FEDERAL COURT OF AUSTRALIA

Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288

THE COURT ORDERS THAT:

1.    A writ of certiorari issue directed to the Respondent to quash the decision of the Respondent made on 18 July 2011 to set aside the decision of the Administrative Appeals Tribunal not to cancel the Applicant’s Class XB Subclass 200 Refugee and Humanitarian visa and to cancel that visa.

2.    The Respondent pay the Applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1    The applicant is a Liberian citizen who arrived in Australia in 2006, and was subsequently granted a Class XB Subclass 200 Refugee and Humanitarian visa (“the applicant’s visa”). He is not an Australian citizen and in the absence of a valid visa, the applicant faces deportation from Australia. To avoid being deported, the applicant has brought this application which seeks to have the Court quash a decision made by the Respondent (“the Minister”) on 18 July 2011 to set aside a decision of the Administrative Appeals Tribunal (“the AAT”) and to cancel the applicant’s visa (“the decision”).

2    In 2008, the applicant was convicted in the Adelaide District Court of one count of rape and two counts of unlawful sexual intercourse with a person under 14. The applicant successfully appealed the rape conviction in the Court of Criminal Appeal of the South Australian Supreme Court. He was subsequently re-sentenced to 27 months in prison.

3    At the time the offences occurred, the applicant was 40 years old. The child who was his victim was a 12 year old girl.

4    Prior to the applicant’s release from prison on 3 February 2011, a delegate of the Minister cancelled the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (“the Migration Act”). Section 501(2) empowers the Minister to cancel the visa of a non-citizen if the Minister is not satisfied that the person passes the character test defined by s 501(6).

5    The applicant successfully applied to the AAT for review of the decision by the delegate of the Minister. On 21 April 2011, the AAT set aside the delegate’s decision to cancel the applicant’s visa.

6    Utilizing a power personally and exclusively conferred upon the Minister by s 501A(2) of the Migration Act, the Minister set aside the decision of the AAT and cancelled the applicant’s visa.

7    Mr Gbojueh then applied to this Court. By his Further Amended Application he seeks a writ of prohibition or an injunction to restrain the Minister from acting on the decision or from accepting it as of lawful effect; a writ of certiorari quashing the decision; and an order that the decision be quashed.

8    The Court is conferred jurisdiction by s 476A(1)(c) of the Migration Act to determine the application. Although a question was initially raised as to whether the applicant’s application was filed late, an application for an extension of time was not pressed because the Minister accepted that it was unnecessary.

9    Not all of the grounds in the applicant’s Further Amended Application were pressed during the hearing. Grounds 2(a), 3(a), 3(b), 4(a), and 4(b) of the Further Amended Application were not argued and thus abandoned by the applicant.

10    I have, for the reasons which follow, dismissed or refused relief in relation to all but one of the grounds agitated for by the applicant. I am persuaded that the Minister was required by the Migration Act to accord the applicant natural justice but failed to do so. That failure concerned the Minister failing to give the applicant notice of, and thus an opportunity to respond to, serious and highly prejudicial allegations made against him. By reason of the injustice demonstrated, the Minister’s decision will be quashed with a result that, if the Minister chooses to do so, the Minister will need to reconsider whether he should set aside the decision of the AAT and cancel the applicant’s visa.

the relevant legislative provisions

11    The decision under challenge was made by the Minister under s 501A(2) of the Migration Act. Section 501A of the Migration Act is in the following terms:

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).

(4A)      Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister's exercise of power

(5)      The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)      The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)  A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

DID the Minister pre-judge his discretion?

12    The applicant contended that the Minister “reversed” the operation of s 501A(2) of the Migration Act by adopting a two stage process whereby the Minister:

    first considered the question raised by s 501A(2)(e) of whether the cancellation of the applicant’s visa was in the national interest; and

    thereafter considered the exercise of his discretion as to whether or not to cancel the applicant’s visa.

13    The applicant contended that the process adopted led to the Minister pre-judging his discretion and thus constituted jurisdictional error because in doing so, the Minister misconstrued the operation of s 501A(2). The applicant contended that all the surrounding circumstances relevant to the exercise of discretion were also relevant to the question of national interest, and that, by considering those circumstances and determining them in relation to the national interest, the Minister had “pre-judged” his exercise of discretion. The applicant submitted that the Minister should have undertaken a one stage process, by considering the question of national interest together with the exercise of the Minister’s residual discretion. It was contended that by adopting a two stage process, once the Minister determined that cancellation was in the national interest, the exercise of the discretion could only result in cancellation of the visa.

14    The drafting of s 501A(2) utilises a well recognised format, requiring the satisfaction of prerequisite conditions (set out in ss 501A(2)(c), (d) and (e)) before the residual discretion is enlivened. One of the preconditions to the exercise of the discretion is the Minister’s satisfaction that the cancellation of a visa is in the national interest. The availability of the Minister’s discretionary power to set aside the original decision and to refuse to grant a visa or cancel a visa that has already been granted, is only enlivened when the Minister is satisfied of each of the preconditions to the exercise of the power. The question whether the discretion should be exercised does not arise until the Minister is satisfied that each of the preconditions are met, including that cancellation would be in the national interest. Decision-making in accordance with the structure of the section requires the Minister to consider the national interest precondition before considering the exercise of the residual discretion. A two step process is necessarily required of the Minister.

