FEDERAL COURT OF AUSTRALIA

Graham v Minister for Immigration and Border Protection [2016] FCA 682

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue directed to the respondent quashing his decision made on 15 June 2015 to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth).

2.    The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

TRACEY J:

1    The applicant, Mr Aaron Graham, is a citizen of New Zealand. He came to Australia in 1976 at the age of 10. He has resided here since then.

2    Since 1985 he has accumulated a long list of convictions for offences including theft, drug possession, the possession of an unregistered firearm and traffic offences. The most serious of these was a conviction on three charges of assault in May 2009. He was sentenced to a term of 15 months’ imprisonment for these offences by the Tasmanian Supreme Court.

3    Since at least 2008 Mr Graham has been a member of the Rebels Motor Cycle Club.

4    Mr Graham was, at relevant times, authorised to remain in Australia as the holder of a Class TY Subclass 444 Special Category (Temporary) visa.

5    On 15 June 2015 the respondent Minister cancelled Mr Graham’s visa, acting pursuant to s 501(3) of the Migration Act 1958 (Cth) (“the Act”). On the same day the Minister gave written reasons for his decision.

6    By letter, dated 16 June 2015, Mr Graham was advised of the Minister’s decision. He was also advised that the Minister had power, under s 501C of the Act, to revoke that decision. Mr Graham was invited to make representations to the Minister, should he wish to do so, seeking such revocation. Mr Graham responded through his solicitor. Having considered the submissions the Minister determined, on 13 August 2015, not to revoke his original decision.

7    On 20 July 2015 Mr Graham filed an application for review of the Minister’s decision to cancel his visa. A further amended application was filed on 26 October 2015. The application contained a number of grounds including allegations that the Minister had constructively failed to exercise his power under s 501(3) of the Act and that his decision was irrational and unreasonable.

THE MINISTER’S DECISION TO CANCEL

8    The Minister’s decision to cancel Mr Graham’s visa was made after he had considered written submissions made to him by his Department.

9    The paper referred to a briefing, given to the Minister in January 2015, “on progressing s501 character considerations for … Outlaw Motor Cycle Gangs (OMCG) members.” Mr Graham was identified as one of those members. The Minister was advised that Mr Graham held a visa. The submission continued:

“5.    Subsection 501(3)(b) provides that you may cancel a visa that has been granted to a person if you reasonably suspect that the person does not pass the character test and you are satisfied that the cancellation is in the national interest. This power may only be exercised by you personally. You can exercise this power to cancel a visa without giving the person concerned advance notice of your intention to consider cancellation or an opportunity to be heard before you make your decision. If you were to cancel Mr GRAHAM’s visa under s501(3), your decision would be subject to judicial review, but not merits review.

6.    A decision to cancel under s501(3) may be revoked by you under s501C if the cancellee makes representations to you after your decision (within the period, and in the manner, set out in the decision notification) and satisfies you that they pass the character test.

…

9.    On 8 May 2009, Mr GRAHAM was convicted in the Supreme Court of Tasmania of three counts of assault for which he was sentenced to 15 months imprisonment. Mr Graham was subsequently considered for visa cancellation under s 501(2) by the then Minister’s delegate Mr Thomas Wodak on the basis of this conviction. Mr GRAHAM has criminal convictions dating back to January 1982, commencing from the age of 15, including assault, driving offences, stealing, drug possession, firearms, property, and other offences.

10.    On 11 July 2011 a delegate, Mr WODAK exercised his discretion not to cancel Mr GRAHAM’s visa and warned him. The delegate considered that countervailing factors including Mr GRAHAM’s links to the community through his long residence in Australia since his formative years, his three adult children, his minor biological child, partner and minor stepchild “narrowly tilted the scale” when weighed against the risk of any further offending by Mr GRAHAM.

…

12.    Since being warned in 2011, Mr GRAHAM has reoffended and received further convictions including common assault, use abusive language to a police officer, threatening words to provide a breach of the peace in a public place, fail to carry Australian drivers licence and drive motor vehicle whilst a prescribed illicit drug is present in your blood.”

(Original emphasis.)

10    The Minister’s attention was then directed to the terms of s 501(6)(b) of the Act. The submission thereafter continued:

“15.    The wording of the above provision was amended by legislative changes to the character test at s501(6) that came into effect on 11 December 2014. In relation to s501(6)(b), the explanatory memorandum associated with the changes states that the intention of the 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 criminal motorcycle gang, does not pass the character test. The explanatory memorandum continues:

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 holder.

