FEDERAL COURT OF AUSTRALIA

Cayzer v Minister for Immigration and Border Protection (No 3) [2016] FCA 806

ORDERS

THE COURT ORDERS THAT:

1.     The application is dismissed.

2.    The applicant is to pay the respondents’ costs of and incidental to the application.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION AND SUMMARY

1    The applicant, Mr Cayzer, is the subject of a decision made on 27 October 2014 by the first respondent, the Minister, to cancel his Class BF Transitional (Permanent) Visa under s 501(2) of the Migration Act 1958 (Cth). Mr Cayzer was born in Scotland on 1 August 1960 to parents who were not Australian citizens. He entered Australia with his parents on 5 October 1965 on a permanent entry permit. One of Mr Cayzer’s contentions in this proceeding is that he became an Australian citizen in 1981. The Minister’s cancellation decision proceeded on the basis that Mr Cayzer is not a citizen and that his permanent entry permit was deemed to continue as a transitional (permanent) visa from 1 September 1994 pursuant to reg 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth).

2    The Minister’s cancellation decision followed Mr Cayzer’s conviction on 11 November 2011 in the Supreme Court of Tasmania in relation to maintaining sexual relations with a person under 17 years of age. Mr Cayzer was sentenced to four years’ imprisonment with a non-parole period of two and a half years. He was released on parole on 7 May 2014. The cancellation decision then led to Mr Cayzer’s detention pursuant to s 189 of the Migration Act on or about 23 November 2014. He remains in immigration detention.

3    Mr Cayzer has sought declaratory relief in this Court in relation to the cancellation decision, but also in relation to a number of other arguments he raises. No particular jurisdiction is specified in the further amended originating application, or in the statement of claim. The respondents have not submitted the Court lacks jurisdiction. It appears Mr Cayzer relies, at least in part, on s 476A(1)(c) of the Migration Act in relation to the judicial review jurisdiction of this Court under s 39B of the Judiciary Act 1903 (Cth) to review the cancellation decision. His grounds of review include his contention that he was, in fact and in law, granted citizenship in 1981 and therefore is not an alien who is amenable to the cancellation power in s 501(2). He contests his detention under the Migration Act on the same basis. Alternatively, he contends he was not an alien on his entry to Australia because he was a British subject, or that since his arrival and by virtue of his entitlement and enrolment to vote (also having stood for election), he has become one of the “people of the Commonwealth” and is protected by s 41 of the Constitution.

4    For the reasons set out below, Mr Cayzer’s application must be dismissed.

MR CAYZER’S APPLICATIONS

5    It is necessary to set out some brief procedural history to Mr Cayzer’s claims.

6    On 30 October 2014, three days after the Minister’s decision to cancel his visa, Mr Cayzer filed an urgent ex parte application in which he sought an injunction restraining the Minister from detaining him pending determination of his citizenship status. Kerr J made the restraining order sought, but granted leave to the Minister to apply for it to be set aside: Cayzer v Minister for Immigration and Border Protection [2014] FCA 1166.

7    On 13 November 2014, Mr Cayzer filed an originating application in which he sought:

(1)    a declaration that he is an Australian citizen and not subject to the Minister’s powers under s 501(3) of the Migration Act (albeit that the Minister’s decision to cancel Mr Cayzer’s visa was expressed to have been made pursuant to s 501(2) of the Act rather than s 501(3));

(2)    a declaration that he is not an alien and on no occasion was an alien, but was a subject of the Queen of the United Kingdom of Great Britain and Ireland up to 1973 and from 1973 onwards was a subject and remains a subject of the Queen of Australia, and hence s 501(3) does not apply to him;

(3)    an order restraining the Minister from detaining him until his citizenship status had been determined by the Court; and

(4)    costs.

8    On 12 November 2014, the Minister applied to set aside the injunction preventing the detention of Mr Cayzer. After a hearing on 21 November 2014, Kerr J dissolved the injunction: Cayzer v Minister for Immigration and Border Protection (No 2) [2014] FCA 1283. Mr Cayzer was taken into custody on or about 23 November 2014 and detained at the Maribyrnong Immigration Detention Centre.

