NZYQ did not change the law; “[p]rospective overruling of authority is antithetical to basic concepts of the judicial power and thus heretical in Australia: Ha v New South Wales [1997] HCA 34; 189 CLR 465 at 503-504 (Brennan CJ, McHugh, Gummow and Kirby JJ)” (at PJ [21]). The constitutional principles elaborated in NZYQ must therefore be understood to have applied at the time of the Minister’s decision.

33    In making his decision, the Minister was required to take into account the Act and its operation; he was required to take account of the legal consequences of his decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [9]-[10] per Allsop CJ and Katzmann J. See also Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] and [88] per Kenny, Flick and Griffiths JJ in respect of the requirement that the Minister consider the “direct and immediate statutory consequences” of the decision.

34    Such a consideration inevitably required the Minister to act on a correct understanding of the Act, including its constitutional limitations. Because of the obligation of non-refoulement of the appellant, the poor prospects of his removal to a third country and the terms of the Act, at the time of the Minister’s decision in this case he understood the legal consequences of the Act included “indefinite detention”, but that was wrong. That was an erroneous conclusion as to the consequences of the decision because of an erroneous understanding of the Act and its operation. That is an error of law.

35    Turning to contention 1 in the notice of contention, the first point sought to be made by the Minister is that where an unlawful non-citizen is detained for the purpose of removal, ss 189 and 196 of the Act apply unless and until, as a matter of constitutional fact, there is no real prospect of removal becoming practical in the reasonably foreseeable future. That much may be accepted, but it is no answer to the alleged error. The Minister, quite rightly, considered what the legal consequences of a visa refusal decision would be for the appellant. In doing so, he formed the view, in essence, that in the event the protection visa was refused the prospects of anything other than “indefinite detention” for the appellant were poor. That view was based on a particular understanding of the Act, which is now known to be wrong.

36    The Minister’s second point is that at the time of his decision, the appellant was not being detained for the purpose of his removal; rather, he was being detained for the purpose of considering and determining his application for a protection visa. Again, that much may be accepted, but it is no answer to the alleged error. The Minister was considering the consequences of a decision to refuse the appellant a protection visa, which would, immediately on the decision being made, put the appellant into the position of being detained for the purpose of his removal. The fact that prior to such a decision he was not being detained for that purpose is not to the point.

37    The Minister’s third point refers to HSCK v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 313 in which Button J, in circumstances similar to the present, rejected the contention that the Tribunal’s decision not to grant the applicant a protection visa “was affected by jurisdictional error, in that the Tribunal’s conclusion that the continuing indefinite detention of the applicant was justified by the protection of the Australian community was not open to the Tribunal, as it was contrary to the decision of the High Court in [NZYQ]” (at [8], [31] and [37]).

38    However, in that case the error was not put as an error of law, but rather as an error of factual conclusion based on the law. Presumably for that reason, the judgment records the applicant’s case as depending on making good the proposition that various concessions made by the Minister with regard to obligations of non-refoulement and poor prospects of removal were sufficient to bring the case within the constitutional limitation explained in NZYQ (at [26]). The applicant was unable to establish that on the facts. That inquiry does not arise on the way in which the appellant puts his argument in the present case.

39    More specifically, the Minister’s notice of contention refers to HSCK at [34]. In that paragraph, Button J was explaining the factual differences between the case before her and NZYQ. In particular, her Honour observed that in the case before her “the occasion had not yet arrived to make enquiries and see whether [the applicant] could be removed to a third country, or what timeframes would be involved.” Again, that much may be accepted, but it is no answer to the alleged error in this case. It is perhaps a point relevant to materiality, to which we will come, but it says little about whether the Minister made his decision on an incorrect understanding of the law.

40    The Minister’s fourth point refers to TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451 in which Wheelahan J, also in circumstances similar to the present case, rejected the contention, with reference to NZYQ, that “[t]he Tribunal erred in not correctly interpreting or applying the law in that it did not understand and apply the principle that indefinite detention is unlawful” (at [79] and [81]). As with HSCK, the error of law was characterised differently in TCXM to how it is put in the present case. His Honour’s reasons for rejecting the argument, recorded at [81], are inapplicable to the present case.

41    The particular paragraphs of the judgment in TCXM to which the Minister refers in the notice of contention, namely [46]-[47] and [54]-[55], are not addressed to a ground alleging that the Tribunal acted upon an incorrect understanding of the law. They deal with, respectively, a legal unreasonableness ground and a ground based on the Tribunal’s alleged failure to consider a relevant consideration, namely that indefinite detention is unlawful. Nothing that is said in those paragraphs detracts from our conclusion in the present case that the Minister made his decision upon an incorrect understanding of the law.

