FEDERAL COURT OF AUSTRALIA

NBMW v Minister for Immigration and Border Protection (No 2) [2014] FCA 454

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1        On 5 July 2013, I granted the applicant leave to file an amended application in the form annexed to the affidavit of Andrea Marianne Christie-David sworn 31 January 2013, excluding ground 1: NBMW v Minister for Immigration and Citizenship [2013] FCA 651.

2        On 19 July 2013, the applicant filed an amended application in accordance with the leave granted seeking to restrain the respondent (“Minister”) from relying on the security assessment hereinafter referred to; seeking to quash the decision of the Minister, made on 29 November 2011, to cancel the applicant’s protection visa previously granted (“the decision”); seeking to prohibit the Minister from further proceeding on the decision; or in the alternative, seeking a writ of mandamus addressed to the Minister requiring him to comply with s 501C(3)(a)(ii) of the Migration Act 1958 (Cth) (“the Act”) by providing the applicant with particulars of the information relied upon in making the decision.

3        On the hearing of the amended application, the applicant did not press for relief in the form of injunction restraining the Minister from relying on the security assessment.

STATUTORY CONTEXT

Background

4        The Act provides for a scheme by which the Minister can grant visas, cancel visas, communicate information in respect of the cancellation of visas and revoke the cancellation of a visa.

5        Section 501(3) of the Act confers on the Minister a power to cancel a visa. It relevantly provides that:

The Minister may:

(a)    …

(b)    cancel a visa that has been granted to a person;

if:

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

(d)    the Minister is satisfied that the … cancellation is in the national interest.

6        Section 501(5) of the Act abrogates principles of procedural fairness which might otherwise apply to the exercise of the Minister’s power under s 501(3). It provides that:

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).

7        The circumstances in which a person will not pass the character test are set out in s 501(6) and include:

[I]f:

(a)     …

(b)    the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

…

(d)    in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

…

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Notice of cancellation decisions

8        If the Minister decides to cancel a person’s visa under s 501(3), the Minister must give the person notice under s 501C(3), which provides:

As soon as practicable after making the [cancellation] decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the [cancellation] decision; and

(ii)    particulars of the relevant information; and

(b)    [subject to a presently irrelevant exception]—invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the [cancellation] decision.

9        “Relevant information” is defined in s 501C(2) as:

[I]nformation (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the [cancellation] decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

10        Pursuant to s 501C(4) of the Act, the Minister:

[M]ay revoke [a cancellation decision] if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the person satisfies the Minister that the person passes the character test (as defined by section 501).

11        The “invitation” referred to in s 501C(4) is plainly the invitation referred to in s 501C(3)(b).

Protection of information from disclosure: Section 503A(2)

12        Section 503A relates to the non-disclosure by the Minister of certain kinds of information. It relevantly provides:

(1)    If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:

(a)    the officer must not divulge or communicate the information to another person except where:

(i)    the other person is the Minister or an authorised migration officer; and

(ii)    the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and

(b)    an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:

(i)    the other person is the Minister or an authorised migration officer; and

(ii)    the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C.

(2)    If

(a)    information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or

(b)    information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);

then:

(c)    the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person…

FACTUAL BACKGROUND

13        The applicant is a citizen of Afghanistan who arrived at Christmas Island by boat on 20 July 2010 and was taken into immigration detention. He made a claim to be a refugee on the basis that he had been targeted by the Taliban because he was a leader in his community and in revenge for the death of a member of the Taliban during a conflict in the applicant’s village a number of years earlier.

The Cancellation Decision

14        On 12 January 2011, the applicant was found by an officer of the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (“Department”) to be a refugee as defined by the Refugees Convention: Court Book (“CB”) at 1. On 6 April 2011, the applicant was granted a Subclass 866 (Protection) visa: CB 11.

15        On 24 November 2011, the Australian Security Intelligence Organisation (“ASIO”) furnished the Department with an adverse security assessment in respect of the applicant: CB 15 (“Security Assessment”). On or about 28 November 2011, the Department furnished a submission to the Minister seeking the Minister’s decision on whether to cancel the applicant’s visa under s 501(3) of the Act: CB 15–25 (“Department’s Submission”). The Department’s Submission addressed ss 501(6)(b) and 501(6)(d)(v) and the issue of the national interest: CB 22–24.