16.    Should you decide to cancel Mr GRAHAM’s visa, he will be located and informed of the cancellation of his visa and, as he will be an unlawful non-citizen, he must be detained in immigration detention. He will be provided with a copy of the signed Issues Paper (Attachment A) and Statement of Reasons (Attachment B). However, he will not be given the information protected from disclosure under s503A (Attachment X). After he is detained he will have an opportunity to make representations to you (within the period, and in the manner, set out in the decision notification) that he passes the character test (s501C refers).

17.    If you decide to not revoke your original decision, the department will remove Mr GRAHAM as an unlawful non-citizen as soon as reasonably practicable from Australia and he would be subject to permanent exclusion (Special Return Criterion 5001 refers).”

(Original emphasis.)

11    The submission was accompanied by an Issues Paper. The paper set out the terms of s 501(3) of the Act and advised the Minister that his power to cancel visas under that subsection may only be exercised by him personally. He was told that s 501(5) provided that the rules of natural justice did not apply to a decision made under s 501(3). The Minister was then advised that:

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

12    The Minister was informed that “[t]he relevant ground of the … Act in this case is s 501(6)(b): the non-citizen is a member of a group or organisation and that group or organisation has been or is involved in criminal conduct.”

13    The Minister was provided with information which supported conclusions that outlaw motor cycle gangs (including the Rebels Motor Cycle Club) were engaged in criminal activity and that Mr Graham had been a member and President of a chapter of the Rebels Motor Cycle Club. He was advised that, on this material, it was open to him to “find that Mr Graham fails the character test under s 501(6)(b) …”

14    Attention was next directed to the reasons why the Minister might conclude that cancellation of Mr Graham’s visa would be in the national interest. Reference was made to organised crime being an issue of national security and Mr Graham’s long criminal history was summarised. The summary included references to Mr Graham’s conviction on charges of assault in the Supreme Court of Tasmania in 2009. The Minister was told that:

“On 18 September 2008 a teenage insurance enquiry agent was conducting surveillance in the street in which Mr GRAHAM then resided. Mr GRAHAM was not the subject of the surveillance and the victim was located several hundred meters from Mr GRAHAM’s unit. The surveillance activity was reported to Mr GRAHAM who, together with another man, approached the victim. Mr GRAHAM told the victim he had a pistol and demanded he lie down whilst he was pat searched. The victim was then driven to the front of Mr GRAHAM’s unit where he was seated at a table and some chairs placed on the front lawn. Mr GRAHAM then ‘goaded, abused and assaulted’ the victim. Mr GRAHAM punched the victim twice to the side of the face with sufficient force to dislodge him from his chair. He hit the victim on the head using the victim’s radio before punching him again and kicking him. Mr GRAHAM also poked him in the eye with the radio aerial. He threatened the victim with a tripod and punched and kicked him again. At this point the victim managed to escape. He suffered lacerations, grazing and swelling to his face (Attachment F, p1, 2.).”

(Original emphasis.)

15    The Minister was provided with a full copy of the trial judge’s sentencing remarks from which the summary was drawn.

16    The issues paper then continued:

“39.    A delegate considered cancelling Mr GRAHAM’s visa on the grounds of his substantial criminal record in July 2011. On this occasion Mr GRAHAM was sent a formal warning letter dated 4 July 2011 informing him that any further offending may result in visa cancellation (Attachment L). Mr GRAHAM signed an acknowledgement of this warning letter on 6 July 2011 (Attachment M). Further information regarding Mr GRAHAM’s criminal record can be found at Attachment Y.

40.    Based on all of the above information, it is open for you to conclude that having regard to Mr Graham’s criminal history and his close links with the Rebels Motor Cycle Club, cancellation of his visa is in the national interest.

41.    Pursuant to subsection 501(5), the rules of natural justice do not apply to a decision under subsection 501(3). This means that Mr GRAHAM has not been advised that consideration is being given to possible cancellation of his visa application and he has not been given an opportunity to make representations regarding the possible cancellation of his visa application.

42.    Section 501C of the Act provides that, following a decision under subsection 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be notified of the decision and given reasons for the decision (other than non-disclosable information) and invited to make representations about possible revocation of the decision. If Mr GRAHAM does this, you may revoke the decision if he satisfies you that he passes the character test.

