FEDERAL COURT OF AUSTRALIA

King v Minister for Immigration and Border Protection [2014] FCA 766

THE COURT ORDERS THAT:

1.    The Amended application filed on 3 June 2014 is dismissed.

2.    The Applicant is to pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    In September 2013 the Applicant, Mr Dean King, pleaded guilty to the sexual assault of a child. He was sentenced to two years imprisonment, with a non-parole period of 12 months. Mr King had previously appeared in court as a minor on three occasions; as an adult, he had appeared in court on 15 occasions and had been convicted of in excess of 25 offences.

2    On 1 April 2014 a Departmental Submission addressing Mr King’s circumstances came before the Minister for Immigration and Border Protection. The Minister signed that Submission and decided to cancel Mr King’s visa under s 501(2) of the Migration Act 1958 (Cth) (“Migration Act”). The Minister was not satisfied that Mr King passed the “character test” and that the discretion conferred by s 501(2) should be exercised adversely to him. On the same date, the Minister signed a statement of reasons for his decision. That statement of reasons was provided pursuant to s 501G of the Migration Act. A copy of the reasons, but not the Departmental Submission, was provided to Mr King.

3    An Originating application was filed in this Court on 5 May 2014 seeking judicial review of the Minister’s decision. An Amended Application was filed on 3 June 2014. The Amended Application sets forth three grounds upon which such review is sought, namely:

    a failure “to give proper, genuine and realistic considerations to the protection of the Australian community”;

    a failure “to have regard to the merits of the case”; and

    the application of a “policy or rule without regard to the merits of the case”.

4    The first and second of these grounds of review, it was submitted on behalf of Mr King, warranted the proceeding being referred to a Full Bench of either three or five Judges of the Court. Success on these grounds, it was submitted, required the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256, (2004) 139 FCR 505 (“Huynh”) to be overruled. At a Directions Hearing on 9 July 2014, Counsel for Mr King was informed that reservation was then expressed as to whether it would be necessary to confront any question as to the correctness of the decision in Huynh. The parties were advised that no decision would be made to have the proceeding referred to a Full Bench in advance of the hearing. A final decision on that question was, accordingly, deferred until the hearing itself when more detailed attention could be given to the reasons provided by the Minister and the three grounds of review. That final hearing took place on 14 July 2014.

5    It is now concluded that it is not appropriate for the matter to be referred to a Full Court and that the Amended Application should be dismissed with costs. Any question as to the correctness of the decision in Huynh need not be resolved. None of the three grounds of review, it is respectfully concluded, have any merit.

Sections 501 and 501G

6    Section 501 of the Migration Act relevantly provides:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate - natural justice applies

…

(2)    The Minister may cancel a visa that has been granted to a person if:

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

    (b)    the person does not satisfy the Minister that the person passes the character         test.

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

(aa)    the person has been convicted of an offence that was committed:

        (i)      while the person was in immigration detention; or

    (ii)      during an escape by the person from immigration detention; or

    (iii)      after the person escaped from immigration detention but before         the person was taken into immigration detention again; or

…

(c)    having regard to either or both of the following:

(i)    the person's past and present criminal conduct;

(ii)    the person's past and present general conduct;

the person is not of good character; or

...

Otherwise, the person passes the character test .

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

(a)    the person has been sentenced to death; or

(b)    the person has been sentenced to imprisonment for life; or

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness     of mind or insanity, and as a result the person has been detained in a facility     or institution.

…

7    Section 501G(1) relevantly provides as follows:

Refusal or cancellation of visa—notification of decision

(1)    If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

(a)    refuse to grant a visa to a person; or

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

the Minister must give the person a written notice that:

(c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non‑disclosable information) for the decision;

…

(4)    A failure to comply with this section in relation to a decision does not affect the validity of the decision.

Section 25D of the Acts Interpretation Act 1901 (Cth), in turn, operates upon s 501G(1)(e) and provides as follows:

Content of statements of reasons for decisions

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

Section 501 – the relevance of matters surrounding the offence?

8    Section 501 has potentially given rise to some division of opinion between decisions of the Full Court of this Court differently constituted. That difference centres upon the relevance of an individual’s circumstances to the manner in which the discretion conferred by s 501 is to be exercised. For present purposes, attention may be confined to the 2004 decision in Huynh and to the subsequent Full Court 2014 decision in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, (2014) 307 ALR 49.

9    It was this potential divergence of views which occasioned the application made on behalf of Mr King to have the matter referred at the outset to a bench of three (or possibly) five Judges of this Court. This was considered on behalf of Mr King to be a preferable course to any adverse decision being the subject of an appeal.

10    In Huynh the applicant was a Vietnamese national who had been sentenced to two years imprisonment for supplying heroin. Her visa had been cancelled pursuant to s 501. It was concluded by a majority that no obligation arose under the Migration Act to take into account the remarks of the sentencing judge. In allowing an appeal, Kiefel and Bennett JJ relevantly concluded:

Whether a relevant consideration

[71]    With respect to his Honour, the fact of possession of a criminal record, the reason why a person does not pass the character test, does not of itself render the circumstances surrounding the offences committed, and the reasons for the sentences imposed for them, relevant considerations to the exercise of the Minister’s discretion. A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40 per Mason J.

[72]    The Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a person’s visa. The nature of the minister’s discretion under s 501 of the Act has been considered in a series of cases…

…

[75]    His Honour the primary judge’s approach, in our respectful view, seeks to import into the character test considerations not required by the Act and then merges that test with the discretion to be exercised by the Minister. Consideration of matters surrounding the offences the subject of the criminal record is not relevant to a decision whether a visa holder passes the character test, in the circumstance where they hold a substantial criminal record as defined. It follows as a matter of course. Even if it were relevant, the question as to whether they pass the character test has been answered at the point where the Minister may exercise the discretion given by the section.