16        The Department’s Submission also referred to the Respondent’s power to revoke a cancellation decision made under s 501(3). It stated as follows (CB: 21, 24):

[7]    [S]ection 501C of the Act provides that, following a decision under subsection 501(3) to refuse or cancel a visa, the person who was the subject of the decision is to be invited to make representations about possible revocation of the decision and that you may revoke the decision if the person satisfies you that they pass the character test.

…

[26]    [S]ection 501C of the Act provides that, following a decision under subsection 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be notified of the decision and given reasons for the decision and invited to make representations about possible revocation of the decision. You may revoke the decision if the person satisfies you that they pass the character test.

17        On 29 November 2011, the Minister decided to exercise his power under s 501(3)(b) of the Act to cancel the applicant’s visa (“Cancellation Decision”): CB 26. On the same day, the Minister signed a Statement of Reasons in respect of that Cancellation Decision: CB 27–28 (“Reasons”).

18        In respect of the character test, the Minister said in his Reasons (CB 27 [3]):

Based on the adverse security assessment and statement of grounds provided by [ASIO] in respect of [the applicant], including the material which is section 503A protected information, I reasonably suspect that [the applicant] does not pass the character test by virtue of section 501(6)(b) and section 501(6)(d)(v).

19        In respect of the national interest, the Minister, amongst other things, said in the Reasons (CB 27 [5]):

I am satisfied that it is in the national interest that the visa held by [the applicant] be cancelled under section 501(3)(b). In determining this I gave consideration to all the information before me, including the information protected under section 503A, as well as to relevant international non-refoulement obligations, and the impact that cancelling [the applicant’s] visa may have on him.

Section 501C(3) Notice

20        On 29 November 2011, the Department sent a notice to the applicant notifying him that the Minister had decided to cancel his visa: CB 53 (“Section 501C(3) Notice”).

21        The following were included with the Section 501C(3) Notice as enclosures:

(a)    A copy of the written Cancellation Decision made by the Minister: CB 55;

(b)    a copy of the written Reasons signed by the Minister in respect of the Cancellation Decision: CB 56–57;

(c)    copies of relevant statutory provisions: CB 58–62;

(d)    a copy of the applicant’s migration history: CB 63;

(e)    a redacted copy of the Security Assessment: CB 64–73;

(f)    a copy of the applicant’s Refugee Status Assessment: CB 74–82.

22        The reason for the redaction of information in the Security Assessment appears in the Section 501C(3) Notice (CB 53):

A copy of a statement of reasons for the decision of the Minister and information relevant to the decision is enclosed. As noted in the statement of reasons, some of the information that was considered by the Minister is protected information under s 503A of the Act and this information cannot be disclosed to you.

23        Read in context, the information that was not disclosed by reason of s 503A was the information contained in the text redacted from the Security Assessment (that being the only redacted document that was provided with the Section 501C(3) Notice).

The Revocation Application

24        On 7 December 2011 (CB 83–130), the applicant, through his agent, wrote to the Minister requesting that he exercise his discretion under s 501C(4) to revoke the Cancellation Decision (“Revocation Application”). On 25 January 2013, the applicant’s legal representatives sent the Minister supplementary information in support of the Revocation Application: CB 131–132.

25        The Minister has not yet decided whether to exercise his discretion to revoke the Cancellation Decision.

GROUNDS OF AMENDED APPLICATION

First Ground

26        In the amended application, the first ground is put as follows:

In making his decision to cancel the Applicant’s visa, the Respondent misconstrued the power by relying upon the assumption that his decision could be revoked under subsection 501C(4) of the Act.

27        In its terms, this ground has no foundation in fact or law. The Minister, in exercising his discretionary power under s 501(3)(b) to cancel the applicant’s visa, did not misconstrue anything, and certainly did not misconstrue the power under which he acted.

28        The applicant’s written submissions (“AWS”) put this ground somewhat differently. As a first head of argument, it was said that in exercising the power to cancel, the Minister acted under a misapprehension that the applicant would have a “real” opportunity to make representations addressing the grounds on which the Cancellation Decision was made and, in consequence, an “effective” opportunity to satisfy the Minister that he did pass the character test and so enliven the Minister’s discretion to revoke the Cancellation Decision under s 501C(4): AWS at [13]. It was further said that this misapprehension or erroneous belief led to a constructive failure to exercise jurisdiction, and that the discretionary power miscarried.