43.    If having considered the information before you, you reasonably suspect that Mr GRAHAM does not pass the character test and you are satisfied that the cancellation of his visa is in the national interest, you may cancel the visa under subsection 501(3) of the Act.”

17    The Minister’s attention was next drawn to a series of potentially relevant considerations bearing on the exercise of his discretion under s 501(3).

18    In neither the submission nor the issues paper was the possibility of the Minister cancelling Mr Graham’s visa under s 501A canvassed.

19    Having considered the Departmental brief the Minister decided to cancel Mr Graham’s visa and gave written reasons for doing so. The Minister identified the source of his power to cancel the visa as s 501(3)(b) of the Act. He then said that:

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

20    The Minister said that Mr Graham had failed to pass the character test “by virtue of paragraph 501(6)(b) [of the Act]”. Nowhere in his reasons did he refer to Mr Graham having failed the character test because he had a substantial criminal record: see s 501(6)(a).

21    A copy of the Minister’s reasons was provided to Mr Graham under cover of the letter from the Department which advised him of the cancellation decision.

22    In that letter Mr Graham was told that:

“Under s 501C of the Migration Act, the Minister has the power to revoke his own decision if you are able to satisfy him that you pass the character test which is defined in s 501(6) of the Migration Act as set out in the attached documentation. You will note s 501(6)(b) was the relevant ground of the character test, however you may wish to note the other grounds in s 501(6).”

(Original emphasis.)

23    Attached to the letter were a number of documents including the Minister’s statement of reasons, the Issues Paper and attachments to it and copies of legislative provisions including ss 501 and 501C of the Act.

24    Mr Graham’s solicitor made written submissions to the Minister seeking the exercise of his power to revoke the cancellation decision. It is sufficient, for present purposes, to note that the bulk of those submissions went to discretionary considerations favourable to Mr Graham such as his family connections in Australia and the minor or petty nature of much of Mr Graham’s offending. Brief attention was given to Mr Graham’s membership of the Rebels Motor Cycle Club and the submission was made that:

“There is no material (sic) suggest that Mr Graham is sympathetic to, supportive of, or involved in the criminal conduct of members of the Rebel Motorcycle Club. Mere knowledge of any criminality or any member of the Rebels Motorcycle Club itself is insufficient to establish association.”

No attempt was made to deal with any parts of s 501(6), apart from s 501(6)(b).

25    The Minister gave short written reasons for determining not to revoke his decision to cancel Mr Graham’s visa. In doing so the only part of s 501(6) to which he referred was paragraph (b).

APPLICANT’S GROUNDS

26    Although a number of grounds were contained in Mr Graham’s further amended application only one was pressed at trial. That was Ground 1. It read:

“There was a constructive failure to exercise jurisdiction in that the Minister exercised his power under s 501(3) of the Act on the erroneous basis that the procedure required by s 501C of the Act would give the applicant a meaningful (as opposed to futile) opportunity to make representations seeking revocation of the decision to cancel.”

27    It will be necessary later in these reasons to record, in more detail, the manner in which this ground was refined and developed in argument. It is sufficient, for the moment, to note that the essence of Mr Graham’s complaint was that it was pointless for the Minister to invite him to make submissions seeking to persuade the Minister to revoke his original decision in circumstances where the Minister could not do so. This was because, under s 501C(4)(b), the Minister could not revoke the decision unless Mr Graham could satisfy him that he (Mr Graham) passed the character test. Having been sentenced to a term of imprisonment of more than 12 months Mr Graham could not pass this test. As a result any submissions were bound to be futile. The Minister should have been, but was not, so advised before he determined to exercise his power under s 501(3), a power which could be and was exercised without first according Mr Graham procedural fairness.

28    The Minister contended that s 501C(4)(b) should not be construed in the manner suggested by Mr Graham. Those submissions turned, in large measure, on an analysis of the statutory scheme which governs the cancellation of visas.

29    It will, therefore, be convenient to refer to the relevant parts of the Act before saying more about the competing submissions.

RELEVANT LEGISLATION

30    The revocation of visas is dealt with in Part 9 of the Act.

31    Section 501 provided, at relevant times, that:

“(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.

(3)    The Minister may:

(a)    …

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

if:

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

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

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

(3B)    Subsection (3A) does not limit subsections (2) and (3).

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

(5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

(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

…

(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; or

…

Otherwise, the person passes the character test.

