FEDERAL COURT OF AUSTRALIA

Mrishaj v Minister for Immigration and Border Protection [2016] FCA 456

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth) the time for making the originating application for review of a migration decision be extended up to and including 21 August 2015.

2.    The said originating application for review of a migration decision be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    On 21 August 2015, Mr Emiliano Mrishaj issued an application for an extension of time within which to issue an originating application for the review of a migration decision. The application was supported by an affidavit affirmed by a law clerk employed by the applicant’s solicitors.

2    Between 22 October 2014 and 10 June 2015, the applicant held a Class BS Subclass 801 Partner (Residence) visa (“the visa”). On 10 June 2015, the Minister for Immigration and Border Protection decided to cancel the visa pursuant to s 501(3) of the Migration Act 1958 (Cth) (“the Act”). In order to exercise that power, the Minister needed to (and did) reasonably suspect that the applicant did not pass the character test and that it was in the national interest to cancel the visa. He also decided to exercise the discretion in s 501(3) of the Act to cancel the visa. The applicant was in Albania at the time his visa was cancelled, having left Australia on or about 26 May 2015.

3    There is the facility in s 501C(4) of the Act for an applicant whose visa has been cancelled to make representations to the Minister to the effect that the Minister should revoke his original decision, and there is power for the Minister to do so if he is satisfied that the applicant does, in fact, pass the character test.

4    It seems that the applicant was advised of the Minister’s decision by letter dated 11 June 2015 and that on that day the applicant instructed his solicitors to make representations to the Minister under s 501C(4) of the Act that he revoke his decision.

5    The applicant’s solicitors made representations to the Minister by letter dated 2 July 2015. There was no response from the Minister and the applicant issued his application for an extension of time on 21 August 2015. In fact, there was no response from the Minister until after I had heard the application. At that point, the Minister advised the applicant that he had decided not to revoke his decision under s 501(3) of the Act.

6    The effect of the relief now sought by the applicant is the quashing of both decisions of the Minister.

7    There is a time limit of 35 days from the date of the migration decision in the case of an application of this nature (s 477A). In terms of the original decision made on 10 June 2015, this application is about five weeks beyond that time limit. The Minister accepts that the delay is not significant, that there is a reasonable explanation for it, and that he will not suffer any prejudice if time is extended. His principal ground of opposition to the granting of an extension of time is that the proposed grounds of challenge lack merit. In my opinion, the grounds of review raise matters of substance and time should be extended under s 477A(2) of the Act, although in the result I have reached the conclusion that the originating application should be dismissed.

The Facts

8    As I have said, the Minister’s decision to cancel the applicant’s visa was conveyed to the applicant by letter dated 11 June 2015. The applicant was sent an Issues Paper which was before the Minister at the time he made his decision, and the Minister’s Statement of Reasons. The Issues Paper referred to 23 attachments, 22 of which were provided to the applicant. Attachment X which was described as protected information under s 503A of the Act was not provided to the applicant.

9    The Issues Paper set out issues for consideration of possible visa cancellation under s 501(3) of the Act. The author of the paper said that the purpose of the paper was to seek the Minister’s decision on whether to cancel the applicant’s visa without natural justice in the national interest under s 501(3)(b) of the Act. The applicant was born in Albania on 29 December 1989. The applicant arrived in Australia on 17 August 2009 on a Class UD Subclass 976 Electronic Travel Authority. He made various applications and was granted various visas between that date and 22 October 2014 when he was granted the visa which allows him to remain in Australia indefinitely.

10    On 26 May 2015, the applicant left Australia and remained offshore at the time the Issues Paper was prepared. The applicant indicated on his outgoing passenger card that he would spend most of his 15 days abroad in Albania. The author of the Issues Paper stated that if the Minister decided to cancel the visa, then the effect of s 501F(2) of the Act is that any other visas, except a Protection visa or a visa specified in the Regulations which may have been applied for by the applicant, would be refused by operation of law. The applicant did not have any unfinalised visa applications. Furthermore, if the Minister decided to cancel the visa, then the effect of s 501F(3) of the Act is that any other visa, except a Protection visa or a visa specified in the Regulations which may be held by the applicant, would also be cancelled by operation of law. The applicant did not hold any other Australian visa.