[76]    The remarks of the sentencing judge and of the Court of Criminal Appeal as to the extent of the respondent’s involvement in the drug offence in question only become necessary to the Minister’s consideration if there is some obligation, on the Minister’s part, to take that matter into account in each case. No such obligation arises from s 501. Nor, in our view, can it be said that there is some general obligation to take account of what is said by the courts on these occasions. It is for the Minister to determine, in the exercise of the discretion given by the section, whether they assume importance in a particular case. It follows in our view that neither the topic referred to by his Honour the primary judge nor what the courts had to say about it can be regarded as relevant considerations in an administrative law sense.

Wilcox J dissented. His Honour relevantly concluded at 517:

[43]    It is plainly within the subject matter, scope and purpose of the Act that, in determining how to exercise the discretion conferred by s 501(2), the Minister should have regard to the nature of the person’s offence. This is an essential step in assessing the degree of criminality involved in the offence and, therefore, its significance as an indicator of the person’s character and the desirability or otherwise of excluding the person from Australia. However, it is for the Minister, as the statutory decision-maker, to determine what information about the circumstances of the offence — that is, on what matters and to what level of detail — he or she wishes to receive in order to exercise the relevant statutory discretion…

The Minister’s exercise of discretion was upheld. This decision, it was said on behalf of the Minister, has been approved by the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50, (2006) 228 CLR 566 (“Nystrom”). It was there unsuccessfully contended that the cancellation of a transitional (permanent) visa was vitiated by reason of a failure to have regard to (inter alia) the fact that the claimant also held an absorbed person visa. The approval of the decision in Huynh emerged, so it was submitted, from the following conclusion of Heydon and Crennan JJ:

[127]    In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh the majority of the Full Federal Court held that, given the breadth of s 501, it is not possible to imply into the Act “some obligation on the Minister's part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed”.

[128]    Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As Ministerial Direction No 21 makes clear, the Minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community.

[129]    In these circumstances where Mr Nystrom holds two visas, each of which confers the same substantive rights, in cancelling one the Minister is not bound to take into account the “nature” of the other. This is because there was no consideration relevant to Mr Nystrom's Absorbed Person Visa which was not relevant to and considered when the Minister cancelled his Transitional (Permanent) Visa. Thus, there has been no failure to take account of relevant considerations. Section 501F(3) confirms that conclusion.

Gleeson CJ agreed with Heydon and Crennan JJ: [2006] HCA 50 at [1], (2006) 228 CLR 566 at 571.

11    In NBMZ, supra, the Applicant was a citizen of Iran who had been assessed as a refugee by an Independent Protection Assessor. The Minister had nevertheless there refused to grant him a protection visa by reason of s 501(6)(aa). But that decision was set aside. It was concluded, inter alia, that the Minister had failed to take into account the legal consequences flowing from his decision, namely the prospect of indefinite detention. In so concluding, Allsop CJ and Katzmann J made the following obiter observations in respect to what their Honours referred to as “other aspects of the decision”:

[26]    If the particular circumstances of the applicant were correctly to be seen as mandatory in the present case, not only did the Minister fail to consider the legal consequence of refusal (indefinite detention) but he also failed to give proper consideration … to the merits of the case before him. To do so, on this hypothesis, he would be required to genuinely consider whether he should refuse a protection visa to a person who feared for his life, and whether that person should be detained indefinitely, because he had committed the offence for which he was convicted, in the circumstances in which he did.

[27]    The acceptance of this approach may require a reconsideration of the views of the majority in Huynh at [71]–[76] and whether the views of Wilcox J in dissent at [43]–[46] and [50]–[56] are not preferable.

The third member of the Court, Buchanan J, made the following observations in respect to the decision in Huynh:

[153]    In NBNB I have discussed in greater detail a submission made by the Minister in that case (but not in the present case) to the effect that the Minister is not obliged to take into account either the circumstances in which a visa applicant committed criminal conduct, nor the consequences (for example, detention) of a decision to refuse a visa. The submission was based upon a judgment of a Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505… (Huynh). As a result of that discussion I concluded that Huynh does not detract from the principle distilled in SZJSS that it is not permissible to ignore the merits of a particular case in order to give effect to a rule or policy. The merits of a particular case may or may not extend to consideration of the conduct which causes a visa applicant to fail the character test. In the present case the Minister did enter that territory because he made judgments about the applicant’s conduct in [28] of the reasons. Furthermore, it will always be necessary, in my respectful opinion, to proceed upon a proper understanding of the statutory scheme and the legal consequences for the applicant of the decision to be made about the visa application. I will not add further to that discussion in the present judgment but my views apply equally to the present case.

Senior Counsel for Mr King also relied upon the decision in Nystrom and relied upon, in particular, the following observations – again by Buchanan J – in NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39, (2014) 307 ALR 90 at 122:

[121]    In my respectful opinion, Nystrom should not be read as approval of any general proposition that the minister need pay no attention to the consequences of a decision to cancel a visa.

12    Given this potential divergence of views, it may well be appropriate – in an appropriate case – for a Full Court to revisit the decision in Huynh.

The reasons to be provided – s 501G(1)(e)

13    Whether or not the present proceeding is an appropriate vehicle in which to re-consider Huynh depends upon a proper understanding of both:

    the Departmental Submission; and

    the reasons provided by the Minister pursuant to s 501G(1)(e).

The “reasons” provided by the Minister pursuant to s 501G(1)(e) must comply with the requirements imposed by s 25D of the Acts Interpretation Act. Section 25D, it has been said, is a remedial provision and is not to be construed narrowly or technically: Dalton v Commissioner of Taxation (1985) 7 FCR 382 at 39 per Lockhart J. But it is not a section which imposes an obligation to deal with every argument that may have been raised in a proceeding or with every possibility that could be adverted to: Dornan v Riordan (1990) 24 FCR 564 at 567 per Sweeney, Davies and Burchett JJ. A failure to comply with s 501G, by reason of s 501G(4), “does not affect the validity of the decision”.