9    Also on 21 November 2014, Mr Cayzer filed an amended originating application in which he reiterated the orders sought in his originating application and sought an additional order setting aside the Minister’s decision to cancel his visa on the basis it was devoid of justification and unreasonable.

10    On 13 April 2015, Mr Cayzer filed a second amended originating application which substantially reframed his case. Instead of the orders sought in the amended originating application filed on 21 November 2014, Mr Cayzer sought declarations that:

(1)    the actions of the Minister and the Commonwealth had caused him to be disenfranchised contrary to protection afforded by the Constitution and that any legislation that had disenfranchised him was ultra vires and void;

(2)    he was an “Australian National” and not subject to the Migration Act;

(3)    the Commonwealth “retrospectively declared [Mr Cayzer] to be an alien within its legislation”, that by doing so it acted contrary to the Constitution, and that the relevant legislation (which was not specified) was void;

(4)    he was a “member of the people of the Commonwealth of Australia”;

(5)    the Minister had acted ultra vires by applying the Migration Act to him; and

(6)    his detention by the Minister was unlawful.

11    Mr Cayzer also sought a writ of habeas corpus requiring that he be released from immigration detention and returned to Tasmania.

12    On 21 July 2015, Mr Cayzer filed in the High Court an application for the proceeding to be removed to that Court. Mr Cayzer had previously foreshadowed that the removal application would be made and on 10 April 2015 Kerr J had made orders by consent adjourning the proceeding in the Federal Court pending the outcome of the application. The High Court refused the removal application on 13 November 2015, including on the basis that certain elements of the factual foundation to Mr Cayzer’s claims were disputed and would need to be determined by a trial court: Cayzer v Minister for Immigration and Border Protection [2015] HCATrans 297.

13    Following the High Court’s decision, the matter came before me in this Court and on 3 December 2015 I made orders fixing the matter for final hearing and setting a timetable for the filing of further documents.

14    On 8 December 2015, Mr Cayzer filed an interlocutory application seeking orders that he be released from immigration detention and instead be kept in home detention in Tasmania. I describe the disposition of that application at [17] below.

15    On 11 December 2015, Mr Cayzer filed a further amended originating application seeking declaratory relief on different terms. He reinstated the claims made in his amended originating application that he is a citizen and not an alien and that the Minister’s decision to cancel his visa should be set aside. He also reinstated his claim for an order restraining the Minister from detaining him until his citizenship status has been determined.

16    No further amendments have been made to Mr Cayzer’s originating process and it is the further amended originating application filed on 11 December 2015 on which he moved at trial. Given the number of amendments and procedural steps that have taken place, it is appropriate to set out the orders sought in the further amended originating application in full as they appear in that document:

On the grounds stated in the accompanying affidavit and statement of claim the Applicant claims:

…

6.    a declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth that the respondents actions have caused the applicant to be disenfranchised contrary to the protection afforded to the applicant by the Commonwealth of Australia Constitution Act and that any legislation that has disenfranchised the applicant is ultra vires and void.

7.    a declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) that the Applicant is an Australian National and is not subject to the Migration Act 1958 (Cth).

…

9.    a declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth that the applicant is a member of the people of the Commonwealth of Australia.

10.    a declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth that the first respondent acted ultra vires in applying the Migration Act 1958 (Cth) to the applicant.

11.    a declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth that the first respondents detention of the applicant is unlawful and that a writ of habeas corpus be issued requiring the respondents to release the applicant from immigration detention and to return the applicant to the State of Tasmania.

12.    such further or other relief as the Court may deem meet.

13.    costs.

14.    An order that the Respondents be restrained from detaining the Applicant until a determination has been made by the Court as to the Applicant’s citizenship status or until further notice.

15.    a declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) that the Applicant is not an alien and on no occasion was an alien but was a subject of the Queen of the United Kingdom of Great Britain and Ireland up to 1973 and post 1973 was subject and remains a subject of the Queen of Australia and hence the Migration Act does not apply to him.

16.    a declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) that the Applicant is an Australian Citizen and is not subject to the Respondent’s powers of the Migration Act 1958 (Cth).