42    The Minister’s fifth point is that he was not required to consider “future contingencies that might arise in the future.” He refers to BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; 298 FCR 609 at [101] and [138]. Once again, the point addressed there was with regard to legal unreasonableness and not a ground alleging that the decision-maker acted upon an erroneous understanding of the law. There is nothing said there that detracts from our conclusion that in the circumstances of the present case the Minister did so.

43    In view of the conclusion that the Minister’s reasons proceeded on an erroneous understanding of the law, his decision was made outside the jurisdiction conferred on him by s 501A(2), provided that the error was material in the relevant sense.

44    The appellant was not, however, content to leave matters there and submitted that at the error (as opposed to materiality) stage of the inquiry it is necessary to establish that the Minister failed to act on a correct understanding of the law “on a point of sufficient significance to the ultimate decision”, citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63; 285 FCR 667 in that regard. For the same reasons given below in relation to materiality, we are satisfied that the error was on a point of real significance to the ultimate decision. It is therefore unnecessary to enter upon the point of debate raised by the appellant.

45    That said, we observe that the Court in CBW20 did not separately consider the requirement of materiality. Its findings that the errors “were fundamental to” and were in respect of an issue that “underpinned” the decision (at [57]), that the errors were “serious[]” and had a “close connection” to the decision, and that they “played an important role” in the decision (at [59]), can be best understood as amounting to a finding that the errors were material in the requisite sense.

Was the error material?

46    The most recent decision of the High Court on materiality, which naturally draws on the Court’s previous decisions, is LPDT. The following principles can be drawn from it:

(1)    The materiality inquiry is wholly backward-looking. It is to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on a balance of probabilities. Proof of these facts ought to be neither difficult nor contentious. (At [10].)

(2)    The question is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Although the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. (At [14].)

(3)    What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. (At [15].)

(4)    “In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion)”: at [16].

47    The primary judge dealt with the question of materiality even though on the view his Honour took of the review ground before him (being the subject of ground 1 on the appeal) it was not strictly necessary to do so (PJ [45]). His Honour concluded that the alleged error, had it been established, was material. Noting that the error alleged in ground 1 is essentially the same error as that in ground 2 save that under ground 1 it was analysed with respect to the requirement of legal reasonableness, for the reasons his Honour gave we agree with that conclusion.

48    As the primary judge found, although it cannot be assumed that, properly instructed as to the law, the Minister would have concluded that ongoing detention of the appellant was impossible and made his decision on that basis, the matters recorded in the reasons were sufficient to indicate that, on a proper understanding of the law, the power to keep the appellant in detention was very doubtful and likely to remain so (PJ [47]). It would be a mistake to assume that the Minister would necessarily have approached factors such as “the protection of the Australian community” by simply considering which of two available options (refuse the visa or allow it to be granted) was more likely to protect the community against the risk of further offending by the appellant; a possible view of the matter was that setting aside a decision of the Tribunal was not justified if taking that step would have only marginal or doubtful utility in protecting the community against that risk (PJ [49]).

49    The short point is that the identified error, namely that on refusal of his visa application the appellant would remain in immigration detention until removed to another country, was centrally relevant to several aspects of the Minister’s reasoning. Those are the need to protect the Australian community (at [98]), the national interest in relation to the prevention of domestic and family violence (at [120]), the expectations of the Australian community that a non-citizen such as the appellant not be allowed into the community (at [127]) and the legal consequences of the decision, ie that the appellant would possibly face indefinite detention which would be harmful to him (at [186]-[188], [200]). Consideration of each of those matters was premised on the erroneous understanding that a refusal decision would have the result that the appellant would not be released from immigration detention into the community; he would remain in detention until he could be removed from Australia. As was submitted on the appellant’s behalf, the reasons were “imbued” with the error. It might also be said that they were infused with the error.

50    The Minister submits that the decision could not realistically have been any different if the error had not been made because of two considerations. One is that the error was in the appellant’s favour, ie the prospect of “indefinite detention” and the harm that that would cause him weighed against setting aside the Tribunal decision and refusing the visa application. Thus, it was said, if the error had not been made there would have been an even greater balance of factors against the appellant and in favour of the refusal of the visa. The other consideration is that the Minister was clearly concerned to keep the appellant out of the community, which means that it cannot be concluded that there is any realistic possibility that he would have allowed the visa to be granted rather than have the appellant subject to a period of detention and then possibly released when the constitutional limit on continued detention was reached, on some conditional basis.