11    Section 501(3) is set out in the Issues Paper and there is a summary of the effect of s 501(4) and (5) of the Act. The author of the Issues Paper refers to the revocation of a decision to cancel a visa under s 501(3) of the Act in the following terms:

18.    Section 501C of the Migration Act provides that, following a decision under s. 501(3) of the Migration Act to refuse or cancel a visa, the person who was the subject of the decision must 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.

19.    Mr MRISHAJ is currently offshore in Albania. As Mr MRISHAJ is offshore, he may make representations to you within seven days of being given written notice of your decision about possible revocation of your decision to cancel his visa.

12    The terms of s 501(6)(b) of the Act are set out in the Issues Paper and the Minister is referred to the information at Attachment X. The Minister is told that the information is protected from disclosure under s 503A of the Act as it has been communicated to an authorised migration officer by a gazetted agency on condition that it is treated as confidential information and the information is relevant to the exercise of a power under s 501.

13    The Minister is told that, having regard to the above material, it is open to him to reasonably suspect that the applicant has been or is a member of a group or organisation and that the group or organisation has been or is involved in criminal conduct (paragraph 23). Under the heading of “Finding”, the author of the Issues Paper states as follows:

24.    In light of the above, it is open to you to reasonably suspect that Mr MRISHAJ does not pass the character test by virtue of paragraph 501(6)(b) in that you may reasonably suspect that he has been or is a member of a group or organisation and that the group or organisation has been or is involved in criminal conduct.

14    The national interest is then addressed in the Issues Paper. In that context, the Minister is referred to the fact that on 23 January 2013 the Australian Government launched Australia’s first National Security Strategy, Strong and secure: a strategy for Australia’s national security, to provide an overarching framework to guide Australia’s security effort over a five year period. The strategy recognises that preventing, detecting and disrupting serious and organised crime is one of eight key pillars to securing the nation and its citizens.

15    The Minister’s attention is also directed to the Australian Government’s approach to serious and organised crime as set out in the Organised Crime Strategic Framework referred to on the Commonwealth Attorney-General’s website. The Minister’s attention is also directed to the National Organised Crime Response Plan 2015-2018 which is said to articulate Australia’s national response to the current threat posed by serious and organised crime. The Minister is told that in considering the national interest, he may also wish to take into account information that is protected under s 503A of the Act concerning the applicant’s membership of a group or organisation, and that the group or organisation has been or is involved in criminal conduct. Reference is made to Attachment X. The Minister is also told that in considering the national interest, he may wish to consider the fact that the applicant has a history of criminal convictions in Australia that date back to 30 May 2012. Those criminal convictions are identified. The Minister is advised that he may wish to note that the applicant’s Australian convictions are relatively minor and that as such he may wish to give very little weight to these items when coming to his decision about the national interest.

16    The Minister is advised that he does not need to give the applicant advice that consideration is being given to the possible cancellation of his visa. It is then said:

41.    However s. 501C of the Act provides that, following a decision under s. 501(3) to 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 (other than non-disclosable information) and invited to make representations about possible revocation of the decision. If Mr MRISHAJ does this, you may revoke the decision if he satisfies you that he passes the character test.

17    The Minister is then advised that he has a discretion as to whether he cancels the applicant’s visa, even if he makes a finding that it is in the national interest to cancel the visa. The Minister’s attention is directed to the strength, nature and duration of the applicant’s ties to Australia and the impediments the applicant may face if required to return to his home country.

18    In the Minister’s Statement of Reasons, he noted that the rules of natural justice and the code of procedure set out in Subdivision AB of Division 3 of Part 2 of the Act did not apply to a decision under s 501(3). He went on to say the following:

3.    … However, pursuant to s. 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, noting that the person concerned will not be provided with ‘non-disclosable information’, within the meaning of the Migration Act.

19    The Minister noted that he had had provided to him protected information under s 503A of the Act, and that that information could not be disclosed to the applicant. He said that the information was relevant in considering the character test and the national interest in relation to the applicant.