29        The applicant says that this misapprehension is similar to that which the Minister had in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 and which resulted in the High Court identifying jurisdictional error in exercise of the s 501(3) power: see particularly at 453–455 [189]–[196] (Gummow and Hayne JJ).

30        There are a number of difficulties with the applicant’s argument. First, there is no evidence that the Minister held some such misapprehension or erroneous belief. The basis of the decision in Re Patterson was that the Minister in fact held the relevant erroneous belief. Here, the applicant has not established that the Minister held any belief other than that which he expressed in his Reasons.

31        In his Reasons, the Minister said (CB 27[2]):

By s 501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under s 501(3). However by section 501C, following a decision under s 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be invited to make representations about possible revocation of the decision.

Contrary to the applicant’s submissions, the above passage does not add to the language of s 501C(3)(b) by, for example, stating that those representations, if made, are expected to be of a particular nature or extent. Nor did the Minister state any belief as to the content of any representations that might be made consequential on the invitation to which he referred, or about whether those representations would involve a real or effective opportunity to respond to the Cancellation Decision.

32        Indeed, the Minister’s Reasons tend against any inference that the Minister thought that the applicant would be given notice of the matters on which the Minister’s decision was based, and a full opportunity to answer them, because he made repeated reference to having made his decision based on information including “s 503A protected information” (e.g. CB 27 [3] and [5]). Those references demonstrate that the Minister was aware that he was acting on information that had been provided to his Department in confidence, and that under the statutory regime in s 503A his Department was required not to disclose to the applicant.

33        In any event, even if the Minister did have some belief as to the quality of the opportunity which the applicant might have to make submissions on the Cancellation Decision, there is no basis to infer that that belief involved any more or less than that the applicant would be provided with the opportunity to make submissions which, consistently with the law, he ought to be provided. The applicant was provided with that opportunity. Whether or not that opportunity is characterised as “real” or “effective” is beside the point.

34        Secondly, the applicant’s reliance on Re Patterson is misplaced. In Re Patterson, the Minister had cancelled the prosecutor’s visa under s 501(3) on the basis that the prosecutor had a “substantial criminal record” within the meaning of s 501(6)(a). The Court accepted that the prosecutor’s criminal record was such that “he could not pass the character test” (at 417 [71], 453 [190]). There was nothing the prosecutor could submit to the Minister after the cancellation decision that would change the fact that he had a substantial criminal record, and therefore the power to revoke under s 501C(4) could never have arisen. In those circumstances, the Minister’s decision to cancel the visa constructively failed because the Minister made the cancellation decision on the basis that the decision could be revoked when – in the particular circumstances of the prosecutor’s criminal history – the power to revoke the cancellation power “could never be enlivened”: at 453 [190].

35        Re Patterson is distinguishable for three reasons.

(1)    First, in Re Patterson, the majority (Gummow and Hayne JJ, Gleeson CJ agreeing at 398 [1] and McHugh J agreeing at 420 [87]) distinguished the “substantial criminal record” limb of the character test (s 501(6)(a)) from the other limbs, stating that “[d]ifferent circumstances might have arisen if, for example, the ground relied upon had been the prosecutor’s association with a person or group or organisation whom the Minister reasonably suspected of involvement in criminal conduct (para (b) of s 501(6))”: 453–454 [190]). This case falls squarely within that carve-out, given that the Cancellation Decision was based in part on s 501(6)(b): CB 27[3].

(2)    Second, the essential difference between s 501(6)(a) (at issue in Re Patterson) and ss 501(6)(b) and 501(6)(d)(v) (at issue here) is that the former involves a question of fact, whereas the latter involves questions of judgment and admits of explanatory evidence. If a person has a substantial criminal record, no explanation of the circumstances of past offending, or of good conduct since, can change the fact of that record. But ss 501(6)(b) and 501(6)(d)(v) are different. Section 501(6)(d)(v) involves a predictive exercise that could obviously be influenced by submissions. Similarly, s 501(6)(b) requires an evaluation of an “association” which, while it focuses on past facts, may be innocent or culpable: e.g., Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, 445–446 [121] (Black CJ, French and Weinberg JJ). A conclusion about “association” therefore may be affected by explanation or exculpatory evidence. Accordingly, whenever a decision is based on that limb of the character test, an opportunity to seek revocation is not necessarily futile (unlike a case within s 501(6)(a)).