15    In a two step process as required by s 501A(2), there are many considerations that may overlap because they are relevant to both the satisfaction of a prerequisite for the exercise of the power and also as to how the residual discretion should be exercised. If the Minister is bound to take such considerations into account, he will need to do so in relation to both his satisfaction as to the prerequisites for the exercise of the power and also as to the residual discretion. There is nothing unusual about that in relation to the exercise of a power like that conferred by s 501A(2). Not all of the considerations the Minister might take into account will necessarily overlap. There are many considerations personal to the holder of a visa which may be of little or no relevance to the question of the national interest. Furthermore, even if all relevant considerations overlapped, there is abundant scope for different weight to be accorded to the same consideration when first considered in relation to the national interest and later considered in relation to the residual discretion. The two step process does not involve a pre-judgment of the Minister’s discretion.

16    The applicant’s contention that the Minister misconstrued the operation of s 501A(2) is misconceived and provides no basis for any finding that the Minister erred.

Relevant considerations

17    Whilst the applicant’s grounds are somewhat ambiguous, all but two of the grounds relied upon by the applicant (grounds 2(b), 3(aa), 5(a), 5(b) and 5(c)) were essentially pressed on the basis that the Minister failed to take into account relevant considerations in arriving at the decision. Those grounds raise for determination disputed contentions as to what the Minister did or failed to do and whether what was done or not done can constitute jurisdictional error. I will first consider whether the applicant’s allegations that the Minister erred are sustained and then consider whether any such errors are jurisdictional errors and, if so, whether the relief sought by the applicant should be granted.

Failure to take into account actual criminal conduct

18    The applicant contended that the Minister erred in his understanding of the criminal conduct for which the applicant was convicted. The applicant was convicted of the offence created by s 49 of the Criminal Law Consolidated Act 1935 (SA) of unlawful sexual intercourse with a person under 14. The applicant contended the decision was made on the misunderstanding that the offences involved the applicant sexually abusing a child “in his care” and that this misunderstanding by the Minister involved an error as to the particular criminal offences for which the applicant was convicted and the actual conduct in question.

19    In essence, the applicant contended that the Minister failed to take into account the applicant’s actual criminal conduct, and instead, took into account an erroneous understanding of that conduct.

20    The Minister contended that this complaint was without substance. The Minister relied upon the fact that, when he made the decision, he had before him the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia, which contained the trial judge’s summary of the evidence of both the child and the applicant. The versions of events there given describe that on the two occasions on which the offences occurred, the applicant was alone in a house with the child. On the first occasion, his house, and on the second occasion, her house. The Minister also points to his awareness, at the time of the decision, that the applicant had a relationship with the child’s mother. It was contended that in those circumstances it was reasonable for the Minister to describe the child, who was then just 12 years old, as in the applicant’s “care” when the offences occurred. The Minister further contended that there was no basis for any submission that the Minister erred in his understanding of the actual offences for which the applicant was convicted.

21     In his Statement of Reasons for the decision (“the Statement of Reasons”) at [6], the Minister said:

I took into account that MR GBOJUEH’S offences above, are of a particularly serious nature, in that they involved him sexually abusing a minor child in his care.

22    The Minister’s observation that the applicant’s offences involved him sexually abusing a minor in his care seems to be based squarely upon what the Minister was told by the submission provided to the Minister by the Department of Immigration and Citizenship (“the Department”) for the purpose of the Minister making the decision (“the Issues Paper”). On two occasions, the Issues Paper referred to the serious or abhorrent nature of the applicant’s offences by stating that the victim was a child in the applicant’s care. Neither the sentencing comments of the District Court nor the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia described the applicant’s offences in those terms.

23    I accept that at the time of the decision and by reason of the material before him, the Minister was aware that the victim was the 12 year old daughter of a woman with whom the applicant was in a relationship over the period in which the offences occurred. That is what the Minister was told by the Issues Paper. The characterisation in the Issues Paper that the child was in the applicant’s “care”, which I would infer was adopted by the Minister, does not suggest a formal care relationship such as that of a guardian or other person with legal responsibility over the child. However, the words utilised by the Minister in the passage which I have reproduced do not sit comfortably with the Minister’s contention that they merely reflect an understanding that the applicant was the only adult in the presence of the child at the time of each offence. The words utilised suggest not only a relationship of responsibility and care, but an ongoing relationship of that kind over the period of the offending. At the very least the passage suggests that the child was placed in the applicant’s charge at the time of the offending. None of those suggestions have an evidentiary basis. Instead, they seem to be based upon the misleading characterisation made by the Issues Paper and adopted by the Minister.

24     I accept, for those reasons, that a misleading impression was held by the Minister as to the circumstances in which the applicant’s offending occurred. I will later deal with whether that misconception can constitute jurisdictional error.

25    I do not accept the applicant’s contention that the Minister misunderstood the particular offences for which the applicant had been convicted. The offences are accurately identified in the Minister’s Statement of Reasons as “two counts of Have Sexual Intercourse With A Person Under 14 Years”. There is no basis for believing that the Minister acted on the basis that an element of the offences for which the applicant was convicted was that he was a carer of the victim. The applicant was unable to point to the existence of any offence involving care as an element of the offence that, it may reasonably be inferred, the Minister may have confused with the offences for which the applicant was actually convicted.

Failure to Take into Account the Findings of the Criminal Justice System

26     In the Adelaide District Court, the applicant was convicted on one count of rape but acquitted of a second count of rape. A further complaint made by the applicant about the “confusion” created by the Issues Paper is that the Issues Paper erroneously advised the Minister that the applicant’s conviction of rape was overturned on appeal “for technical reasons”. In fact the South Australian Court of Criminal Appeal, by majority, overturned the rape conviction because the jury’s guilty verdict was considered unsafe and unsatisfactory. The majority was of the view that having regard to the similarity of the competing evidence on the question of consent in relation to the two charges of rape, no reasonable jury could have arrived at a verdict of guilty on one of the charges and a verdict of not guilty on the other.