14    Section 501G was the subject of consideration by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56, (2003) 216 CLR 212 (“Ex parte Palme”). In the course of concluding that a failure to discharge the obligation imposed by s 501G to provide reasons subsequent to the making of a decision did not invalidate the decision made, Gleeson CJ, Gummow and Heydon JJ there further observed as follows that a failure to comply with s 501G cannot be employed to establish jurisdictional error:

[48]    The visa cancellation decision may be reviewed in this Court for jurisdictional error. Such error may be found from what is disclosed by reasons provided under s 501G(1)(e). Failure to provide reasons may also be reviewed in this Court and compliance by the Minister with the statutory duty may be ordered. The reasons then provided may furnish grounds for prohibition under s 75(v) in respect of the visa cancellation decision. But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons. There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error.

But the Minister’s statement of reasons may nevertheless be relied upon to expose what the Minister considered to be relevant to the exercise of the discretion conferred by s 501. Thus, in the context of reviewing a decision of the Administrative Appeals Tribunal, in FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [90] Crennan and Bell JJ observed that “a tribunal’s identification of what it considered to be relevant matters may demonstrate that it asked itself the wrong question… Equally, it may demonstrate that a tribunal has misconstrued its functions and powers to decide, by taking into account matters which are irrelevant given the language of the empowering provision and the scope and purpose of the whole Act”.

The grounds of review – jurisdictional error?

15    If any consideration as to the constraints imposed by the majority decision in Huynh be presently left to one side, it may be accepted that each of the grounds of review relied upon in the Amended Application could – if made out – establish jurisdictional error. Although it is unnecessary to canvas the principles to be applied in any great detail, the basic principles underlying Mr King’s case should be briefly set forth.

16    The need to establish jurisdictional error arises by reason of s 476A(2) of the Migration Act which relevantly confines the jurisdiction of this Court presently being exercised to “the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution”.

17    Those errors which may go to an administrative decision-maker exceeding the jurisdiction conferred have not been exhaustively defined. But some indication as to the breadth of those errors which may constitute jurisdictional error were explored in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323. Gaudron J there addressed the issue as follows:

[41]    For the purposes of mandamus and prohibition, a Tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the Tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be “an actual failure to exercise jurisdiction”. On the other hand, there is said to be a “constructive failure to exercise jurisdiction” when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.

McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) addressed the issue as follows:

[82]    It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [(1995) 184 CLR 163 at 179], if an administrative tribunal (like the Tribunal)

“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.

18    As to the first ground of review, necessary caution must be exercised whenever an applicant seeks to maintain a submission that “proper, genuine and realistic consideration” has not be given to a particular case. That phrase, it has been repeatedly recognised, potentially conceals an impermissible challenge to the merits of a decision rather than a challenge to whether the decision has been made in accordance with law: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65], (2001) 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ; Anderson v Director-General of the Department of Environmental and Climate Change [2008] NSWCA 337 at [56], (2008) 251 ALR 633 at 650 to 651 per Tobias JA (Spigelman CJ agreeing).

19    The merits of an administrative decision are generally left to the decision-maker; but whether a decision-maker has made a decision in accordance with law is properly the task of the Court to resolve. Subject to a proper identification of those considerations which must be taken into account, a failure to take relevant considerations into account may establish jurisdictional error: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [69] to [71] (citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2013) 206 CLR 323); Aporo v Minister for Immigration & Citizenship [2008] FCA 102 at [31]; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [27], (2010) 115 ALD 303 at 309; SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 at [114],(2010) 187 FCR 109 at 140.

20    The second ground of review is, with respect, but a different way in which to express the proposition that an administrative decision-maker fails to exercise a statutory discretion in accordance with law if a relevant consideration is not properly taken into account or if a rule of policy is applied without regard to the merits of the individual case.

21    The third ground of review asserts an impermissible application of a rule of policy at the expense of a proper consideration of the merits of Mr King’s case.

22    Those entrusted with a statutory discretion, it may be accepted, are to exercise that discretion by reference to those considerations which are either expressly set out in the statute itself or those considerations which may be necessarily implied: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. In exercising such a discretion, there is no impediment to a general policy being applied, provided the policy is consistent with the statute itself and provided that the policy is not applied to the exclusion of a proper consideration of the merits of the individual case: Elias v Commissioner of Taxation [2002] FCA 845, (2002) 123 FCR 499. Hely J there relevantly observed at 506 to 507:

[34]    The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case…

See also: Cummeragunga Pty Ltd (In Liq) v Aboriginal and Torres Strait Islander Commission [2004] FCA 1098 at [156], (2004) 139 FCR 73 at 92 per Jacobson J; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 at [224] per Buss JA (Wheeler and Pullin JJ agreeing). Many examples can be provided in which an applicant has argued that an exercise of discretion has miscarried by reason of a decision-maker inflexibly applying a policy at the expense of the merits of an individual case. Thus, but one example is provided by the decision in Gough v Southern Queensland Regional Parole Board [2008] QSC 222 where judicial review was successfully sought in respect to a decision of the Respondent Parole Board. Mr Gough had been sentenced to four and a half years imprisonment for sexual offences. He successfully argued that the Board had inflexibly applied a policy to refuse parole where a prisoner had not completed recommended programs. In so concluding, Applegarth  J said:

[71]    The reasons for decision of a body such as the Board should not be overzealously scrutinised in a search for error. However, in circumstances in which the Board’s decision turned upon what were said to be outstanding intervention needs and the contention that the applicant’s relapse prevention plan did not adequately address the Board’s concerns, it is significant that the Board apparently did not consider why the applicant had been unable to complete the programs that it recommended. The Board stated that it was “not convinced” that the applicant had sufficiently responded to its major concerns and it considered that the applicant did not provide it with “an adequate relapse prevention plan”. The reasons for these conclusions are sparse, to say the least. The Board did not address in its statement of reasons the content of the applicant’s relapse prevention plan, or address in any detail the matters in it and in the applicant’s submission that were in his favour.