20    As to the character test, the Minister said:

7.    Based on the issues paper and information protected under section 503A which was provided by a gazetted agency as defined by s. 503A(9) at Attachment X, I reasonably suspect that Mr MRISHAJ does not pass the character test by virtue of s. 501(6)(b) in that I reasonably suspect that Mr MRISHAJ has been or is a member of a group or organisation and that the group or organisation is involved in criminal conduct.

21    The Minister went on to consider the national interest and he noted that it was reasonable to conclude that matters of national interest could include, amongst other things, the protection of the community from serious organised crime. The Minister noted the applicant’s convictions in Australia, but said that he had given the convictions very little weight in coming to his decision about the national interest.

22    The Minister turned to consider matters relevant to the exercise of his discretion. The Minister considered the applicant’s familial ties to Australia and the illness of his wife. He also considered the effect of the cancellation of the applicant’s visa on the applicant’s brother and sister. The Minister acknowledged that as the applicant was offshore, the effect of a decision to cancel his visa would be that he would not be able to travel to and re-enter Australia.

23    The Minister expressed the following conclusion:

24.    Having given full consideration to all relevant matters, I reasonably suspect that Mr MRISHAJ does not pass the character test and I find it is in the national interest to cancel his visa. I considered the countervailing considerations in this case, including his familial and social ties in Australia. I especially noted the hardship to be endured by his wife who suffers from depression. Notwithstanding, I find that the countervailing considerations in this case are outweighed by my reasonable suspicion that Mr MRISHAJ is or has been, a member of a group or organisation, and the group or organisation is suspected of being involved in criminal conduct. Therefore, I have decided to exercise my discretion to cancel Mr MRISHAJ’s Class BS, Subclass 801, Partner (Residence) visa under paragraph 501(3)(b) of the Act.

The Relevant Legislative Provisions

24    The Minister made his decision under s 501(3) of the Act which provides as follows:

(3)    The Minister may:

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

(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 refusal or cancellation is in the national interest.

25    Section 501(5) of the Act provides that the rules of natural justice and the code of procedure set out in Subdivision AB of Division 3 of Part 2 of the Act do not apply to a decision made under s 501(3) of the Act.

26    Section 501(6) of the Act sets out the circumstances in which a person does not pass the character test. It provides, relevantly:

…

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

(b)    the Minister reasonably suspects:

(i)    that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; …

27    Section 501C of the Act provides for the circumstances in which the Minister may revoke a decision made under s 501(3) to cancel a visa. It provides, relevantly:

501C    Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:

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

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

(2)    For the purposes of this section, relevant information is information (other than non disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original 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.

(3)    As soon as practicable after making the original 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 original decision; and

(ii)    particulars of the relevant information; and

(b)    except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—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 original decision.

(4)    The Minister may revoke the original 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).

(5)    The power under subsection (4) may only be exercised by the Minister personally.

(6)    If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).

28    Section 503A of the Act provides for the circumstances in which information communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and being information that is relevant to the exercise of a power under, among other sections, s 501, must not be divulged or communicated. It provides, relevantly:

503A    Protection of information supplied by law enforcement agencies or intelligence agencies

(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.

Note:    Authorised migration officer and gazetted agency are defined by subsection (9).

(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; and

(d)    if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.

(6)    This section has effect despite anything in:

(a)    any other provision of this Act (other than sections 503B and 503C); and

(b)    any law (whether written or unwritten) of a State or a Territory.

(7)    To avoid doubt, if information is divulged or communicated:

(a)    in accordance with paragraph (1)(a) or (b); or

(b)    in accordance with a declaration under subsection (3);

the divulging or communication, as the case may be, is taken, for the purposes of the Australian Privacy Principles, to be authorised by this Act.

29    This Court’s jurisdiction to consider a challenge to the Minister’s decision is conferred by s 476A(1)(b) of the Act. In order to succeed in his challenge to the Minister’s decision, the applicant must establish a jurisdictional error.

30    There are four grounds of challenge to the Minister’s decision. The applicant dealt with Grounds 1 and 2 together and I will do the same. It is convenient to deal with the grounds in reverse order.