17.    The Respondent’s decision to cancel the Applicant’s visa should be set aside upon the basis that it is devoid of plausible justification and was manifestly unreasonable.

17    On 18 December 2015, Tracey J made orders by consent dismissing Mr Cayzer’s interlocutory application in relation to home detention. Aside from this course of events, Mr Cayzer did not otherwise press his claim for an order restraining the Minister from detaining him pending determination of his citizenship status by the Court, as set out in paragraph 14 of his further amended originating application.

18    The further amended originating application is supported by an affidavit sworn by Mr Cayzer on 9 December 2015 and was filed together with a statement of claim.

19    On 29 January 2016, the respondents filed a defence denying that Mr Cayzer was entitled to any of the relief he sought. On 1 March 2016, the respondents filed an amended defence with the consent of Mr Cayzer and leave of the Court, but the only amendments were to correct two potential pleading errors and the respondents’ position otherwise was maintained.

SUMMARY OF THE ISSUES

Mr Cayzer’s claims

20    Senior counsel for Mr Cayzer helpfully accepted that an accurate summary of Mr Cayzer’s contentions was given in the Minister’s written submissions, including shorthand descriptions for each claim, which I propose to use in these reasons. In my opinion that summary is accurate and I set it out here as a convenient reference point:

(1)    Mr Cayzer was granted citizenship in 1981 and, accordingly, is not an alien and ought not be detained under the Act (the Citizenship Ground): Mr Cayzer’s statement of claim at [4]-[30]; Mr Cayzer’s outline of submissions at [61]-[95].

(2)    He was not an alien upon his entry into Australia (the Non-Alien Ground): statement of claim at [5]; outline of submissions at [18], [29].

(3)    Having enrolled to vote, voted and run for election, he is one of the “people of the Commonwealth”. It is said, therefore, that he is protected by s 41 of the Constitution and that the visa cancellation decision was contrary to ss 24 and 41 of the Constitution (the Franchise Ground): statement of claim at [31]-[43], [48], [138]-[141], [155]; outline of submissions at [1]-[13]. It is also said to have the consequence that Mr Cayzer is not an alien: statement of claim at [153]; outline of submissions at [14]-[60].

(4)    In making the visa cancellation decision, the Minister unlawfully acted on the assumption that amendments to the Migration Act made on 11 December 2014 were already in force: statement of claim at [70]-[72]; submissions at [102] (the Amendment Act Ground).

(5)    In making the visa cancellation decision, the Minister unlawfully acted on the basis that the possibility that Mr Cayzer might commit a crime of violence favoured visa cancellation: statement of claim at [73]-[75]; submissions at [103], [105] (the Risk to the Community Ground).

(6)    Mr Cayzer’s conviction could not result in him not passing the character test in s 501(6) of the Act: statement of claim at [78]-[80]; submissions at [107]-[110] (the Character Test Ground).

(7)    The Minister had before him a psychologist’s report, but the report omitted two pages and the Minister unlawfully failed to have regard to mitigating information in the omitted two pages: statement of claim at [95]-[110]; submissions at [125], [128]-[129] (the Northey Report Ground).

(8)    There is fresh information, which was not before the Minister, which bears on the issues to which the Minister had regard in making the visa cancellation decision: statement of claim at [87]-[94], [111]-[120]; submissions at [116]-[138] (the Fresh Information Ground).

(9)    The Minister was obliged to, but did not, afford Mr Cayzer a “higher level of tolerance for criminal … conduct” as referred to in Direction No. 55: statement of claim at [129]; submissions at [138] (the Direction 55 Ground).

(10)    The Minister failed to have regard to the best interests of a child: statement of claim at [121]; submissions at [133] (the Best Interests of the Child Ground).

(11)    The Minister, by not responding to a letter from Mr Cayzer, made a new decision not to grant Mr Cayzer a visa: statement of claim at [66]; submissions at [99] (the Deemed Decision Ground).

21    No additional claims were identified in oral argument by Mr Cayzer’s senior counsel, and indeed some of the contentions listed above were not developed in oral submissions at all. I shall deal with contentions in that latter category with more brevity, given they were barely relied upon by Mr Cayzer.