[72]    When regard is had to the reasons as a whole, and without subjecting them to excessive and unfair textual analysis, their substance is that the Board refused to find that the applicant was an acceptable risk to the community if released to parole because it required the additional assurance that would be forthcoming if the applicant underwent the recommended programs. It reached this conclusion apparently without having any regard as to why the applicant had yet to complete those programs, and that their completion presumably may have enhanced the quality of the applicant’s relapse prevention plan. The Board did not address whether its concerns and doubts that the application “may not be an acceptable risk” could be met by imposing a condition of parole that the applicant undertake the recommended programs in the community.

The inflexible application of a policy by a decision-maker may constitute jurisdictional error: Jackson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203 at [20], (2003) 75 ALD 643 at 647 to 648 per Lee, Carr and Moore JJ.

23    The manner in which the grounds of review are expressed, and the degree of overlap between each of these grounds, are echoed in the following observations of French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, (2010) 243 CLR 164 at 174 to 175:

[26]    In Khan v Minister for Immigration and Ethnic Affairs [(1987) 14 ALD 291], Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the ADJR Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister’s delegate was required to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.”

Their Honours thereafter contrasted the scope of judicial review permitted by ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) with the more confined scope of judicial review permitted under Part 8 of the Migration Act (as amended from time to time) and cited with approval ([2010] HCA 48 at [30], (2010) 243 CLR 164 at 175 to 176) the observations of Basten JA (with whom Allsop P agreed) in Swift v SAS Trustee Corporation [2010] NSWCA 182 as follows:

[45]    The language of “proper, genuine and realistic consideration” was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethic Affairs (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review….

Basten JA went on to observe:

[45]    …If it is demonstrated in a particular case that an administrative decision-maker has failed to address a claim properly made, or has failed to identify the statutory power under which the claim should properly be disposed of, there will be a constructive failure to exercise jurisdiction. Relief will be available accordingly. Thus, “to fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [the applicant] natural justice”…

See also: SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 at [24] per Siopis, Perram and Davies JJ. It was presumably with regard to both the observations of Gummow J in Khan v Minister for Immigration and Ethic Affairs (1987) 14 ALD 291, and those of Basten JA in Swift, supra, that the draftsman of the present Amended Application drafted grounds 2 and 3.

24    It should, perhaps, be further noted that in placing reliance upon the observations of Buchanan J in NBNB that Nystrom was not to “be read as approval of any general proposition that the minister need pay no attention to the consequences of a decision to cancel a visa”, Senior Counsel for Mr King referred to the fact that in NBNB, Buchanan J extracted the above observations of French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in SZJSS and continued:

[124]    In Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713, Gummow J emphasised the necessity to avoid “perfunctory and cursory” consideration of the merits of an application requiring a decision under the Act. It was relevant to his Honour’s analysis in that case that:

… in a serious respect, the merits may not properly have been understood when they were evaluated in the light of policy.

[125]    Notwithstanding the decisions to which the Minister referred in the supplementary written submissions, it is necessary in my respectful view for there to be proper attention to the legal and practical merits of an application when any relevant policy considerations are brought to bear.

[126]    A central defect in the present case (as in NBMZ) is that the Minister failed to pay regard to some critical legal consequences of his decisions. Those consequences, in my view, may not be ignored or put aside as ones which did not need to be understood and taken into account.

Such comments only further reinforce the need, in an appropriate case, for a Full Court to consider the correctness of the decision in Huynh. But, for present purposes, it is sufficient to apply each of the grounds of review to the reasoning process of the Minister set forth in his statement of reasons.

The matters placed before the Minister and the reasons he provided

25    Each of the three grounds of review relied upon by Mr King required consideration to be given to:

    the matters in fact placed before the Minister for the purposes of him giving consideration to whether the circumstances giving rise to the discretion conferred by s 501 had arisen and the manner in which any discretion was to be exercised; and

    the reasons the Minister provided to Mr King pursuant to the requirement imposed by s 501G(1)(e).

There were significant differences in the information placed before the Minister in the Departmental Submission as opposed to the information set forth in the reasons for decision.

26    Given the fact that:

    the Minister personally signed both the Departmental Submission and the statement of reasons provided pursuant to s 501G;

and the fact that:

    both the Departmental Submission and the statement of reasons were both dated 1 April 2014;

no conclusion is open other than that there was a single decision-making process pursued by the Minister on 1 April 2014. It would be artificial in the extreme to confine any consideration of the information taken into account by the Minister, when making his decision in respect to Mr King, to only that information contained within his statement of reasons. But to so conclude says nothing as to those findings of fact which the Minister considered “material” to the decision in fact reached or the conclusions reached by the Minister upon the basis of those “findings on material questions of fact” as set forth in his statement of reasons. The Departmental Submission, of course, served a very different purpose to the statement of reasons prepared in accordance with s 501G.