51    We are not persuaded by those submissions. A multifactorial evaluative decision such as that of the Minister cannot be analysed as a simple balancing exercise; “[a] task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments”: CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28] per Colvin, Stewart and Jackson JJ, and see also [27] and [34]-[35]. Once an important underpinning of the decision in relation to several elements is fundamentally altered, it is simply not possible to have confidence in what the outcome would have been; it cannot “be affirmatively concluded that the outcome would inevitably have been the same had the error not been made”: LPDT at [16].

52    That equivocation as to the outcome on the counterfactual is all the more so when one takes into consideration that the Minister’s reasons recognised that the appellant could not be removed to Sierra Leone and that there were “poor” prospects of finding another country willing to receive him. It is not known what the Minister, or his Department, actually knew about those prospects beyond his assessment that they were “poor”. One can nevertheless infer that there was some knowledge underlying that assessment, and that it was not mere conjecture.

53    That inference is confirmed by the Minister’s decision to release the appellant from immigration detention shortly after judgment in NZYQ was delivered on the basis of an assessment that his case met the NZYQ threshold (PJ [24]). Although that fact came after the decision under review and in the “backward-looking” materiality inquiry cannot be used to assess the relevant counterfactual, it serves to foreclose any submission on behalf of the Minister that he may have known nothing about what the prospects of the removal of the appellant were because no inquiries of other countries had yet been made. As the primary judge found, “[i]t is obvious from the circumstances recorded in the Minister’s statement of reasons that analysis with foresight of the reasoning in NZYQ would have revealed a real likelihood of the applicant being released from detention.”

54    Perhaps the Minister, knowing the true state of the law, would have recognised that the appellant would have to be released from immigration detention relatively soon after his visa was refused because at that point there would be “no real prospect of … removal from Australia becoming practicable in the reasonably foreseeable future” (NZYQ at [9]). If that was the case, the Minister might have decided that the benefits for the national interest of a decision to set aside the Tribunal decision were marginal and it was better to let the Tribunal decision stand rather than risk a later claim for damages for unlawful imprisonment. These matters are all speculation. The point is that one just does not know what the Minister might have done once a key underpinning of the decision is fundamentally altered.

55    The Minister also refers to YQLH v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 293 at [43] where Stewart J found that any error of law in relation to the change in the law from Al-Kateb to NZYQ would not have been material because the error was in the applicant’s favour; so, had it not been made his position in relation to the decision could not have been any better. That is self-evidently a finding of fact based on the facts of that case, which are quite different from the facts of the present case. Notably, the Tribunal’s reasons in that case, as summarised in his Honour’s judgment (at [6]-[18]), did not take into account the prospects of indefinite detention other than in relation to the legal consequences of a decision against the applicant. The Minister’s reasons in the present case are a far cry from that.

56    For those reasons, the Minister’s erroneous understanding of the law was outside the jurisdiction conferred on him by the statutory provision; it was a jurisdictional error. The appeal should therefore be allowed and the decision of the Minister set aside.

57    Given that the Minister, by s 501A(6), does not have a duty to consider whether to exercise the power under subs (2) in respect of the Tribunal’s decision, there is no basis to remit the matter to the Minister for reconsideration. It is a matter for him (now a different Minister), subject to any constraints the law may impose, whether or not to reconsider it.

Costs

58    The appellant submits that he should have his costs of the appeal and of the proceeding at first instance. The Minister resists a reversal of the costs order at first instance on the basis that the point that has been successful in the appeal was not run before the primary judge.

59    In the exercise of the Court’s broad discretion in relation to costs, we accept the Minister’s submission. That is what fairness requires.

Disposition

60    In the result, we make the following orders:

1.    The appellant be granted leave to rely on ground 2 in the notice of appeal.

2.    The appeal be allowed with costs.

3.    Order 1 of the primary judge be set aside and in lieu thereof it be ordered that:

“A writ of certiorari issue quashing the respondent’s decision under s 501A(2) of the Migration Act 1958 (Cth) on 3 October 2023 to set aside the decision of the Administrative Appeals Tribunal dated 19 December 2022 and to refuse the applicant’s Protection (Class XA) visa application.”

Associate:

Dated:    20 August 2024