27    Whilst I accept that the phrase “technical reasons” was inappropriate, the phrase was not used in isolation in the Issues Paper but was immediately followed by an explanation consistent with the basis upon which the applicant’s conviction for rape was overturned. There is no suggestion in the Statement of Reasons that the Minister considered the acquittal as merely technical or procedural rather than substantive. I reject the applicant’s contention that the Minister failed in this respect, to take into account “the findings of the criminal justice system”.

28     A further and related basis upon which the applicant contended for such a failure, was the alleged refusal of the Minister to accept that the intercourse with the child was not without her consent. The applicant contended that the fact that the intercourse was consensual, was a finding of the criminal justice system and that the Minister’s refusal to accept it, is found in the Minister’s observations that the applicant had “maintained that the intercourse between him and his underaged victim was consensual and that she initiated the encounters”. That conduct was characterised by the Minister as the applicant’s “continued denial of responsibility in relation to the sexual assaults against a minor”.

29     In my view, each of those contentions must fail. Firstly, there is no basis for the assertion that the criminal courts made a finding that the sexual conduct in question was not without consent. The applicant’s acquittal on the rape charges established no more than that the prosecution had failed to prove beyond a reasonable doubt that the intercourse occurred without consent. No affirmative finding of the kind relied upon by the applicant was made.

30     Secondly, and in any event, the Minister’s observations appear to be squarely founded upon the observations made at [22] and [37] of the Issues Paper. Those observations relate to the risk of recidivism and the prospects for the applicant’s rehabilitation in the context of a record of a conversation which occurred with the applicant in August 2009. The Issues Paper observed that in that conversation, the applicant “continued to state that the intercourse between him and his 12 year old victim was consensual and that she had initiated the encounters”. The Issues Paper characterised that attitude as a “continued denial of responsibility” by the applicant.

31     It is completely unsurprising that both the Issues Paper and the Minister were concerned with the fact that long after the events in question and nearly a year after his convictions, the applicant was still placing at least partial responsibility for what occurred on a 12 year old child. The observations about the applicant’s denial of responsibility and the basis for it were open to be made by the Minister, irrespective of what the criminal justice system had found in relation to the allegations of rape.

Failure to Take into Account Participation in Rehabilitation

32    The applicant also relied upon the Minister failing to take into account the applicant’s participation in a rehabilitation program. The Minister now accepts that in fact the applicant did participate in a rehabilitation program after his release into the community and that his understanding, at the time of the decision and as set out in the Statement of Reasons, is factually inaccurate.

33     Additionally, the applicant also relies upon a criticism at [15] of the Statement of Reasons. That paragraph suggests that the Minister was dissatisfied that the applicant had failed to explain why he had been prevented from participating in rehabilitation after his parole was concluded. The applicant points to and relies upon the fact that the Minister failed to take into account the explanation given in the applicant’s evidence to the AAT (which was before the Minister), which explained that it was the applicant’s detention under the Migration Act which precluded the applicant’s participation in further rehabilitation.

34    I accept that in relation to the applicant’s rehabilitation, the Minister was wrong to conclude that there was no evidence that the applicant had participated in a rehabilitation program and secondly, was wrong to criticise the applicant in the manner just referred to.

35    I have accepted error by the Minister in relation to the Minister’s characterisation of the circumstances in which the applicant’s offending occurred and also as to the applicant’s participation in rehabilitation. I now turn to consider whether such errors were jurisdictional errors.

Jurisdictional Error – Legal Principles

36    The ground of failure to take into account a relevant consideration can only be established where the decision-maker has failed to take into account a consideration which the decision-maker was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Mason J) at 39. In other words, the consideration not taken into account must be mandatory rather than merely permissive. The considerations which a decision-maker is bound to take into account may be identified expressly by the legislation which has authorised the decision or may be implied from the subject-matter, scope and purpose of the Act conferring the power: Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 at [71] (Kiefel and Bennett JJ) citing Mason J in Peko-Wallsend at 39-40.

37    A failure to take into account a relevant consideration will only constitute jurisdictional error where the ignoring of relevant material has affected the exercise of the power and thus results in the decision-maker exceeding the authority or power given by the relevant statute.

38    As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82], in a passage recently endorsed by the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [27], jurisdictional error may include:

…ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power…

The importance of establishing that the error has affected the exercise of power was emphasised at [82] and re-emphasised at [84] where their Honours explained that where a decision maker:

…ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.

39    In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, in a passage relied upon by Hill, Sundberg and Stone JJ in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [71], Kirby J at [87] described jurisdictional error as “a fundamental mistake at the threshold” in considering the legal claim of the applicant and thus “a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it”. As his Honour emphasised at [88]:

Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction.

Does s 501A(2) Give Rise to Mandatory Considerations?

40    Section 501A(2) expressly specifies a number of mandatory considerations which the Minister is bound to take into account. The first and second considerations are concerned with whether the Minister reasonably suspects failure of the character test and whether the person fails to satisfy the Minister that the person does pass the character test: s 501A(2)(c) and (d). A further express mandatory consideration is whether the Minister is satisfied that the refusal or cancellation of the person’s visa is in the national interest: s 501A(2)(e). The Minister must also consider the residual discretion as to whether or not the power given by s 501A(2) should be exercised.

41    Neither the question of the national interest nor the residual discretion are themselves constrained by express considerations which the Minister must take into account. However, the question relevantly raised for determination by the applicant’s case is whether and to what extent the Minister, when determining the national interest and exercising his discretion, is bound to take into account mandatory considerations which arise by implication from the Migration Act.

42    The object of the Migration Act “is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s 4(1). As s 4(4) specifies, to advance that object, the Migration Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Migration Act. Amongst a range of other provisions, s 501A(2) regulates whether a non-citizen may be permitted to stay in Australia.