The respondents’ responses to Mr Cayzer’s claims

The Citizenship Ground

22    The respondents’ short answer to the Citizenship Ground is that, while Mr Cayzer might believe he was granted Australian citizenship in 1981, that belief is incorrect and the events he recalls did not, and could not, accord him citizenship under the applicable statutory regime. The steps in the respondents’ argument, and the authorities upon which they rely, are as follows.

23    First, as the moving party, Mr Cayzer bears the onus of establishing that he was granted citizenship. For that proposition, the respondents rely upon Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67] per Gummow J, Heydon J agreeing at [91], Crennan J agreeing at [92]. There, Gummow J said the following at [66]-[67] in relation to whether the Refugee Review Tribunal had failed to consider a request for a further medical examination made by the visa applicant’s migration agent in a letter to the Tribunal:

The Minister submits that clearly the Tribunal read the migration agent’s letter of 20 June 2008. In its reasons the Tribunal referred to and summarised the majority of the contents of the letter, but it did not make reference to the request for a further medical examination of the first respondent. The Minister submits that Rares J erred in drawing an inference that the failure by the Tribunal to refer to the request in its written statement meant that the Tribunal had not considered the request. That submission should be accepted.

An applicant in the Federal Magistrates Court for judicial review of the Tribunal’s decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal. Nothing in the Migration Act displaces the usual position that it is for the moving party to make out its case. In Industrial Equity Ltd v Deputy Commissioner of Taxation, Gaudron J made a similar point with respect to the AD(JR) Act. We are not concerned here with questions of a presumption of the regularity or validity of administrative action. Rather, the point to be made is that it fell to the first respondent to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error. There was certainly no burden upon the Minister to demonstrate the positive proposition that the Tribunal had indeed considered the request.

(Footnotes omitted.)

24    Applied to the present case, this meant the respondents bore no burden to prove Mr Cayzer had not been granted citizenship in 1981.

25    Second, a person may only become a naturalised citizen of Australia by force of an Act of Parliament and may not become a citizen merely by “absorption” into the Australian community. In support of those two propositions, which are connected, the respondents relied upon the following statement of Gibbs CJ in Pochi v Macphee [1982] HCA 60; 151 CLR 101 at 111, Mason J agreeing at 112, Wilson J agreeing at 116:

The argument was put in another way by submitting that the fact that the plaintiff has become totally absorbed into the Australian community meant that he is no longer an alien. This argument is impossible to maintain. It was well settled at common law that naturalization could only be achieved by Act of Parliament – even action by the Crown under the prerogative could not give an alien the status of a British subject: Blackstone, op. cit., p. 374; Chitty, Prerogatives of the Crown, pp. 14-15; Holdsworth, History of English Law, vol. IX, p. 76. The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person’s nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national. There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia. The Australian Citizenship Act validly so provides.

26    The High Court affirmed that statement of the law in Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162. In Te, the Court unanimously determined that the deportation power in s 200 and the visa cancellation power in s 501(2) of the Migration Act validly applied to persons who had lived in Australia as permanent residents for a number of years but had not become citizens.

27    At [57]-[58], Gaudron J expanded upon what was said in Pochi as follows:

In Pochi v Macphee, Gibbs CJ observed that “[i]t was well settled at common law that naturalisation could only be achieved by Act of Parliament — even action by the Crown under the prerogative could not give an alien the status of a British subject”. Holdsworth states that that was recognised “as early as, and probably before, the beginning of the fifteenth century … and … was accepted as a settled rule of law in Calvin’s Case”. In Calvin’s Case [(1608) 7 Co Rep 1a at 7a; 77 ER 377 at 385] it was said that “the King by his letters patent may make a denizen, but cannot naturalise him to all purposes, as an Act of Parliament may do”. And Quick and Garran, writing in 1901, noted that “[f]ormerly the only mode of obtaining naturalization was by a special Act of Parliament passed for each individual seeking to be naturalized; but by the Act 7 and 8 Vict c 66, the British Parliament provided a general procedure by which approved aliens could acquire the status of natural-born subjects of the Queen”.