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

…

(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, where the total of those terms is 12 months or more; or

…”

(Original emphasis.)

32    Under s 501A(1) the Minister has power to cancel visas even if one of his delegates or the Administrative Appeals Tribunal has earlier decided not to do so.

33    Section 501C deals with the revocation of decisions, made under s 501(3) and 501A(3), to cancel visas. Relevantly s 501C provides that:

“(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).

…”

34    Section 501CA deals with revocation of decisions, made under s 501(3A), to cancel a visa. It provides substantially the same regime for post-decisional procedural fairness as does s 501C. The grounds on which revocation may be granted do, however, differ.

35    Sub-sections 501(3A) and (3B) were introduced in December 2014. As Mr Graham was no longer serving a sentence of imprisonment at that time, they did not impose any relevant obligations on the Minister.

THE APPLICANT’S SUBMISSIONS

36    Mr Graham submitted that a passage of the Minister’s statement of reasons, set out at [19] above, revealed that the Minister proceeded on the basis of a misunderstanding of the consequences of a cancellation decision. The reasons had said, relevantly, that “pursuant to s 501C, following a decision under subsection 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be invited to make representations about possible revocation of the decision …”

37    Mr Graham contended that the Minister had misconceived the consequences of the exercise of his power under s 501(3). The Minister had exercised his power to cancel Mr Graham’s visa on the erroneous footing that, if he did so, Mr Graham would have an opportunity to make representations seeking the revocation of the decision. It was argued that any invitation to make representations about such revocation would be futile because Mr Graham could not pass the character test because he had been sentenced to a term of imprisonment of more than 12 months.

38    Mr Graham asserted that the error thus disclosed was of the same kind as that identified by Gummow and Hayne JJ in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (“Re Patterson”). That case concerned a decision to cancel an applicant’s visa under s 501(3) because the applicant had been sentenced to a term of imprisonment for a period of more than 12 months. Before making the decision the Minister had received a minute which contained the following caution:

“However, you should note that if a decision to cancel [the applicant’s] visa is made under s 501(3), he will be detained as soon as your decision to cancel is served upon him. He must then be given notice as soon as practicable thereafter of the decision and of relevant information and an opportunity to make representations seeking revocation of the decision, see s 501C(3) and (4).”

39    Gummow and Hayne JJ said, at 455, that:

“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.”

40    In these circumstances, their Honours concluded that:

“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).”

(Emphasis added).

41    Mr Graham further relied on Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154 (“Tanielu”) in which Jessup J applied the principles in Re Patterson. Tanielu similarly concerned the cancellation of an applicant’s visa because he had failed to pass the character test having been “sentenced to a term of imprisonment of 12 months or more”. The Minister had been provided with a departmental minute, which said:

“However, section 501C of the Act provides that, following a decision under subsection 501(3) to refuse or cancel a visa, the person who was the subject of the decision 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.

However such an invitation would be futile in Mr TANIELU’s case, given that he is not in a position to satisfy you that he passes the character test.”

(Original emphasis.)

42    The Minister’s statement of reasons contained the following paragraph which was in substantially the same terms as the paragraph used by the Minister in the present case (see above at [19]):

“By s 501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under s 501(3). However, 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 Act.”

43    His Honour held (at 159) that the Minister’s reasons for cancelling the visa “suffer[ed] from the vice identified by Gummow and Hayne JJ in [Re Patterson].” This was because the reasons omitted any acknowledgement of the futility of the invitation to be proffered pursuant to s 501C(3)(b).

44    The Minister had sought to distinguish Re Patterson on the basis that the departmental minute, which had pointed out the futility of any invitation to make submissions, had been signed by the Minister. That being so he should have been taken to have read it and understood it. His Honour rejected this contention finding (at 160) that “however the Minister was advised in the present case, his reasons demonstrate that his own conception of the relevant power was mistaken, in the way explained in [Re Patterson].”

45    Mr Graham acknowledged that Re Patterson and Tanielu were both cases in which the cancellation had occurred because the visa-holder had failed the “substantial criminal record” limb of the character test (s 501(6)(a)) but contended that the cases were not distinguishable on this basis. He submitted that, when determining whether a person satisfied the character test under s 501C(4)(b), the Minister’s reason for making the original decision was not relevant. An applicant had to satisfy the Minister that he or she passed the character test. That being the case, any representations made by Mr Graham in respect of the revocation decision would have been futile. It was impossible for him to pass the character test, because of his substantial criminal record: ss 501(6)(a) and 501(7)(c).