43     The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Mandafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 at [89] (French, O’Loughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [12] and [32] (Katzman J); Maurangi v The Honourable Chris Bowen MP, Minister for Immigration and Citizenship [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gumow J); Re Paterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

44    The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

45    There is however one consideration that is so central to the subject matter dealt with by s 501A(2), that it is difficult to imagine that Parliament did not intend it to be a consideration the Minister is bound to take into account, both for the purpose of determining the national interest and the residual discretion. It is unlikely that the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen was intended as an optional consideration at the Minister’s election. In my view, and consistently with the view of the majority (Black CJ and Sackville J) in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346, the Minister is bound to consider that potential for harm to the Australian community in the exercise of the power conferred by s 501A(2).

46    A number of factors are relevant to that mandatory consideration. One obvious factor is the seriousness of the conduct of the non-citizen which has led to the failure to satisfy the Minister in relation to the character test. The seriousness of the past conduct of the non-citizen is probative of the potential for that conduct or like conduct to be repeated should the non-citizen be permitted to remain in Australia. The extent to which a non-citizen convicted of criminal conduct has been rehabilitated has an obvious and logical connection with the risk of that person re-offending. Each of these factors are germane to the potential for the Australian community to be harmed by the continued presence of the non-citizen.

47    Each of these factors were regarded as probative by the Minister in making the decision that the applicant’s visa should be revoked. The seriousness of and nature of the offences committed by the applicant, the circumstances in which they occurred, and the risk of the applicant re-offending were factors that the Minister specifically considered in relation to the question of the national interest and also as to the Minister’s residual discretion. As I have already found, to some extent, the Minister determined those considerations on a factually erroneous basis.

48    However, for reasons I will explain, it does not necessarily follow that the partially erroneous basis upon which considerations of the seriousness of the offences and the risk of re-offending by the applicant were determined, results in a finding of jurisdictional error.

National Interest

49    In relation to the determination of the national interest question, whilst the Minister is bound to consider the potential for harm to the Australian community, the broad level at which the question of the national interest may be answered dictates that “specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed” are not factors that the Minister is bound to consider: Huynh at [74]. As Kiefel and Bennett JJ explained in that case when considering s 501 of the Migration Act:

By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion.

50    In this case, in determining the question of the national interest, the Minister correctly identified the offences committed by the applicant. Given the broad-based and impersonal perspective from which the national interest is to be considered, the Minister was entitled to evaluate the seriousness of the applicant’s conduct by reference to the type of offences committed without descending into a consideration of the specific circumstances in which the offending occurred, including whether or not the child victim was or was not in the applicant’s care when the offending occurred. On the basis of the same reasoning, the Minister was entitled to determine the risk to the community, without addressing the personal circumstances of the applicant’s rehabilitation. Insofar as the Minister descended to such considerations he was engaged with permissive rather than mandatory considerations in relation to which jurisdictional error cannot be established.

Discretion

51    The issue becomes more difficult when it comes to considering the exercise of the Minister’s residual discretion. The personal dimension is far more apt for consideration in relation to discretion than it is in relation to a question of the national interest. There is also some tension in relation to this question between the reasoning of the majority in Huynh and that of the majority in Lu.

52    The majority in Huynh at [74] reasoned that the fact that the Minister may consider a matter as broad as the national interest in determining whether a person ought to be permitted to stay in Australia, leaves no room for the implication, in relation to the exercise of discretion, of “specific factors personal to the visa holder, such as the circumstances surrounding the offences they have committed”.

53    In Huynh, the majority rejected the proposition that mitigating factors, including the circumstances of the offending, which were included in the sentencing remarks of an appellate court which re-sentenced the visa holder, were considerations that the Minister was bound to take into account in the discretionary exercise of the power given by s 501(2) of the Migration Act. That provision empowered the Minister to cancel the visa on the basis of the same two preconditions relating to the character test found in s 501A(2)(c) and (d). A national interest pre-condition such as that in s 501A(2)(e) was not part of the provision. The majority’s reliance on the relevance of the national interest was based on the reference to the national interest in the s 4(4) object of the Migration Act.

54    In Lu, the Court considered the exercise of power by the Minister under the same provision as that which I am considering. The majority (Sackville J at [61] and Black CJ agreeing at [5]) held that the Minister committed a jurisdictional error by failing to take into account an accurate statement of the visa holder’s criminal record when exercising the residual discretion. Sackville J reasoned at [55] that given the drastic consequences to the visa-holder, Parliament could not have contemplated that the s 501A(2) power could be validly exercised on the basis of inaccurate information as to the offences committed by the visa-holder. Although not stated, that reasoning seems to be founded upon what Mason J held in Peko-Wallsend at 45, that it may be implied from nearly every statute conferring the power to make administrative decisions that the decision maker will not proceed on material that is “incomplete, inaccurate or misleading” (see further Huynh at [78]).

55    The inaccuracy in Lu concerned the statement in the Issues Paper presented to the Minister who made the decision there challenged, as to the length of the sentences imposed upon the visa holder for various drug offences. Sackville J at [54] distinguished the decision of the majority in Huynh on the basis that Lu involved a misdescription of the sentences imposed on the visa-holder and not the circumstances in which the offences were committed, as was the case in Huynh.