(3)    Third, the Minister’s misapprehension in Re    Patterson involved a misapprehension of present fact. At the time of the decision, any revocation application would have been futile. The misapprehension asserted by the applicant in these proceedings is not one of present fact. The asserted misapprehension is an alleged belief on the part of the Minister that the applicant would have a real or effective opportunity to make submissions on a revocation application. That belief, if held, could only be falsified by events subsequent to the decision: it depended on what future steps the Minister and the Department took to inform the applicant of the Cancellation Decision. A belief, true when held, but falsified by subsequent events, should not be regarded as a misapprehension capable of giving rise to a constructive failure to exercise jurisdiction. The means by which events subsequent to a decision might affect the validity of the decision is through the doctrine in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355: see Re Minister for Immigration and Multicultural and Indigenous Affairs ; Ex parte Palme (2003) 216 CLR 212, 225 [44] (Gleeson CJ, Gummow and Heydon JJ). There is no contention – and there could be no sound contention – that it was a purpose of any duties imposed on the Minister subsequent to the Cancellation Decision that failure to perform those duties would invalidate the Cancellation Decision.

36        A second head of argument under this first ground was articulated at [14] of the AWS in the following terms:

Conversely, but to the same effect, the Minister was never informed of the obligation to provide “particulars of the relevant information” to the applicant under s 501C(3). The Minister was told that “the person who is the subject of the decision is to be notified of the decision and given reasons for the decision and invited to make representations about possible revocation of the decision”: CB 24 [26]. That was an incomplete summary of the relevant information and indicates that the Minister misconceived the nature and extent of his power to cancel.

37        As a matter of logic, the inclusion or omission of such detail is incapable of demonstrating error, because it cannot properly be inferred that the Minister failed to comply with, or to have any awareness of, any provision of the Act simply because that provision is not specifically mentioned in a Departmental submission.

38        The assertion that the Minister was given an “incomplete summary” of the provisions of the Act does not provide any basis for asserting that the Minister “misconceived the nature and extent of his power”. The Minister’s reasons for decision do not reflect any misapprehension as to the power he was exercising.

39        Further, and contrary to the applicant’s contention (AWS at [9]) that s 501C(4) “necessarily involves the provision to the person of a reasonable opportunity to mount an argument” that they pass the character test, the provisions of the Act summarised above, and the operation of s 503A discussed below, both contemplate that even “particulars” of the information on which the Minister bases a decision under s 501(3) will in some cases not be provided to a person whose visa has been cancelled. Those provisions show that the Act contemplates that a person may be denied the very opportunity that the applicant contends is mandated by the Act.

40        In conclusion, the first ground of the amended application cannot be sustained.

Second Ground

41        In the amended application, the second ground is put as follows:

The Respondent has failed to comply with section 501C(3)(a)(ii) of the Act:

a.    Section 503A did not prevent the Minister from providing the Applicant with particulars of the information on which he relied in making his decision to cancel the Applicant’s visa.

42        Although the applicant does not say as much, the basis of this ground would seem to be that by including only a redacted copy of the Security Assessment, the Section 501C(3) Notice failed to contain “particulars of the relevant information”. However, construed in statutory context, s 501C(3)(a)(ii) did not require the Minister to disclose the classified Security Assessment, because s 503A(2)(c) applied to that information. Section 501C(3)(a) imposes a duty on the Minister, in some circumstances, to furnish persons with particulars of relevant information. But it does not pursue that duty where that would be inconsistent with other important parts of the Act.

43        I agree with the written submissions of the Minister at paras 42–46 inclusive in the following terms:

42.    The manifest purpose of s 503A(2)(c) is to protect the confidentiality of the information to which it applies, against what would otherwise be compelled disclosure, where that information is to be used in the context of visa cancellation or refusals (including in the context of powers that are available only to the Minister personally). It pursues that objective even if the result is to abrogate procedural fairness: Evans v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 306, 312 [13]–[15] (Gray J), 321 [50] (Kenny J). In those circumstances, s 503A(2)(c) must be taken to be a “leading” provision (Project Blue Sky at 382 [70] (McHugh, Gummow, Kirby and Hayne JJ)), to which s 501C(3)(a)(ii)) must give way.