46    Mr Graham submitted that the Minister’s reasons exposed the jurisdictional error. The effect of the cancellation decision was a matter that could influence or affect the exercise of the Minister’s discretion. In the words of Gummow and Hayne JJ in Re Patterson, “there will have been a constructive failure to exercise the power reposed in [the Minister] by section 501(3)…if [the Minister] precluded [himself] from exercising the power according to law; [he] will have done so if [he] misconceived what in law was involved in the exercise of that power.” The Minister’s reasons revealed, so it was said, that he had exercised his power under s 501(3) on the erroneous footing that Mr Graham would be given a meaningful opportunity to seek revocation of the decision and this misconception meant that there was only a purported and not a real exercise of power.

CONSIDERATION

47    The Minister made two relevant decisions. The first was to cancel Mr Graham’s visa. The second was not to revoke the cancellation decision. Mr Graham has sought judicial review of the Minister’s first (cancellation) decision.

48    It was common ground that Mr Graham did not pass the character test because he had a substantial criminal record. Cancellation for this reason does not appear to have been suggested to the Minister because, in 2011, a delegate of the then Minister had considered but declined to cancel Mr Graham’s visa because of the sentence of imprisonment for 15 months. Having considered the information with which he was provided the Minister reasonably suspected that Mr Graham did not pass the character test because the Minister “reasonably suspected that [Mr Graham was] a member of a group and that group [was] involved in criminal conduct.” It was for this reason that the Minister exercised his power under s 501(3) of the Act.

49    Having made the cancellation decision the Minister promptly acted, as he was required to do, under s 501C(3) of the Act. He provided Mr Graham with a notice setting out his decision, particulars of relevant information on which he had relied and extended an invitation to Mr Graham to make representations to him about revocation of the cancellation decision. The notice advised Mr Graham that the Minister had power to revoke his cancellation decision if Mr Graham was able to satisfy him that he passed “the character test which is defined in s 501(6) of the Migration Act …”. The notice continued: “You will note s 501(6)(b) was the relevant ground of the character test, however you may wish to note the other grounds in s 501(6).”

50    Mr Graham made a timely response to the invitation contained in the notice.

51    Had the Minister cancelled Mr Graham’s visa under s 501(3) because he had a substantial criminal record the case would have been indistinguishable from Re Patterson and Tanielu. Prior to making his cancellation decision the Minister was not advised that any subsequent invitation under s 501C(3) would be an exercise in futility because the precondition, prescribed by s 501C(4)(b), for revocation could never be satisfied and his reasons made no reference to this legal reality.

52    A critical question which arises is whether or not the fact that the Minister found Mr Graham to have failed the character test because of his membership of a motor cycle gang provided a material basis for distinguishing these decisions.

53    There is some support to be found, in the authorities, for doing so.

54    Re Patterson (at 453-4), Gummow and Hayne JJ referred to s 501(6)(a) and observed that:

“[d]ifferent circumstances might have arisen if, for example, the ground relied upon had been [Mr Taylor’s] association with a person or group or organisation whom the Minister reasonably suspected of involvement in criminal conduct.”

55    NBMW v Minister for Immigration (No 2) (2014) 222 FCR 376 (“NBMW”), dealt with two parts of the character test: association (s 501(6)(b)) and significant risk to the Australian community (s 501(6)(d)(v)). The Minister’s reasons stated that:

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

56    Edmonds J rejected the applicant’s contention that the Minister’s decision was based on a misapprehension that the applicant would be given an “effective” opportunity to satisfy the Minister that he had passed the character test. His Honour said (at 382-3) that:

“Re Patterson is distinguishable for three reasons.

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

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

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

57    NBMW establishes the existence of a sound and arguable basis for discriminating between paragraphs 501(6)(a) and (b) when the Minister is considering the exercise of his cancellation powers under s 501(2) and (3) of the Act. Edmonds J clearly contemplated that an opportunity to make submissions to the Minister, pursuant to an invitation extended under s 501C(3), may have utility, where the s 501(6)(b) criterion is relied on, given that the Minister will need to make value judgments as opposed to being satisfied about the existence of an objectively ascertainable fact.