56    That distinction, with respect, seems somewhat illusory given that, inevitably, the length of a sentence will be determined by and therefore be reflective of the circumstances in which the offence was committed, including circumstances personal to the visa-holder. Further, the reasoning in Lu reveals that the real vice identified by both Black CJ and Sackville J in the inaccurate information given to the Minister about the sentences imposed upon the visa-holder, was the false impression that the misinformation created about the circumstances of the offending. Black CJ (at [28]) and Sackville J (at [60]) were concerned with the misleading impression left with the Minister by the misinformation, that the visa holder had been involved with hard rather than soft drugs. That was a matter which raised the circumstances in which the offending occurred and personal circumstances including, as Black CJ observed at [29], the risk of recidivism by the visa holder. Therein, it seems to me, lies the tension between the reasoning in Huynh and that in Lu.

57    The potential risk to the Australian community of two persons convicted of the same offence may be starkly different. The circumstances in which an offence is committed, for instance, that the victim was a long-standing sexual abuser of the offender, may say a great deal about the potential for risk to the Australian community.

58    In my view, where the Minister exercises his discretion under s 501A(2), he is bound to consider the potential for harm to the Australian community should the visa-holder be permitted to remain without ignoring material before him which gives an accurate account of the seriousness of the visa-holder’s prior criminal conduct. Such an obligation will extend to a consideration of the circumstances in which the offending occurred, where those circumstances are relevant to the assessment of risk. My view seems at odds with that expressed by the majority in Huynh but consistent with the reasoning of the majority in Lu.

59    However, that view is ultimately of no assistance to the applicant in this case.

60    The Minister’s erroneous view that the offending occurred whilst the child was in the applicant’s care does not give rise to jurisdictional error. It may be accepted that the Minister relied on factually incorrect material, but it cannot be said that such reliance affected the exercise of the Minister’s power.

61    That a sexual abuser of a child is also her carer makes the conduct more abhorrent than it otherwise would have been. However, that the sexual abuser of a child was her carer does not materially impact upon the risk of that abuser re-offending against another child. The Minister was bound to consider risk to the Australian community and not the particular abhorrence associated with the circumstances of the applicant’s offending. The Minister did consider the risk to the Australian community. The erroneous view the Minister held in relation to the circumstances in which the offending occurred was not germane to that assessment. The exercise of the Minister’s power was not affected, in the sense referred to in Yusuf, by the Minister regarding the applicant as a carer of the child.

62    The Minister ignored material before him which evidenced that the applicant had participated in a rehabilitation program as part of his parole conditions. He also had before him material which explained the applicant’s incapacity to participate in later rehabilitation because of his detention by the Department. The Minister specifically assessed the risk of the applicant re-offending on the basis of inaccurate or misleading information presented to him by the Issues Paper as to the applicant’s participation in rehabilitation.

63    As French J said in Roberts v Minister for Immigration and Multicultural Affairs [2004] FCA 739 at [44], a cancellation of a visa under s 501A is a very serious step. By reference to what a Full Court of this Court said in Minister for Immigration, Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 at [32]-[33], French J observed at [44] that where the entitlement of an individual to remain in Australia was at issue in the making of a decision, the Australian community was entitled to expect the documentation relating to the making of such a significant decision would be prepared with care. Where material like that presented by the Issues Paper is not prepared with care, resulting in the possibility that misleading impressions may have been created, a doubt is generated as to whether the Minister was fully informed about those facts which formed the basis for his or her decision. A seriously deficient Issues Paper enables the drawing of an inference that the Minister failed to consider a material consideration in the decision-making process: Le v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 51 at [32]-[33] (Lee J).

64    The extent of a person’s participation in rehabilitation programs has a logical bearing upon that person’s rehabilitation. The extent to which a non-citizen with a criminal history has been rehabilitated has a logical bearing upon the risk of that person re-offending and is germane to the potential for risk to the Australian community should the person be permitted to stay.

65    The extent of the applicant’s rehabilitation, was a factor the Minister was bound to take into account in considering the risk to the Australian community of allowing the applicant to remain. The Minister failed to do so on the basis of accurate information before him as to the applicant’s participation in rehabilitation programs. Having failed to take into account an accurate account of the applicant’s rehabilitation, the Minister ignored relevant material in a way that affected the exercise of his power.

66    Although the applicant has, in this respect, established jurisdictional error, for the reasons explained by Sackville J in Lu by reference to the judgment of Mason J in Peko-Wallsend, the applicant will only be entitled to relief if the Minister’s failure to take account of a relevant consideration could have materially affected the Minister’s decision. The test, as Sackville J explained at [64], is whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker’s failure to observe the requirements of the statute, or put another way, the applicant will succeed unless the failure could have had no bearing on the decision made. That test was followed and applied in VAAD at [82]-[83] (Hill, Sundberg and Stone JJ).

67    In this case and in assessing the risk to the Australian community, the Minister set a high hurdle in relation to the possibility of the applicant re-offending. The Minister did that, by reference to the nature of the applicant’s past offending. The Minister regarded “any risk” of the applicant re-offending to be unacceptable. The Minister was concerned to be able to “rule out the possibility” of the applicant re-offending.

68    The extent of the risk of a visa-holder re-offending which may be regarded as an acceptable risk for the Australian community to take, is a matter for the Minister to determine. In circumstances where the Minister was assessing risk on the basis that he needed to be satisfied that the risk of the applicant re-offending was effectively negated, the Minister’s failure to take into account the applicant’s participation in a rehabilitation program and his willingness to participate in a further program did not deprive the applicant of the possibility of a successful outcome. The best the applicant could have hoped for, if an accurate account of his rehabilitation had been considered, was a conclusion that the risk of his re-offending was low. Such a conclusion was contemplated by the Minister at [30] of the Statement of Reasons. The Minister concluded that even if any risk of recurrence of the crimes committed by the applicant was low, such a risk outweighed the countervailing factors which favoured the applicant retaining his visa. The applicant ought not be granted relief on this ground.