Once it is accepted, as in my view it must be, that the common law does not permit and, for many centuries, has not permitted an alien born person to acquire the status and entitlements that attach to a person who acquires membership of the Australian body politic by birth except in accordance with statute, it follows that the Constitution recognises neither of the processes which the prosecutor calls in aid in this case and that neither process can or does limit the power of Parliament to define or limit the circumstances in which an alien born person may acquire membership of the Australian body politic and, thereby, cease to be an alien. And when Parliament so legislates, it legislates exhaustively on the topic.

(Footnotes omitted.)

28    At [90], McHugh J held that “[t]hose who enter a common law country as aliens can only acquire citizenship and the status of non-aliens by legislation”.

29    At [116], Gummow J held that:

The conferral of a power upon the Parliament to make laws answering the description of laws with respect to “[n]aturalization” reflects the well settled understanding at common law that naturalisation could be achieved only by statute. Gibbs CJ so restated the position, with reference to the writings of Blackstone, Chitty and Holdsworth, in Pochi v Macphee.

(Footnote omitted.)

30    At [210]-[211], Hayne J held that:

Alienage is a status fixed by reference to descent and place of birth and it may be altered only by, or pursuant to, legislation.

I do not accept that concepts of “absorption”, developed in considering the reach of s 51(xxvii) of the Constitution — the immigration and emigration power — have a place in considering who is an alien.

31    Although Gleeson CJ did not directly affirm the statement made by Gibbs CJ in Pochi, his Honour held at [39] that:

The power conferred upon Parliament by s 51(xix) includes a power to decide who will be entitled to membership of the Australian body politic. That power, as has been noted, is not unqualified; but there is no reason to doubt that it extends to denying such membership to a person who arrived in this country as an alien, and has never taken up Australian citizenship.

32    The qualification to which his Honour referred was that “Parliament cannot, simply by giving its own definition of ‘alien’, expand the power under s 51 (xix) to include persons who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word”: at [31]. In relation to “absorption”, his Honour concluded at [40] that:

Treating absorption into the community as relevant to the status of alienage is inconsistent with earlier judicial views as to the width of par (xix) compared with par (xxvii), to which I have referred above. In my opinion, it is wrong in principle. For reasons already discussed, while absorption reflects the fact that an activity of immigration has come to an end, it may co-exist, and commonly co-exists, with a legal status of alienage. Resident aliens may be absorbed into the community, but they are still aliens.

33    Kirby J agreed in the result on the facts of the two cases before the Court, but appeared to accept that there might be cases in which a person could cease to be a constitutional “alien” by reason of absorption into the Australian community (at [200]):

Various extreme cases were suggested whereby non-citizens, who were long-term residents although never naturalised (often for legitimate reasons), might exceptionally be regarded as outside the aliens power in the Constitution. The spectre of a ninety year old non-citizen, proposed for expulsion as an “alien” although she had lived peacefully in Australia virtually all her life, was put forward to test the outer perimeter of the aliens power. Similarly, a person resident in Australia for sixty years, who had served in its Armed Forces or police who believed he had been naturalised but through some mistake or slip had not formally accomplished the change of status. Or the position of a person, long resident in Australia, purportedly excluded from citizenship as a result of discriminatory or restrictive laws enacted by the Parliament. There have been such provisions in the past, for example, restricting the acquisition of Australian citizenship by descent to persons born overseas to citizens through the male line. If such restrictions could exist in the past they, or others like them, could (so the applicants argued) be reinstated by future legislation. This Court should therefore be wary of restoring too uncritically the suggested dichotomy between a constitutional “alien” and a statutory citizen in cases outside the transitional class of British subjects arriving before 1987 and non-citizens, such as Mr Taylor. As Gibbs CJ observed in Pochi, s 51(xix) presents certain difficulties. The scope of the power is ultimately stated by the Constitution. Its outer boundary is determined by this Court, not by legislation enacted by the Parliament.

34    While agreeing with the statement of Gaudron J set out at [27] above and expressing “serious[] doubt whether ‘absorption’ can put persons such as the applicants beyond the reach of the aliens power”, Callinan J also said in obiter that he shared “some of the concerns expressed by Kirby J with respect to very long term residents of Australia”: at [229] (footnote omitted). No other member of the Court expressed reservations of that kind.