Ground 4

31    In terms of the character test in s 501(6), the Minister purported to rely on s 501(6)(b). The applicant contended that the Minister misconstrued and misapplied this paragraph.

32    The applicant’s first submission is that, although the Minister formed a reasonable suspicion as to the membership or association limb (i.e. s 501(6)(b)(i)), he only formed a suspicion as to the involvement in criminal conduct limb (i.e., s 501(6)(b)(ii)). In other words, he did not form a reasonable suspicion as required by the Act. The applicant pointed to the difference between forming a suspicion and forming a reasonable suspicion (Queensland Bacon Proprietary Limited v Rees (1966) 115 CLR 266 at 303 per Kitto J; George v Rockett and Another (1990) 170 CLR 104 at 115-116). To support his submission, the applicant relies on the Minister’s statement in paragraph 24 of his reasons which is set out above (at [23]). I reject this submission because, read as a whole, I think the Minister’s reasons indicate that he did form a reasonable suspicion as to the involvement in criminal conduct limb.

33    The Minister’s reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272). The Minister stated the test correctly in paragraph 7 of the reasons. He said:

7.    Based on the issues paper and information protected under section 503A which was provided by a gazetted agency as defined by s. 503A(9) at Attachment X, I reasonably suspect that Mr MRISHAJ does not pass the character test by virtue of s. 501(6)(b) in that I reasonably suspect that Mr MRISHAJ has been or is a member of a group or organisation and that the group or organisation is involved in criminal conduct.

34    Furthermore, the Issues Paper which the Minister had before him set out the terms of s 501(6)(b) in paragraph 21 and contained the statements in paragraphs 23 and 24 which I have summarised or set out above (at [13]). Those statements clearly identify the test in correct terms.

35    The applicant’s second submission is that the Minister committed a jurisdictional error in that he failed to address the issues raised in s 501(6)(b). The applicant submitted that the Minister did not address whether the applicant was supportive or sympathetic in some way with the criminal conduct of the group or organisation. The applicant submitted that s 501(6)(b) required the Minister to do that because the membership or association limb should be read conjunctively and not disjunctively. In other words, the Minister’s reasonable suspicion must be that the person has been or is a member of a group or organisation, and has had or has an association with a group or organisation with the required characteristic. The applicant referred to Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 (“Haneef”). In Haneef, s 501(6)(b) was in the following terms:

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.

36    In addressing the meaning of this paragraph, the Court said (at 447-448) [130]):

Having regard to its ordinary meaning, the context in which it appears and the legislative purpose, we conclude that the association to which s 501(6)(b) refers is an association involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation. The association must be such as to have some bearing upon the person’s character. It is, of course, not necessary, to enliven the Minister's discretion to cancel the visa, that the Minister be satisfied that such an association actually exists. It is enough for the purposes of s 501(6) that the Minister reasonably suspects that the visa holder has such an association with someone else or a group or organisation which the Minister reasonably suspects has been or is involved in criminal conduct.

I reject the applicant’s submission. I think the plain and ordinary meaning of s 501(6)(b) is that the requirements of the paragraph are met if the Minister forms a reasonable suspicion that the person is either a member (or has been) or has (or has had) an association with the group or organisation. Furthermore, it is not apparent to me why the paragraph would be amended to lift the threshold to require reasonable suspicion of both membership and association. The construction of s 501(6)(b) which I think is the correct one is supported by the extrinsic material. The Explanatory Memorandum for the Bill which introduced s 501(6)(b) in its present form contained the following statement:

41.    The intention of this amendment is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. The intention is that membership of the group or organisation alone is sufficient to cause a person to not pass the character test. Further, a reasonable suspicion of such membership or association is sufficient to not pass the character test. There is no requirement that there be a demonstration of special knowledge of, or participation in, the suspected criminal conduct by the visa applicant or visa holders.