Denial of Natural Justice

Evidence of the Victim’s Mother

69    The applicant contended that he was denied natural justice by not being afforded an opportunity to respond to evidence which was given before the AAT and which was specifically brought to the attention of the Minister by the Issues Paper. The evidence in question is summarised at [39]-[40] of the decision of the AAT. Those paragraphs were dealt with under the heading “Risk of Recidivism” and are in the following terms:

Mr Gbojueh has no previous convictions and therefore no criminal history to be considered. However, despite objection by Mr Hurley, I accepted into evidence a witness statement prepared by Ms Jaylee Browne, the mother of the victim. In that statement Ms Browne said that she recalled one night after having had sex with Mr Gbojueh when he said: That I felt like a 14 year old when we had sex. Ms Browne said she asked him how he knew what a 14 year old felt like when having sex, but he passed it off as a joke. Ms Browne also said that she had received calls from friends who had known Mr Gbojueh in the refugee camp when he was in Ghana. She then said:

…I learned that members of the Baptist church in the camp had known that Thomas [Mr Gbojueh] had abused young girls in the camp in Ghana, and had warned him to change his behaviour before he came to Australia.

Although I have referred to Ms Browne’s testimony, Mr Gbojueh does not have a past criminal history and there are problems accepting what Ms Browne said in evidence. That is because the statement regarding the 14 year old was not put to Mr Gbojueh in cross-examination thus giving him the opportunity to refute it. The statement regarding the abuse of young girls in the camp in Ghana was put to Mr Gbojueh directly in cross-examination and when asked whether he had abused children in that camp, his response was No sir. Of course, Ms Browne’s testimony is based on the hearsay statements of unidentified persons. It would be unfair and unsafe for me to place any weight on that at all. Judge Clayton also referred to statements made by the victim's mother regarding his conduct in Liberia. He said: I disregard the statement of the mother with respect to her belief as to your conduct in Liberia.

70    A somewhat inaccurate account of the evidence of the victim’s mother and the way in which the AAT dealt with that evidence was set out at [35] of the Issues Paper under the heading “Criminal History”. That paragraph was in the following terms:

Mr GBOJUEH has no other convictions in Australia. You may wish to note that the Tribunal accepted into evidence a statement by the mother of the victim that Mr GBOJUEH had commented to her that their sex had ‘felt like a 14 year old’ and that other people who had known Mr GBOJUEH in the refugee camp in Ghana had told her that he had abused young girls there. The Tribunal noted that Mr GBOJUEH had denied this when it was put to him and found that, as the evidence was based on hearsay, it would be wrong to give it any weight (Attachment B).

71    The attachment referred to in that paragraph was the decision of the AAT.

72    The applicant contended that he was not given any notice that the evidence of the victim’s mother referred to in the Issues Paper would be put to the Minister. He contends therefore that he was denied the opportunity to respond to that material. It was not in issue that in the exercise of the power conferred by s 501A(2) the rules of natural justice apply: see s 501A(4). The applicant therefore contended that he was denied procedural fairness and that jurisdictional error was established.

73    The Minister contended that the applicant had been given notice of and was aware of the evidence in question and was aware that it would be before the Minister. The Minister relied on the “Notice of Intention to Consider Cancellation of Your Visa under sub-section 501A(2) of the Migration Act” (“the Notice”) provided to the applicant by the Minister on or about 1 June 2011. The Minister contended that the Notice notified the applicant that in considering whether to exercise his discretion to cancel the applicant’s visa, the Minister would take into account the decision of the AAT. As that decision set out at [39] (reproduced above) the evidence about which the applicant complains, the applicant was informed that the evidence in question would be placed before the Minister.

74    The Notice advised that the Minister intended to consider whether to set aside the decision of the AAT and to cancel the applicant’s visa pursuant to s 501A(2) of the Act. The Notice explained to the applicant the preconditions for the exercise of power under s 501A(2). The Notice then included a heading “Information to be considered”. Under that heading a list of some twenty six items identified various reports, letters and other material including, in the last bullet point, the decision of the AAT. The Notice informed the applicant that the list set out “information that the Department currently holds that the Minister will take into account in considering whether to exercise the discretion to cancel your visa”. The Notice further advised the applicant that he had the opportunity to “comment on the information that will be considered by the Minister and to submit additional information, if you wish”.

75    The Statement of Reasons did not refer to the evidence of the victim’s mother. The Minister did however state at [29] that he had considered “all evidence available to me”.

76    The fundamental principles governing procedural fairness are well known and were not in contention. What is required by procedural fairness is a fair hearing, not a fair outcome and the relevant question is not whether the decision-maker’s factual conclusions were right but whether the process was right: SZBEL and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25] (Gleeson CJ, Kirby, Hayne, Callanan and Heydon JJ).

77    As Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [19]:

The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.

78    In Re Refugee Review Tribunal and Another; ex parte Aala (2000) 176 ALR 219 McHugh J stated at 101 that:

One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.

79    The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at [17] and see at [20].

80    There is no issue before me as to whether the information in question was of the kind which enlivened the obligation to notify the applicant. The evidence of the victim’s mother was adverse to the applicant and highly prejudicial. It was material that related to an issue critical to the decision, namely, the prior offending of the applicant and therefore the potential risk to the Australian community of the applicant being permitted to remain in Australia. It was not suggested by the Minister, and in my view correctly so, that the evidence of the victim’s mother was material to which the Minister could not give credence. The evidence was capable of influencing the decision and the manner in which attention was drawn to it by the Issues Paper (including the heading “Criminal History”) seems to have been calculated to influence that decision.