27    Far greater detail was set forth in the Departmental Submission than in the reasons provided pursuant to s 501G. Not surprisingly, Senior Counsel for Mr King sought to place considerable emphasis upon the selection from the array of information set out in the Departmental Submission of that more limited information which the Minister considered to be “material” to his exercise of discretion to cancel Mr King’s visa. By making the findings of fact set forth in his statement of reasons, it was said, on behalf of Mr King in oral submissions, that the Minister “had nailed his colours to the mast”. Other than in respect to the Minister’s compliance with the requirement to “refer to the evidence or other material” on which the findings of “material questions of fact” was based, it was the case advanced on behalf of Mr King that there had been compliance with the requirements imposed by s 501G(1)(e). Other findings of fact may well have been made upon the more extensive information set forth in the Departmental Submission – but the fact that such other findings were not made, so it was submitted, only served to emphasise the findings made in the statement of reasons and thereby findings “material” to the decision made to cancel the visa. It was that process of selection, and the process of making those findings set forth in the statement of reasons, which it was said exposed the Minister’s reasoning process and the factual basis upon which he proceeded.

28    The difference in the content of the information set forth in the Departmental Submission as opposed to the reasons provided thus, potentially, assumed some importance.

The Departmental Submission -v- The statement of reasons

29    The Departmental Submission is a document of some 12 pages in length together with 17 Attachments. The statement of reasons is a comparatively shorter document of less than 3 pages in length.

30    The Departmental Submission was divided into a number of different parts, being titled as follows:

    Part A: Immigration Background;

    Part B: Notification to Visa Holder/Procedural Fairness;

    Part C: Consideration of Visa Cancellation – The Character Test;

    Part D: Consideration of Visa Cancellation – Exercise of Your Discretion; and

    Part E: Evidence or other Material Referred to in this Paper.

Within Part D, the Departmental Submission separately addressed what it identified as follows:

    Criminal conduct;

    Mitigating factors and risk of re-offending;

    Ties to Australia;

    International obligations; and

    Other considerations.

31    Irrespective of the further information and detail set forth in one or other of the Attachments, the Departmental Submission sets forth in its text (inter alia):

    the fact of Mr King’s conviction in September 2013 and an extract from the sentencing remarks of the trial judge which referred to the circumstances in which the offence took place;

    the fact of Mr King’s previous criminal history, including an account that those convictions were for “property offences, stealing, robbery, break and enter and drug related offences”; and

    comments made by the sentencing judge in respect to Mr King’s rehabilitation, including comments directed to “the context of this particular offence” and “the view that Mr King does not require any treatment for sex offending while he is in custody”.

The Departmental Submission also:

    informed the Minister that Mr King had been sent a letter in May 2008 “advising him of the provisions of section 501 of the Migration Act and warning him that … any further criminal convictions could result in consideration of the cancellation of his visa…”; and

    expressed the view that the Minister was “free to consider that even if Mr King has made some progress to rehabilitation, in light of his frequent offending over a number of years and his failure to benefit from previous attempts to provide him with assistance in the community, there remains a risk that Mr King will reoffend [and] that if he does so he may cause serious harm to members of the Australian community…”.

Further information is set out, including the fact that Mr King arrived in Australia when he was six months of age, his “mild intellectual retardation” and the ties he has formed with his foster parents.

32    In contrast to the Departmental Submission, the statement of reasons provided pursuant to s 501G(1)(e) was separately divided into two parts, being:

    Character test; and

    Discretion.

The Minister’s statement of reasons in respect to the former matter provided as follows:

CHARACTER TEST

3.    On 2 September 2013 Mr KING pleaded guilty in the District Court of New South Wales to one count of aggravated sexual intercourse with a child between 14 and 16. On 3 September 2013 he was sentenced to two years imprisonment for this offence.

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

As to the latter matter, the statement of reasons provided (in part) as follows:

DISCRETION

5.    Having found that Mr KING does not pass the character test and having assessed the information set out in the Issue Paper and attachments, I considered whether to exercise my discretion to cancel Mr KING’s visa. I was mindful of the Government’s commitment to using s501 of the Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens.

There thereafter followed a brief reference to topics identified as follows:

    Criminal conduct;

    Mitigating factors and risk of re-offending;

    Ties to Australia;

    Bests interests of Minor Children;

    International Obligations; and

    Other Considerations.

The exposition in respect to these topics was considerably briefer than that set forth in the Departmental Submission. The statement of reasons did not contain any of the Attachments. Again, and in contrast to the Departmental Submission, the statement of reasons did not (for example) set forth:

    the prior criminal history of Mr King or the nature of those offences;

    the sentencing remarks of the trial judge.

The reasons expressed the conclusion finally reached by the Minister as follows:

CONCLUSION

19.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr KING.

20.    In reaching my decision I concluded that Mr KING represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs any countervailing considerations, including Mr KING’s ties to Australia, any difficulties he may face when he is returned to New Zealand and any distress that will be experienced by his foster family and relatives.

21,    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr KING’s Class TY, Subclass 444, Special Category (Temporary) visa under s 501(2).

But what is meant by paragraph [19] is elusive.

33    Clearly enough, the two “matters” there identified were not the only “matters” taken into account because the paragraph refers to the “matters” taken into account “including” the two mentioned. Further uncertainty is occasioned by the reference to “all other evidence available to me”. What that “evidence” was and what “evidence” was in fact “available” to the Minister is unstated. Perhaps it was the “evidence” contained within the Attachments to the Departmental Submission. Perhaps it was the information attached to a letter forwarded to Mr King on 16 September 2013 informing him of the intention to consider cancelling his visa pursuant to s 501. Although s 25D of the Acts Interpretation Act merely imposes a requirement that a statement of reasons “refer to the evidence”, such nebulous statements as are made in paragraph [19] fall well short of that requirement. A person entitled to receive a statement of reasons which “refers to the evidence” should not be left to make a guess as to the “evidence” relied upon. If in the present case that “evidence” was that set forth in the Attachments, Mr King has not been provided with a copy of the Departmental Submission and its Attachments. He has thus no means of knowing if the findings of “material questions of fact” are susceptible of being founded upon the undisclosed “evidence”. But no application is made in the present proceeding for an order compelling the Minister to comply with the requirement imposed by s 501G to provide reasons for his decision. Irrespective of any application for such an order, the statutory requirements imposed by s 501G and s 25D remain. Compliance should not be dependent upon a deficiency being remedied upon an application for an order. A failure on the part of the Minister to comply with statutory obligations is no trivial matter. A failure has the necessary consequence that a person affected is not as fully informed as the Legislature has insisted he should be and this Court is deprived of an ability to scrutinise the reasons provided with a view to ensuring that a significant statutory power has been exercised in accordance with law. And, although no express reference is made in the statement of reasons to the Departmental Submission – and presumably a reference deliberately not included – it would be unrealistic to conclude that the Minister did not have regard at least to that Submission when making his decision.