37    The applicant put a “fall-back” submission. He submitted that even if a reasonable suspicion of membership alone was sufficient, membership must involve evidence of some support or sympathy with the criminal conduct of the group or organisation. If membership did not involve that element then the character test was too broad because it would include a member of a group or organisation which unbeknown to the member was involved in criminal conduct. The applicant submitted that his approach was consistent with the approach in Haneef. I reject this submission as it is not consistent with the amendment to s 501(6)(b) and the language now used in that paragraph. Furthermore, it would not be consistent with the intention of Parliament as expressed in the Explanatory Memorandum.

38    Ground 4 is rejected.

Ground 3

39    At the heart of the challenge in Ground 3 is the submission that the applicant was given no information by the Minister which would enable him to exercise in any effective way the ability to make representations to the Minister that he should revoke his original decision. When he advised the applicant of his original decision, the Minister disclosed to the applicant his reasons and the Issues Paper with attachments other than Attachment X which is the protected information. The Minister’s decision that he had a reasonable suspicion of the matters in s 501(6)(b) was based on the protected information and that information was not disclosed in the reasons or Issues Paper. There was no disclosure of the group or organisation of which the Minister reasonably suspected the applicant to have been or to be a member. The applicant submitted that in those circumstances the opportunity to make representations that the original decision be revoked was entirely illusory.

40    The applicant submitted that, having regard to those matters, one of two alternative conclusions – each involving a jurisdictional error – followed. First, if that was the correct construction of the Act and, in particular ss 501, 501C and 503A, then the Minister proceeded on an incorrect basis involving jurisdictional error. The applicant submitted that the Minister proceeded on the basis in making his original decision that the applicant would be given an effective opportunity to make representations that the original decision should be revoked when that was not the case. The applicant referred to the passage in the Minister’s Statement of Reasons set out above (at [18]). Secondly, and in the alternative, the applicant submitted that this is not the correct construction of the Act and the Minister did not comply with the obligation in s 501C(3). The Minister was required by that subsection to give the applicant sufficient information to enable him to exercise effectively his right to make representations in support of the revocation of the original decision. In argument, the applicant submitted that he was entitled to be told of the group or organisation of which he was said to be (or to have been) a member. When asked what the Minister should have done in the circumstances, the applicant’s counsel submitted that he should have refrained from making a decision under s 501 of the Act or, in the alternative, he could have approached the gazetted agency and sought a relaxation of the condition of confidentiality.

41    The effect of the first argument was that the original decision was affected by a jurisdictional error and the circumstances for a consideration of the revocation of the decision had not arisen. The effect of the second argument is that s 501C(3) had not been complied with and the power to revoke the original decision had not been engaged.

42    The first argument is that the Minister’s original decision is affected by jurisdictional error where it is made on the basis that a person will be given an opportunity to persuade the Minister that the original decision ought to be revoked because the person passes the character test and yet the circumstances are such that, in fact, there is no prospect that the person will be able to do that. The applicant relies on the decision of the High Court in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (“Re Patterson; Ex parte Taylor”). In that case, the Parliamentary Secretary to the Minister proceeded on the basis that the person whose visa was to be cancelled would be given the opportunity of proving to the Minister’s satisfaction that he passed the character test when, in fact, because of the respect in which he failed the character test the opportunity was meaningless. In that case, the applicant failed the character test in a way that could not be contested because he had a substantial criminal record within s 501(6)(a) and s 501(7)(c) in that he had been sentenced to a term of imprisonment of 12 months or more. The High Court held that in proceeding on the assumption the decision-maker did, she committed a jurisdictional error. Gummow and Hayne JJ (with whom Gleeson CJ agreed), held that there was jurisdictional error. Their Honours said (at 455 [194] and [196]):

194.    What was not explained to Senator Patterson was that, in the circumstances of the present case, her power to revoke the decision would only arise if the prosecutor could satisfy her that he passed the character test, which, given his criminal record, he could not do.

…

196.    In the absence of any evidence providing a further explanation of the reasons, or the parts of the reasons, for the respondent making her cancellation decision of 30 June, it is to be taken that she exercised her discretion under s 501(3) to cancel the prosecutor’s transitional (permanent) visa on an erroneous footing. This is that, if she did cancel the visa, the legislation required there then to be given to the prosecutor, in terms of par 14 of the minute, “an opportunity to make representations seeking revocation of [that] decision”. The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3). On that footing, prohibition and certiorari properly lay.