35    Therefore, the most that can be said of the current state of the law is that two Justices of the High Court (Kirby and Callinan JJ) have allowed for the possibility that persons with peaceful, very long term residence in Australia and (perhaps) significant engagement in civil duties should not be considered aliens for the purposes of legislation supported by s 51(xix).

36    Third, the Australian Citizenship Act 1948 (Cth) governed the grant of citizenship in 1981 and under that Act a person acquired citizenship only if: (a) the Minister exercised a discretionary power to grant the person a certificate of citizenship (s 14(1)); and (b) the person then took an oath or affirmation of allegiance in the prescribed manner (s 15(1)(a)) before a person who was in a prescribed or approved class of persons authorised to take the oath or affirmation (s 15(2)).

37    Fourth, there is no evidence, and Mr Cayzer does not claim, that he was granted a certificate of citizenship and therefore he cannot discharge the burden of establishing that he is an Australian citizen.

38    Fifth, Mr Cayzer claims that he took the oath of allegiance before a Defence Force officer, but there is no evidence that Defence Force officers have ever been approved persons for the purpose of taking oaths or affirmations of allegiance and the evidence before the Court indicates to the contrary.

39    Sixth, had Mr Cayzer validly become a citizen, a number of records would have been created, including a citizenship index card held by the Department of Immigration and Border Protection (as the Department is currently called), an entry in the register of citizenship certificates, and a hard copy paper file held by the National Archives. Despite “diligent searches” undertaken on behalf of both Mr Cayzer and the respondents, no such records have been found.

40    Senior counsel for Mr Cayzer did not contend that this Court is free to depart from Pochi or Te, nor did he argue that the effect of those cases is other than as submitted by the respondents. Instead, Mr Cayzer’s case on citizenship focused on factual matters and the conclusions to be drawn from the evidence before the Court. I return to those matters at [94] below.

The Non-Alien Ground

41    The respondents’ answer to the Non-Alien Ground is that the High Court has authoritatively determined that the aliens power in s 51(xix) of the Constitution reaches “all those persons who entered this county after the commencement of the [Australian Citizenship Act 1948 (Cth)] on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised”: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 at [32] per Gleeson CJ, Gummow and Hayne JJ, Heydon J agreeing at [190].

42    The facts in Shaw resemble the present case. Mr Shaw was born in the United Kingdom on 27 December 1972 and came to Australia on 17 July 1974. Thereafter, he lived in Australia as a permanent resident and did not leave the country, but did not become a citizen. In 1998, he was sentenced to seven and a half years’ imprisonment for property, motor vehicle and drug offences. In July 2001, the Minister cancelled his visa under s 501(2) of the Migration Act on the ground that the Minister reasonably suspected he did not meet the character test as defined in s 501(6) of the Act by reason of his criminal record.

43    Gleeson CJ, Gummow and Hayne JJ held that, while the applicant was classified by s 7 of the Citizenship Act as a “British subject” upon his arrival in Australia (at [17]), the effect of that classification was merely that he was a member of “a class of aliens with special advantages in Australian law” (at [22]). Whatever the position might have been at the time of federation and prior to the commencement of the Citizenship Act, the result was that “the applicant entered Australia as an alien in the constitutional sense” and that, by virtue of the holding in Te, “he did not lose that status by reason of his subsequent personal history in this country”: at [31]. Heydon J agreed with their Honours, subject to a reservation that it was not “self-evident” that there was any period following the formation of the Commonwealth in 1901 during which British subjects would not have been aliens in Australia: at [190].

44    McHugh J and Callinan J, in dissent, would have held that a British citizen who arrived in Australia prior to the commencement on 3 March 1986 of the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) would not be a constitutional “alien” but a “subject of the Queen” within the meaning of s 117 of the Constitution: at [51] per McHugh J and at [177] per Callinan J. Kirby J, also in dissent, concurred with that conclusion at [111].