81    Nor does the Minister seek to counter this challenge by contending that the Minister did not actually take into account the evidence of the victim’s mother in arriving at the decision. Given the Minister’s statement that he took all of the evidence available to him into account, it would be difficult for that contention to be sustained. In any event, as Wilson J said in Kioa at 603, it is not necessary to show that the material did work to the prejudice of the person affected by the decision, “it is enough to show that the way was open for it to do so”: see further VEAL at [18] and [19].

82    The only question that really arises which I need to determine, is whether notice that the Minister would consider the evidence of the victim’s mother was given to the applicant so that he could respond to it. That requires consideration of the nature and content of the obligation upon the Minister to have provided the applicant with notice in the circumstances of the case at hand.

83    In order to consider the circumstances of the particular case, it is necessary to reflect firstly upon the statutory scheme pursuant to which the decision was made. Section 501A(2) only applies if an “original decision” made either by a delegate of the Minister or the AAT has been made. The provision empowers the Minister to “set aside the original decision”.

84    The Minister’s power is not exercised in a vacuum. It may only be exercised subsequent to the making of the original decision. The Minister is not confined in the considerations he may take into account by the issues that were dealt with in relation to the original decision. However, the original decision, the process that led to it, and the reasons for it, form a backdrop or context which helps to give shape to the nature and content of any duty to provide notice of the issues and material which the Minister intends to consider, including by assisting to determine whether no warning at all was required because “the risk necessarily inheres in the issues to be decided”.

85    That prior dealing with the issues raised is conducive to an understanding of what assumptions may reasonably be expected of persons likely affected, as to what the Minister will likely take into account in determining whether the original decision should be set aside.

86    The reasoning of the High Court in SZBEL demonstrates how assumptions of the kind I have in mind arise. In that case, s 425 of the Migration Act was being considered in the context of the statutory scheme by which the Refugee Review Tribunal is empowered to review decisions made by a delegate of the Minister. At [35] the Court said:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

87    Those conclusions were reached by the Court by reference to the particular statutory language utilised by s 425 of the Migration Act and in particular “the issues arising in relation to the decision under review”. Analogous language is not employed by s 501A(2) but the process of a decision being “set aside” and being reviewed bear some similarity. Both processes begin with and may reasonably be expected to involve consideration of an earlier decision including the process by which it was reached and the reasons given for it.

88    The scheme of which s 501A(2) is a part, contemplates that an original decision may be made by the AAT. That scheme contemplates and provides for an application to the AAT seeking the review of an earlier decision of a delegate of the Minister made under s 501 (s 500(1)(b) of the Migration Act); ordinarily, there will be a hearing before the AAT (s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”); the hearing will be conducted in a quasi-judicial setting involving parties (s 30 of the AAT Act), the possible representation of parties (s 32 of the AAT Act), the calling of evidence and the examination and cross-examination of witnesses, in circumstances where the AAT is bound to act judicially and whilst not bound by the rules of evidence is required to have regard to the rules of evidence and the rationality behind them to assess the weight to be given to any evidence (s 33(1)(c)) of the AAT Act and Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256-257 (Brennan J); and on appeal Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 660 at 686, 689-690 (Deane J with whom Evatt J agreed); and where the AAT is obliged to make findings and, when requested, to provide a “statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision” (s 28(1) of the AAT Act).

89    By reason of that context, a visa-holder facing a s 501A(2) process involving whether a decision of the AAT would be set aside, would likely be operating by reference to a set of expectations or assumptions. Such a person would likely assume that the issues before the AAT may be reconsidered by the Minister. Such a person is not likely to assume that the Minister would reconsider an issue dealt with by the AAT, by reference to evidence which the AAT rejected.

90    The duty to act fairly requires that in circumstances where the Minister intends to consider evidence adverse to a visa-holder which has been rejected by the AAT, the visa-holder should be notified of that intention.

91    In this case, no such notification was given to the applicant. All that the applicant was told was that the Minister would consider the decision of the AAT. Whilst the AAT decision refers to the evidence of the victim’s mother, the AAT decision rejects that evidence. The AAT decision was not relevantly adverse to the interests of the applicant by reference to that evidence and a mere reference to the decision, without more, could not be regarded as fairly putting the applicant on notice that the Minister intended to consider evidence which the decision had dismissed.

92    Procedural fairness required the Minister to put before the applicant “the substance of matters” that the Minister intended to consider: Plaintiff M61/2010E v Commonwealth (2010) 85 ALJR 133 at 150-151 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The substance of the legal and factual concern needed to be disclosed: Dunghutti Elders Council (Aboriginal Corporation RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] 195 FCR 318 at [64] (Keane CJ, Lander and Foster JJ). That was not done in this case and as a result the applicant was not given an opportunity and did not take up an opportunity to respond to the evidence of the victim’s mother. A “practical injustice has been shown”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] and [38] (McHugh and Gummow JJ).

93    That brings me to the question of whether there is a proper basis for refusing relief. In Aala, McHugh J at [104] (in a passage later referred to by the Full Court in VAAD at [80]) said:

Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome" (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).

94    The Full Court in VAAD at [81] further relied upon what Kirby J said in Applicant NAFF of 2002 v MIMA (2004) 221 CLR 1 at [85]:

Every person, in respect of whom material decisions are made by a repository of public power conferred by the Parliament, is ordinarily entitled to have such power exercised in accordance with law. That includes, relevantly to this case, in accordance with the requirements of procedural fairness. The ultimate outcome of such insistence on fair procedures might eventually be the same. But where the issue is whether additional evidence and submissions might have affected the outcome of the decision-maker's consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile.