58    I am not, however, persuaded that Tanielu and NBMW are irreconcilable. As Edmonds J pointed out, Re Patterson dealt with s 501(6)(a) which gave rise to a question of fact as to whether the visa-holder had a substantial criminal record as defined in s 501(7). If the visa-holder has such a record, “the power of revocation under s 501C(4) could never be enlivened …”: Re Patterson at 453 (Gummow and Hayne JJ). The visa-holder in NBMW was not alleged to have such a record. The Minister had determined to cancel his visa because he suspected that the visa-holder had a relevant association for the purposes of s 501(6)(b) and that there was a significant risk that, if the visa-holder were to remain in Australia, he would represent a danger to the Australian community or part of it (s 501(6)(d)(v)). In determining whether one or both of these criteria had been established value judgments were involved and, in the case of s 501(6)(d)(v), “a predictive exercise” was required. As a result an application for revocation would not be futile because the Minister might be persuaded to reconsider the judgments which he had formed in the light of any submissions made by the visa-holder.

59    The question remains as to whether an application for revocation would be futile because the applicant, like the present applicant, may fail the character test under both s 501(6)(a) and one or more other paragraphs of that sub-section. The answer to this question depends on the construction of the statutory scheme.

60    The Minister contended that it was implicit in the scheme of s 501C, that the “character test” referred to in s 501C(4) means that element of the test that was relied on by the Minister when he made his original cancellation decision.

61    There was, he contended, an obvious link between the basis upon which a visa is cancelled and s 501(3) and the subsequent opportunity to make a revocation decision under s 501C(4). Furthermore, the focus on the original decision in the definition of “relevant information” suggested an expectation that the issues relevant to the revocation decision would be those that were the subject of the original cancellation decision.

62    I do not accept these submissions.

63    The Minister’s power to cancel a visa under s 501(3) of the Act is conditioned upon him reasonably suspecting that the visa-holder “does not pass the character test”: see s 501(3)(c). The Minister may so act without first according the visa-holder natural justice: see s 501(5). The opportunity to make submissions is to be afforded after the decision has been made. If the Minister harbours the necessary suspicion and decides to cancel the visa s 501C is engaged: see s 501C(1)(b). Section 501C(3) requires that the Minister must promptly advise the visa-holder of the cancellation decision. A written notice of the decision must be provided together with “particulars of the relevant information”. “Relevant information” is defined, in s 501C(2) to be information (other than non-disclosable information) that the Minister considers “would be the reason, or a part of the reason,” for making the cancellation decision and is specifically about the visa-holder or another person.

64    As I observed in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [40], in relation to the same definition of “relevant information” appearing in s 501CA(2), the Minister is required to expose so much of his reasons as he is permitted to disclose for making his decision to cancel the visa. Given that the Minster will know why he has made the decision the use of the words “would be” are somewhat curious.

65    The particulars of the relevant information are to be accompanied by an invitation to the visa-holder to make representations to the Minister about “revocation of the original decision”.

66    The Minister’s power to revoke the original decision is enlivened if the visa-holder makes representations in accordance with the Minister’s invitation and “satisfies the Minister that [he or she] passes the character test (as defined by section 501)”.

67    The construction of s 501C(4)(b), for which the Minister contends, ignores or requires a significant reading down of the words in parenthesis which appear immediately after the reference to “the character test”. The Minister cannot exercise his power to revoke an earlier decision to cancel a visa unless he is satisfied that the visa-holder passes the character test as it is defined in s 501. That definition is to be found in s 501(6), read with subsection (7). Section 501(6) makes plain that the person will not pass that test if any of the criteria contained in the subsection apply. In making his initial decision the Minister may rely on one or more of these criteria. Where, on the facts known to the Minister and to the visa-holder, it is open to the Minister to conclude that the applicant does not pass the character test for additional reasons, there is no necessary inconsistency between the Minister acting for one reason and the visa-holder, when seeking revocation, being required to satisfy the Minister that other potentially relevant criteria do not apply.

68    The Minister also submitted that the “reasonable suspicion” requirement in s 501(3) referred to a subjective suspicion. If he did not hold that subjective suspicion in respect of a particular ground, even if that ground may, objectively, be satisfied, the power to cancel the visa could not be exercised on that objective ground.