43.    That conclusion is confirmed by ss 503A(6) and (8), which provide that s 503A has effect despite any other provision in the Act (other than ss 503B and 503C). In Peters v Administrative Appeals Tribunal (2005) 144 FCR 417 at 424 [27], a Full Court of the Federal Court held that those subsections indicate a “clear intention by Parliament that the provisions of s 503A should predominate over any other provisions in the Act”.

44.    Where information falls within s 503A(2), the Minister “must not be required to divulge or communicate the information to … [a] person”: s 503A(2)(c). To the extent that s 501C(3)(a)(ii) would otherwise impose a duty on the Minister to divulge or communicate such information, it must be read down because otherwise it would impose a requirement contrary to s 503A(2).

45.    That submission is supported by Minister for Immigration v Ball (2004) 138 FCR 450 (Ball), where a Full Court of the Federal Court held that s 503A(2)(c) abrogated the duty of procedural fairness that would otherwise attend exercise of the s 501(2) cancellation power. The result was that a failure to disclose information to the visa-holder, thereby denying the visa-holder an opportunity to respond to adverse information prior to the decision to cancel, did not vitiate exercise of the power to cancel the visa. The nub of the reasoning appears at 471 [91], where Jacobson and Bennett JJ said:

There is no limitation in s 503A(2)(c). If the Minister were required to choose between divulging the information and avoiding the decision, there would be a direct or indirect requirement to divulge or communicate the information in order to make the decision. That clearly was not the intention of the legislature in promulgating s 503A and the scheme there provided. Indeed, it is inconsistent with the operation of it. Regard may be had to the practical context in which the decision maker must consider whether to exercise the power (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (‘Miah’) at [31] per Gleeson CJ and Hayne J). The scheme, as pointed out by Gray J in Evans (at [13]) was to remove the entitlement to natural justice or procedural fairness in respect of specific, defined information for a person who is subject to the application of the character test in relation to the consideration of the cancellation of an existing visa, or in relation to the application for a visa. The obligation to afford common law natural justice or procedural fairness is controlled by the statutory framework but exclusion must be made clear in direct terms Miah at [43] per Gleeson CJ and Hayne J; at [90] per Gaudron J; at [126]-[128] per McHugh J; at [181] per Kirby J; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [30] and [37] per Gleeson CJ). In respect of s 503A, in our opinion, that intention is clear.

See also Dowsett J at 459 [30]. It is necessary to the conclusion in both judgments in Ball that s 503A(2)(c) relieves the Minister of a “requirement” imposed under statute or common law (and not just as a result, for example, of a coercive order of a court). The apparently narrower approach in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at 745 [92]-[95], which was considered in Ball at 470 [80] and 471 [87], cannot be followed consistently with the judgment of the Full Court in Ball.

46.    For the above reasons, the Minister would not fail to afford procedural fairness in exercising his power under [s 501C(3)] merely by not disclosing information that is subject to s 503A(2)(c). The Act is harmonious: s 501C(3)(a) does not oblige the Minister to disclose protected information as a condition of validly exercising his power … to [cancel] … under s 501(3).

44        There was a veiled suggestion that s 503A may not apply to the information in question in this case – see AWS at [17] – but for the reasons advanced by the Minister, I reject that suggestion. Moreover, the applicant did not adduce any evidence nor identify any reason to negate or contradict the basis for otherwise inferring that s 503A(2) applied to the information.

45        Once it is accepted that s 503A(2)(c) applied to the information that was redacted in the unclassified version of the Security Assessment that was given to the applicant with the Section 501C(3) Notice, there can have been no failure to comply with s 501C(3)(a), because that section could not “require” the Minister to disclose that information. Ground 2 of the amended application cannot be sustained.

Third Ground

46        In the amended application, the third ground is put as follows:

In the circumstances referred to in ground 2, the Respondent is not entitled to determine the Applicant’s request for revocation of the decision to cancel the Applicant’s visa under subsection 501C(4) of the Act.

47        This ground falls away in the face of the rejection of ground 2.

CONCLUSION

48        The amended originating application must be dismissed with costs.

Associate:

Dated:    13 May 2014