34    The fact that there are differences – including significant differences – between the Departmental Submission and the statement of reasons is, however, not surprising. Each document serves a different purpose. The Departmental Submission cannot be regarded as the “reasons” required to be provided pursuant to s 501G(1)(e): Ex parte Palme [2003] HCA 56 at [40], (2003) 216 CLR 212 at 224 per Glesson CJ, Gummow and Heydon JJ.

35    The Departmental Submission is a document having no statutory force; it is a document presumably prepared by a Departmental officer with the objective of putting before the Minister all of that material which the officer considers may be of relevance (or potential) relevance to the decision to be made. It is “an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions” : Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 65 per Brennan J. See also: (1986) 162 CLR 24 at 30 to 31 per Gibbs CJ. The statement of reasons, by way of contrast, serves a different purpose. Reasons required to be provided pursuant to a statutory obligation, in general, are designed to inform an affected person of the basis upon which a decision-maker has proceeded and the reasons for reaching a stated conclusion: Habib v Minister for Foreign Affairs and Trade [2010] FCA 1203 at [52] to [55]. In Ex parte Palme [2003] HCA 56 at [104], (2003) 216 CLR 212 at 242, Kirby J observed in the present statutory context that the “starting point in giving meaning to the obligation in s.501G(1)(e) is an appreciation of the importance of reasons in administrative decisions generally and in the Minister’s decision in this case in particular”. His Honour further observed that the requirement to provide reasons is a discipline upon decision-makers and encourages good administration: [2010] HCA 56 at [105] to [106], (2003) 216 CLR at 242.

36    In the present statutory context, a principal purpose served by the statutory requirement imposed by s 501G(1)(e) is self-evidently to inform “the person” affected by the exercise of discretion of the “reasons” for the decision. Such is the purpose of providing that “person” with “a written notice”. “The purpose of s. 25D appears to be to enable a person affected by a decision for which reasons must be given to be supplied with findings and a reference to the evidence or other material on which they were based so that he may shape the course of his future conduct accordingly”: Dalton v Deputy Commissioner of Taxation (1986) 160 CLR 246 at 250 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ. Its purpose is ensure that Mr King “can identify with certainty what reasons the [Minister] had for reaching [his] conclusion and what facts [he] considered material to that conclusion”: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [69], (2001) 206 CLR 323 at 346 per McHugh, Gummow and Hayne JJ. The “reasons” require an explanation connecting “the findings on material questions of fact” to the ultimate outcome: cf. Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 at [46] per Basten JA (Ward JA and Bergin CJ in Eq agreeing). Section 25D, when it was inserted by way of amendment in 1984, was “designed to achieve substantially the same objects” as s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 28 of the Administrative Appeals Tribunal Act 1975 (Cth): Dalton v Commissioner of Taxation (1985) 7 FCR 382 at 392 per Lockhart J (affirmed on appeal: Dalton v Deputy Commissioner of Taxation (1986) 160 CLR 246).

37    The purpose sought to be achieved by s 501G(1)(e) and s 25D would be considerably frustrated if the “reasons” provided did not connect the “findings on material questions of fact” set forth in the “written notice” to the decision in fact reached. The purpose would not be achieved if Mr King had to have recourse – not to the written notice provided to him but – to some other document in order to search for the “findings” which may support the decision. Of equal importance, but not a point relied upon by Mr King, is the frustration of the legislative purpose if there was no satisfactory “reference” to the evidence upon which the findings were based. That which may constitute an adequate “reference” to the evidence may nevertheless be presently left to one side. But the Minister’s present statement that he “considered all relevant matters” and “all other evidence” falls well short of putting Mr King in any position whereby he can, in turn, “connect” in any meaningful manner the “findings” to the “evidence”. Each of the trinity of elements referred to in s 25D serve an important function. None can be glossed over.

The grounds of review

38    Notwithstanding the flexibility with which the submissions were advanced on behalf of Mr King in support of his application that the present proceeding be referred to a court constituted by either three or five Judges of the Court, the facts of the present case and the grounds of review relied upon give rise to more confined questions in need of resolution. Those submissions referred to “the mandatorily relevant considerations of the nature of the offence(s) giving rise to the cancellation power” and to the “specific factors personal to a visa holder such as the circumstances surrounding his or her offences being ‘relevant considerations’ in the Peko-Wallsend sense…”. In Huynh, Kiefel and Bennett JJ identified as considerations not relevant to the exercise of the discretion “the circumstances surrounding the offences committed, and the reasons for the sentences imposed for them…”: [2004] FCAFC 256 at [71], (2004) 134 FCR 505 at 522. It was these comments, in particular, which Senior Counsel on behalf of Mr King submitted required the decision in Huynh to be overruled. But the grounds of review confined more narrowly the matters which it was said the Minister did not have regard to, or did not properly have regard to. Even so confined, the correctness of the decision in Huynh loomed ever ominously in the background.