69    So much may be accepted. It does not, however, follow that, when considering revocation under s 501C(4), the Minister will be confined to a consideration of the subjective suspicions he harboured when cancelling the visa. That decision will have been made without the Minister having received submissions from the visa-holder. When revocation is being considered it is for the visa-holder to satisfy the Minister that he or she passes the character test. To do that the visa-holder must seek to establish that none of the criteria identified in s 501(6) have application to him or her. It would be perverse of the Minister, when deciding whether to revoke a cancellation decision and having been advised that the visa-holder had been sentenced to imprisonment for a period exceeding 12 months, to conclude that he had been satisfied by the visa-holder that the visa-holder passed the character test.

70    The Minister submitted that a literal construction of ss 501(3) and 501C(4), in a case such as the present, would subvert the statutory scheme for the provision of procedural fairness. This would occur, he suggested, because a visa-holder who was seeking revocation of a cancellation decision would, knowing the basis on which the Minister acted in cancelling the visa, be misled into thinking that he could obtain a favourable decision by persuading the Minister that his reliance on the particular ground was misplaced.

71    This contention would have greater force were the Minister to be minded to reject a revocation application because he reasonably suspected that the visa-holder failed the character test for a reason which called for the making of a value judgment and to which no reference had been made by the Minister when determining to cancel the visa and when inviting representations about revoking the decision. The present is not such a case.

72    Procedural fairness is intended to ensure that those who may be adversely affected by administrative decisions are not prejudiced by “practical injustice”: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ). The guiding principle is one of fairness: see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 566 (Allsop J, with whom Gyles and Conti JJ agreed on this point). As Weinberg J said in Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 at [54]:

“Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural fairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance.”

73    The issues paper which was sent to the Minister and which he considered before making his original decision had attached to it a National Police Certificate dated 4 May 2015 which recorded that Mr Graham had been sentenced to imprisonment for 15 months by the Supreme Court of Tasmania on 8 May 2009. A copy of the issues paper and the attached certificate were provided to Mr Graham when he was given the Minister’s reasons for deciding to cancel his visa. At the same time Mr Graham was provided with copies of relevant parts of the Act including ss 501 and 501C. The invitation extended to him, pursuant to s 501C(3)(b), specifically referred to s 501C(4)(b) and to the definition of the character test in s 501(6). Mr Graham was told: “[y]ou will note s 501(6)(b) was the relevant ground of the character test, however you may wish to note the other grounds in s 501(6).” Mr Graham’s attention was thus directed to the full panoply of grounds contained in s 501(6) and not just the ground on which the Minister had relied when cancelling the visa. He was given the opportunity of dealing with any of them that might have been relevant. In the written submissions to the Minister seeking revocation of the cancellation decision Mr Graham’s solicitor referred to the National Police Certificate although he did not specifically refer to the sentence of 15 months’ imprisonment imposed by the Supreme Court on 8 May 2009. Had he done so he would have been bound to concede that Mr Graham had a substantial criminal record for the purposes of s 501(6)(a).

74    In these circumstances it is difficult to conclude that Mr Graham had been treated unfairly or had been the victim of some practical injustice. His attention had been directed to the relevant statutory provisions and, in particular, to the whole of s 501(6). It was for him to decide how best to frame his representations.

75    There can be no doubt that the exercise of the Minister’s powers under s 501C is conditioned by a requirement that he accord procedural fairness to visa-holders: see Vella v Minister for Immigration and Border Protection (2015) 230 FCR 61 at 75. Mr Graham did not, however, ultimately press an argument that he had been denied procedural fairness by the Minister. What has been said, however, about the procedural steps taken in the present case and the practical impact of those procedures, is sufficient to gainsay the Minister’s proposition that a literal construction of s 501C(4)(b) would necessarily deprive a visa-holder, who is seeking revocation of a cancellation decision, of procedural fairness.

CONCLUSION

76    This case is indistinguishable, as a matter of principle, from Tanielu. Mr Graham had a substantial criminal record. He knew this. The Minister knew this. As a result an essential precondition for the revocation for the Minister’s cancellation decision could never have been satisfied. Despite this the Minister was advised that he had power to revoke his earlier decision. His reasons for cancelling Mr Graham’s visa made no mention of the fact that any invitation to Mr Graham to seek revocation of the cancellation decision would be futile because Mr Graham was incapable of satisfying the Minister that he passed the character test. The Minister’s decision to cancel Mr Graham’s visa constructively failed because no such power of revocation existed.

DISPOSITION

77    The Minister’s decision must be quashed. The Minister should pay Mr Graham’s costs of his application.

Associate:

Dated:    9 June 2016