95    Whilst in the absence of the breach a different outcome may not have been probable, I am unable to conclude that the denial of procedural fairness could have had no bearing on the decision. The evidence of the victim’s mother was highly prejudicial and went to what the Statement of Reasons shows to have been the primary concern of the Minister – the prospect that the applicant would re-offend. It is relevant but not determinative to observe that the Minister had before him evidence of the applicant’s denial in the AAT of the allegation that he abused children in the refugee camp in Ghana. However, the applicant was not given the opportunity in the AAT to refute the other evidence of the victim’s mother and there was no response of any kind from the applicant before the Minister on that evidence. I cannot exclude the possibility that the evidence of the victim’s mother had a bearing upon the Minister’s decision.

inflexible policy

96    The applicant contended that he was denied procedural fairness because the decision was made pursuant to an inflexible rule or policy. There was some confusion as to whether what was asserted was that the inflexible policy was applied to the exercise of the Minister’s discretion, to the determination of the national interest question, or to both.

97    The applicant contended that the existence of the policy relied upon is demonstrated by two paragraphs in the Statement of Reasons. At [7] the Minister said:

I noted that Mr GBOJUEH has been assessed on several occasions as representing a low risk of re-offending, but I consider that any risk of such offences occurring is unacceptable and that the cancellation of Mr GBOJUEH’s visa is in the national interest.

At [30] the Minister said:

In making my decision, I concluded that it was in the national interest to cancel Mr GBOJUEH’s visa, primarily because of the particularly serious nature of the relevant offences and the circumstances in which they occurred, and bearing in mind that the consequences of any further offending of a similar nature to that he has already committed would be extremely grave and would create abhorrence and general revulsion in the community. In particular, I considered that any risk of recurrence of such crimes, even if low, outweighs Mr GBOJUEH’s family and other links with Australia formed during his over four years of residence in this country, the hardship he may face in returning to Liberia and any other countervailing factors identified above.

98    There are a number of difficulties with this ground and I need not outline them all. Nor is it necessary that I recount the many authorities that have considered the law on the application of a policy in the making of administrative decisions. I will proceed on the assumption that the applicant is correct to contend that the application of a policy that admits of no exception in the making of an administrative decision demonstrates jurisdictional error.

99    This ground fails at the first hurdle. The applicant has not demonstrated the existence of any policy of the kind the applicant contends for, namely that “all persons who fail to pass the character test by reason of ‘such’ offences must have their visas cancelled”. The reference to “such offences” in the applicant’s description of the policy is a reference to that term as utilised in paragraph [7] of the Statement of Reasons to which I will return.

100    There is no policy document or other expression of the asserted policy in evidence. There is no evidence that the Minister has applied the course which he took in relation to the applicant to anyone else. There is no reference to a policy of the kind asserted in the Statement of Reasons.

101    The only possible basis for asserting the existence of the policy contended for by the applicant is that the language used by the Minister in the Statement of Reasons and what the Minister did, demonstrates the Minister’s commitment to a particular position of general application which the Minister has and intends to apply to all persons. I would not infer from what the Minister said or did the existence of such a policy.

102    The Minister’s remarks upon which the applicant relies are not entirely general but include elements personal to the applicant. The reference to “such offences” at [7] in the Statement of Reasons is somewhat ambiguous but when read with [30] it is clear that the Minister made his decision not simply by reference to the type of offence committed by the applicant but also by reference to the circumstances (personal to the applicant) in which those offences occurred. That much is plain from the first sentence of paragraph [30].

103    The later reference in [30] to “such crimes” is, for the same reason, to be understood as a reference to the crimes committed by the applicant in the circumstances (peculiar to the applicant) in which they occurred. What the Minister said is not an expression of a general policy position.

104    That conclusion is supported by the contents of [8]-[28] of the Statement of Reasons in which the Minister sets out the various matters he considered in the exercise of his discretion. That the Minister did so is entirely inconsistent with the Minister operating by reference to a policy that all persons who have committed the same category of offence as that of the applicant “must have their visas cancelled”.

105    Furthermore, those paragraphs demonstrate that consideration was given to the individual merits of the applicant’s case and even if a policy existed, it was not a policy in the terms contended for by the applicant.

106    Finally, whilst the application of an inflexible policy may be the basis for contending a fetter on the exercise of a discretion, the authorities support the proposition that the Minister may impose a general standard, leaving little or no room for individual considerations, when addressing the question of a value-laden criterion such as the national interest: Jia at [190]-[191] (Hayne J, with whom Gleeson CJ and Gummow J agreed); Huynh at [74] (Kiefel and Bennett JJ).

disposition

107    The jurisdiction conferred upon the Court by s 476A(2) of the Migration Act is the same as that of the High Court under paragraph 75(v) of the Constitution. The Court is therefore empowered to issue a writ of prohibition or additionally or in lieu, a writ of certiorari: Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Anor [2007] 157 FCR 260 at [47] (Spender, French and Cowdroy JJ).

108    A writ of mandamus has not been sought and would, in any event, not be available given that s 501A(5) provides that the Minister has no duty to consider the exercise of the power conferred by s 501A(2): Plaintiff M61 [99]-[100].

109    In light of the conclusion I have reached that the applicant was denied procedural fairness, I will order that a writ of certiorari issue to quash the decision of the Minister. Although grounds for the issue of a writ of prohibition exist, a writ of certiorari appears to me to be the most appropriate remedy. No basis was given, and none is apparent, for the applicant’s claim that an injunction should issue to restrain the Minister from reconsidering the cancellation of the applicant’s visa. I will not make such an order.

110    I have not heard the parties on the question of costs. Ordinarily, costs are awarded to the successful party. It is convenient that I make an order for costs in favour of the applicant now, but on the basis that should the Minister contest the appropriateness of such an order within seven days, I will set aside the order and redetermine the issue after receiving short written submissions from the parties.

Associate:

Dated:    23 March 2012