39    The first of the three grounds of review relied upon in the Amended Application asserts a failure on the part of the Minister “to give proper, genuine and realistic consideration to the protection of the Australian community”. The two “particulars” of that ground of review are stated to be:

    a failure “to consider the circumstances of the offence committed by the applicant…”; and

    a failure “to consider the risks of the applicant committing a similar offence”.

These “particulars” are to be construed with reference to the fact that the offence, which was the occasion for the Minister exercising the discretionary power conferred by s 501, was of aggravated sexual intercourse with a child; the prior offences in respect to which Mr King had been charged and sentenced – according to the Departmental Submission – were “property offences, stealing, robbery, break and enter and drug related offences”.

40    On any view of the manner in which the Minister proceeded, circumstances “personal” to Mr King were in fact taken into account by the Minister.

41    If other circumstances “personal” to Mr King be left to one side, and if attention is focussed on “the circumstances surrounding the offence”, the statement of reasons provided by the Minister address this issue on two occasions. Those “circumstances” are first addressed in paragraphs [3], [6] and [10] of the Minister’s reasons for decision. And the prospect of Mr King re-offending were addressed under the heading “Mitigating factors and risk of re-offending”. Paragraph [3], perhaps, bears repetition. It provided as follows:

3.     On 2 September 2013 Mr KING pleaded guilty in the District Court of New South Wales to one count of aggravated sexual intercourse with a child between 14 and 16. On 3 September 2013 he was sentenced to two years imprisonment for this offence.

Paragraph [6] provided as follows:

Criminal conduct

6.    Mr King has been convicted of sexual offence against a minor. The offending was aggravated as the minor was under the influence of alcohol at the time. I consider this offence to be very serious. The sentence of two years imprisonment that Mr KING received for this offence is a further indication of the seriousness of his offending.

The “Mitigating factors and risk of re-offending” were thereafter addressed as follows:

9.    I accept that Mr KING has a degree of intellectual impairment and that this has been a contributing factor to his offending. I have had regard to the contention made on Mr KING’s behalf that, as a result of this impairment, he is more likely to offend when he is away from the supervision of his foster family.

10.    I note that Mr KING has been in foster care since he was 13 years old and he has continued to regularly offend during the intervening 15 years and that his sexual offence was committed when he was residing in a caravan in front of the premises of his foster family.

11.    I consider that even if Mr KING remains under the supervision of his foster family, there is a risk that Mr KING will continue to offend.

12.    Mr KING continues to suffer from an intellectual impairment and there remains a risk that he will reoffend and if he does reoffend serious harm may result to members of the community.

These references, it may readily be accepted, are but a general reference to the risk of re-offending; they stop short of findings in respect to whether Mr King will commit any further sexual offences. The reference in the statement of reasons to the likelihood that Mr King will again “offend” in paragraphs [9] and [11] are but references to the prospect of further criminal conduct being engaged in by Mr King, including (but not specifically addressing) the prospect of further sexual offences being committed.

42    To the extent that it is submitted on behalf of Mr King that the Minister was required to take into account – as a consideration he was “bound” to take into account (Peko-Wallsend, supra) – circumstances relevant to the offence which occasioned the exercise of the discretion, those “circumstances” as particularised were plainly taken into account. The references in paragraphs [3], [6] and [10], it is concluded are sufficient. Further detail need not be provided. And, the risk of Mr King re-offending was also a matter taken into account in paragraphs [9] to [12]. It is not considered necessary for the Minister to have done more and to have separately made findings premised upon the different nature of his previous criminal conduct as opposed to the offence committed in September 2013.

43    It was presumably in recognition of the fact that the statement of reasons expressly addressed the “the circumstances surrounding the offence” and the risk of re-offending that the first ground of review was expressed in terms of a failure to give “proper, genuine and realistic consideration” to the “protection of the Australian community”. The more confined questions in need of resolution focus attention, not upon whether particular matters should be taken into account, but rather upon what a “proper” consideration of those matters requires.

44    The Departmental Submission unquestionably gave far more detailed attention to the two matters particularised in respect to this first ground of review, namely:

    the “circumstances of the offence”; and

    the “risks of the applicant committing a similar offence…”.

The Departmental Submission, for example, set forth:

    extracts from the sentencing remarks of the trial judge; and

    evidence in respect to Mr King’s mild intellectual impairment and the relevance of that impairment to his “offending”.

To the extent that the first ground of review can be construed as a contention that the Minister did not take into account such matters, that submission is rejected. Irrespective of the content of the statement of reasons, these were matters clearly set forth in the Departmental Submission. Notwithstanding the fact that these were matters brought to the attention of the Minister and taken into account by him, it remains the case that much of the factual material set forth in the Departmental Submission did not expressly find its way into the statement of reasons provided pursuant to s 501G(1)(e). Given the statutory requirement set forth in the “written notice” provided to Mr King, the “findings on material questions of fact” (and the assumption that the statement provided does in fact comply with the requirements imposed by ss 501G(1)(e) and 25D), it may be assumed that the only findings “material” to the decision reached were those set forth in the statement of reasons.

45    The first ground of review, however, is rejected. Assuming that the Minister was required to give consideration to “the circumstances surrounding the offence” and the risks of Mr King re-offending, those matters were taken into account. A “proper, genuine and realistic consideration” of the “protection of the Australian community”, it is concluded, does not require a greater consideration of those matters than is set forth in the statement of reasons. Such “findings on material questions of fact” as were made in the statement of reasons, supported the conclusion reached. Although further “findings” could well have been made, and more detailed “findings” made, a proper exercise of the discretion does not call for more.

46    The second ground of review employs the language of a failure on the part of the Minister “to have regard to the merits of the case…”. The “particulars” of those “merits” which it is said were not considered were:

    the “fact that the present offence was of a different character to the previous offences, and out of character”; and

    a failure “to consider what in particular was the risk to the Australian community which was ‘unacceptable’”.