Their Honours contrasted the criteria in s 501(6)(a) and s 501(7)(c) with that in s 501(6)(b). They said (at 447 [168] and 453-454 [190]):

168.    The expression “does not pass the character test” is given content by sub-ss (6) and (7) of s 501. A person does not pass the character test if that person has a "substantial criminal record" (s 501(6)(a)). That criterion is satisfied if, among other matters listed in s 501(7), the person has been sentenced to a term of imprisonment of 12 months or more (par (c) of s 501(7)). The criteria in the other paragraphs in s 501(6) contain evaluative rather than purely objective elements. An example is par (b), association with a person, group or organisation "whom the Minister reasonably suspects has been or is involved in criminal conduct". However, given par (c), it plainly was open to the respondent reasonably to suspect that the prosecutor did not pass the character test. It was a question whether the respondent was reasonably satisfied that the cancellation of the prosecutor's transitional (permanent) visa was "in the national interest". On 30 June 2000, the respondent declared she was so satisfied and decided that his transitional (permanent) visa should be cancelled.

…

190.    … Accordingly, the power of revocation under s 501C(4) could never be enlivened in his case. Different 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 (par (b) of s 501(6)).

43    I think that this case is to be distinguished from Re Patterson; Ex parte Taylor. In this case, the Minister knew that the protected information formed the basis of his decision that he reasonably suspected that the applicant did not pass the character test and he knew that the protected information was not to be disclosed to the applicant. The first matter may be inferred from his reasons, and as to the second matter, the Minister said in his reasons:

6.    I had regard to the material supplied to me that is protected information under section 503A. This information cannot be disclosed to Mr MRISHAJ for comment. This information is relevant in considering the character test and the national interest in relation to Mr MRISHAJ and I have taken it into account in making my decision.

44    Furthermore, although the applicant’s chances of persuading the Minister that the original decision should be revoked because he could be satisfied the applicant passed the character test were limited, they were not non-existent in the sense they were in Re Patterson; Ex parte Taylor.

45    I reject the first argument put forward by the applicant with respect to Ground 3.

46    As to the second argument, the argument seemed to be that in one form or another the Act must be interpreted so that the information given to the applicant under s 501C(3) must be such that the applicant has a meaningful opportunity to make representations to the Minister that his original decision ought to be revoked. It is important to note that the applicant did not seek the protected information or seek to challenge the conclusion that the information was protected information within s 503A. Nor did he seek to argue as Mr Vella did in Vella v Minister for Immigration and Border Protection [2015] FCAFC 53; (2014) 230 FCR 61 (“Vella”) that he was entitled to the protected information because there was a common law obligation to provide procedural fairness in addition to the obligation in s 501C(3). His argument was that s 501C(3) must have some content and if in a case such as the present the Minister could not start the process under s 501 or had to approach the gazetted agency seeking a relaxation of the obligation of confidentiality, then that is what he is required to do.

47    There is force in the applicant’s submission that an applicant who is not told of the group or organisation he or she is said to be (or to have been) a member of may be at a severe disadvantage in addressing in a meaningful way a case that he or she is not a member of the group or organisation or that the group or organisation is not involved in criminal conduct or both. It would seem that all the person could do in those circumstances is address all of his or her activities and thereby attempt to negate the basis of the original decision.

48    The difficulty for the applicant is the language and structure of the Act and the decision in Vella. Section 503A protects information communicated to an authorised migration officer by a gazetted agency on condition that it is to be treated as confidential information, being information relevant to the exercise of a power under ss 501, 501A, 501B and 501C. That is the case here. Section 503A(6)(a) provides that the section has effect despite anything in “any other provision of this Act”.

49    The argument in Vella was that the common law rules of natural justice mean that the protected information should have been disclosed to Mr Vella. That argument was rejected. In the course of their reasons, the Court addressed the interrelationship between s 501C(3) and s 503A in a way which suggests that the applicant’s argument should be rejected. The Court said (at 80 [76]-[81]):

76.    There are two other important textual and contextual considerations in relation to the statutory scheme that need to be addressed. On first blush, these considerations might be thought to support Mr Vella’s construction. On close analysis, they do not.