The contrast in Mr King’s prior “criminal history” and the offence committed in September 2013 may be accepted. The limited reference to the prior “criminal history” in the statement of reasons stands in contrast to both the greater exposition of those offences set forth in the text of the Departmental Submission and to such further information as is contained in the 9 page list of “Convictions, Sentences and Appeals” being Attachment D to that Submission. Given the absence of any further findings being made in the statement of reasons other than that set forth in paragraph [7], it may again be assumed that such further findings as could have been made in respect to both the nature of the prior “criminal history” and the differences between the prior offences and the September 2013 offence were not findings considered by the Minister to be “material” to the basis upon which he proceeded in cancelling Mr King’s visa. Albeit with some reservation, it is concluded that this argument should also be rejected. The differences between the prior criminal offences and the September 2013 offences were not matters to which the Minister was “bound” to have regard – even assuming Huynh to be incorrectly decided; nor can any failure to have regard to those differences be construed as a failure to properly take into account the “merits” of Mr King’s case. A proper consideration of Mr King’s case, including a proper consideration of the circumstances surrounding the September 2013 offence, did not require the Minister to consider how that offence stood in contrast to Mr King’s earlier criminal conduct. Nor were such matters necessary to be taken into account when the Minister formed a view as to the “risk to the Australian community”. That assessment could be made, as it was in fact made, upon the basis of the “material questions of fact” set forth in the statement of reasons.

47    The third ground of review asserts an impermissible application of a rule of policy to the exclusion of a proper consideration of the circumstances of Mr King’s particular case. The “policy” relied upon is that set forth in paragraph [5] of the statement of reasons, namely the statement that the Minister “was mindful of the Government’s commitment to using s501 of the Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens”. The circumstances peculiar to Mr King which it is contended were not taken into account were:

    the “chances of Mr King’s latest offence being repeated”; and

    the fact that Mr King had “merely been formally warned after committing his previous offence”.

The first of these matters overlap both the first and second grounds of review. It gains no better traction when now advanced as evidencing an inflexible application of a policy. The “chances” of Mr King were in fact considered. The second particular is a reference to two letters forwarded to Mr King: the first being a letter dated 6 May 2008, headed “Formal Counselling Letter”; the second being a letter dated 31 March 2011 and bearing the same heading. The failure to refer to these letters in the statement of reasons, it is respectfully considered, throws no light (or very little light) upon whether a policy has been inflexibly applied.

48    The third ground of review is rejected.

Section 20(1A) – referral to a differently constituted court?

49    Given the conclusions reached in respect to each of the three grounds of review, it is further concluded that no occasion arises to call upon the Chief Justice to consider exercising the discretionary power conferred by s 20(1A) of the Federal Court of Australia Act 1976 (Cth) to refer the present proceeding to a court differently constituted.

50    Section 20(1A) provides as follows:

If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court.

This was a provision inserted by way of amendment in 1986. Even prior to that amendment, however, it had been concluded that the power existed to have an application for judicial review heard by a Full Court: R v Kearney; Ex parte Attorney-General (NT) (1984) 3 FCR 534 at 538 to 539 per Woodward and Neaves JJ. It is a power which has been exercised from time to time: e.g., Bond v Australian Broadcasting Tribunal (1989) 89 ALR 185; Acton Engineering Pty Ltd v Campbell (1991) 31 FCR 1. Needless to say, in the present proceeding the Chief Justice was informed as to the application quite properly made on behalf of Mr King to have the Court reconstituted. Had the consideration of the grounds of review taken a different turn during the course of the hearing or even thereafter, it may have then been necessary to give further consideration to whether the power conferred by s 20(1A) should be exercised. But events did not take a different turn.

51    Although it may readily be accepted that on some occasion the correctness of the decision of the majority in Huynh should be further considered by a Full Court of this Court, the present proceeding is not the appropriate vehicle in which to pursue the issues addressed in passing by Allsop CJ and Katzmann J in NBMZ, supra. It is not the decision in Huynh which stands in the path of success on the part of Mr King in having the Minister’s decision taken on 1 April 2014 set aside; what stands in the path of success of Mr King is the fact that the Minister did in fact take his individual circumstances as particularised into account.

52    Even if this conclusion as to the approach taken by the Minister be not accepted by Mr King, and should he wish to challenge this conclusion on appeal, his submissions as to the correctness of the decision in Huynh can still – of course – be advanced before a Full Court.

53    The application made on behalf of Mr King to have the matter referred to a Court constituted by three (or even five) judges is thus rejected.

Conclusions

54    Even if it be assumed that the Minister when exercising the discretion conferred by s 501 was bound to take into account considerations relevant to the personal circumstances of Mr King, it is concluded that those personal circumstances as particularised have in fact been taken into account. There has been no failure to consider the merits of his case and no inflexible application of any policy.

55    Each of the grounds of review, albeit expressed under the rubric of accepted grounds of review potentially exposing jurisdictional error, is – with respect – but a means of seeking further findings of fact to be made with the prospect that further findings may throw a different light upon the merits of Mr King’s case. Such further findings, it is concluded, are not necessary to be made in order for those matters relevant to Mr King’s case to be properly considered. A “proper, genuine and realistic” consideration of the facts and circumstances of his case can lawfully proceed upon the basis of the findings of fact set forth in the statement of reasons. The Minister has not applied the “commitment” to use s 501 “to protect the Australian community from harm” at the expense of a proper consideration of the merits of Mr King’s case.

56    Each of the grounds set out in the Amended application fails.

57    The Amended application is to be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The Amended application filed on 3 June 2014 is dismissed.

2.    The Applicant is to pay the costs of the Respondent.

Associate:

Dated:    25 July 2014