77.    The first concerns the wording of the express requirement imposed on the Minister to disclose documents relevant to the cancellation decision. As already indicated, s 501C(2) and (3) contain an express disclosure requirement along the lines of what would in any event be required by the principles of natural justice. The point is that there is an express exclusion or carve-out from the definition of relevant information in s 501C(2). That carve-out extends only to “non-disclosable information”. It does not extend to information that is protected from disclosure by s 503A. This might be seen to be an indication that the legislature did not intend that s 503A would operate to override any disclosure requirement in the context of a s 501C decision. Only non-disclosable information was intended to be protected.

78.    When closely analysed, however, that inference cannot be drawn. That is because the wording of s 503A makes it plain that it was intended to operate across the entire statutory scheme. In particular, it was intended to operate in respect of the exercise of powers under ss 501, 501A, 501B and 501C. Whilst s 501C does not specifically refer to s 503A, nor do ss 501, 501A and 501B. Given the broad wording and evident intended operation of s 503A, it was unnecessary to specifically advert to it in any of these sections, including s 501C.

79.    It is difficult to see how it could be argued that s 503A cannot operate to absolve the Minister of the obligation to disclose information under s 501C(3) in circumstances where the information satisfies the criteria for protected information in s 503A. Plainly enough s 501C(3) requires the Minister to divulge information. Section 503A(6) provides that s 503A operates despite “anything” in any other provision in the Act. That must include s 501C(3). Accordingly, s 503A(2)(c) operates so that the Minister is not required to divulge, under s 501C(3), information which satisfies the objective criteria in s 503A.

80    It is perhaps for this reason that Mr Vella, at least in his written submissions, appeared to disavow reliance on s 501C(3) on the basis that it does not apply to the power in issue in his case. It perhaps also explains why Mr Vella couched his case in terms of a denial of natural justice, rather than a failure to comply with s 501C(3).

81    It would be curious if s 503A operated to override a requirement to disclose imposed by s 501C(3), but did not operate to override the cognate implied requirement to disclose imposed by the requirements of natural justice.

50    The issue which arises in this case was directly addressed by Edmonds J in NBMW v Minister for Immigration and Border Protection (No 2) (2014) 222 FCR 376 (“NBMW”) who held that by reason of the terms of s 503A and, in particular, subsections (2)(c), (6) and (8) the obligation not to divulge or communicate overrode the obligation to give notice to a person who has been refused a visa or had their visa revoked in s 501C(3). The Full Court in Vella referred to the decision in NBMW without indicating approval or disapproval of the decision.

51    Ground 3 is rejected.

Grounds 1 and 2

52    These grounds are to the effect that the Minister’s original decision is unreasonable, that is to say, it lacked an evident and intelligible justification (Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332 at 367 [76] per Hayne, Kiefel and Bell JJ; see also Minister for Immigration and Border Protection v Singh and Another (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11).

53    In his written submissions, the applicant submitted that the Minister’s decision was legally unreasonable because on 22 October 2014 he had been found to be of good character as part of the decision to grant him a Class BS, Subclass 801 Partner (Residence) visa and there had been no change in his circumstances from that point to 10 June 2015 other than the fact that he had travelled to Albania. This submission begs the question because it seems clear that the Minister had before him on 10 June 2015, information which satisfied him that s 501(3) was engaged. The onus was on the applicant to establish that the Minister’s decision lacked an evident and intelligible justification and this he has failed to do (Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594 at 616 [67] per Gummow J).

54    In oral submissions, the applicant submitted that that Minister’s decisions were unreasonable because the effect of them was that he had been denied the opportunity to make effective representations. That submission must be rejected because the opportunity provided to the applicant in this case was that authorised or contemplated by the Act.

Conclusion

55    I will grant an extension of time within which to bring the originating application. However, the originating application must be dismissed.

Associate:    

Dated:    2 May 2016