45    The respondents also rely upon statements made in Cunliffe v Commonwealth [1994] HCA 44; 182 CLR 272 at 312 per Brennan J, 357 per Dawson J, 374-5 per Toohey J, and by the Court in Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; 165 CLR 178 at 185. In Cunliffe, the Court held that Pt 2A of the Migration Act, which established a mandatory registration system for persons who gave immigration assistance or made immigration representations, was a valid law with respect to aliens within s 51(xix) of the Constitution. In Nolan, six Justices of the Court affirmed the holding of Gibbs CJ in Pochi that “the Parliament can … treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian”: at 185 per Mason CJ, Wilson, Brennan, Dean, Dawson and Toohey JJ, quoting Gibbs CJ in Pochi at 109-10 (emphasis added in Nolan).

46    Relying on those authorities, the respondents submit that this Court is bound to hold that Mr Cayzer “is, and always has been, an ‘alien’ for the purposes of s 51(xix) of the Constitution”.

47    In his written submissions, Mr Cayzer sought to rely on Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 in support of the propositions that a person could be absorbed into the “body politic that constituted the Australian community” and that British citizens who are members of that body politic and have been in Australia since before 1987 are not “aliens” within the meaning of the Constitution. The visa holder in Patterson was Mr Taylor, who had come to Australia from the United Kingdom in 1966 at the age of six and lived in Australia as a permanent resident thereafter. He did not become a citizen, but his name was added to the federal and state electoral rolls when he was 18. In 1996, Mr Taylor was sentenced to a minimum of three and a half years’ imprisonment for child sex offences. When he was released, the Minister cancelled his visa. Albeit with differing reasoning, a majority of the Court (Gaudron, McHugh, Kirby and Callinan JJ; Gleeson CJ, Gummow and Hayne JJ dissenting) held that Mr Taylor was not an alien, having arrived in Australia as a British subject and having become a member of the Australian community: at [44] per Gaudron J, [136] per McHugh J, [303]-[304] per Kirby J, [377]-[378] per Callinan J. Importantly to the reasoning of some members of the majority, he had arrived before s 5 of the Citizenship Act was amended in 1987 such that “British subjects” were no longer excluded from the statutory definition of “alien” in the Act: see, eg, [35] per Gaudron J.

48    In response to those submissions, the respondents submitted that the holdings in Patterson upon which Mr Cayzer relies were in turn overruled in Shaw. There, Gleeson CJ, Gummow and Hayne JJ, with whom Heydon J agreed, said the following at [35]-[39] in relation to Patterson:

In Re Minister for Immigration and Multicultural Affairs; Ex parte Te, four members of the Court agreed that there was no single strain of reasoning in the majority judgments in Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Patterson had no precedent value beyond its own facts.

Any consideration of the significance to be attached to Patterson must involve the determination whether Patterson was effective to take the first step of overruling the earlier decision in Nolan v Minister for Immigration and Ethnic Affairs. In our view, the Court should be taken as having departed from a previous decision, particularly one involving the interpretation of the Constitution, only where that which purportedly has been overthrown has been replaced by some fresh doctrine, the elements of which may readily be discerned by the other courts in the Australian hierarchy. On that approach to the matter, and as Long indicates, the decision in Patterson plainly fails to pass muster.

…

The decision in Patterson does not rest upon a principle carefully worked out in a significant succession of decisions; the contrary, as we have indicated, is the case. Secondly, the treatment of the aliens power in Patterson was not necessary for the decision, because there was a clear alternative basis for the decision [being that the Minister had constructively failed to exercise jurisdiction]. Thirdly, the inconvenience flowing from the existence of Patterson is indicated by reference to Long. Finally, the Minister has moved as quickly as may be in this Court to obtain a reconsideration of Patterson. That case henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister.

(Citations omitted.)

49    In oral argument, senior counsel for Mr Cayzer did not dispute that this Court is bound by the decision of the High Court in Shaw and in the other authorities to which the respondents referred. Nor did he place significant weight on Patterson. Instead, he pointed to features of Mr Cayzer’s case that differentiate it from Shaw, such as that Mr Cayzer has voted in elections and Mr Shaw had not done so. Notwithstanding those differences, senior counsel for Mr Cayzer accepted that his arguments on the Citizenship Ground faced significant challenges given the clear terms in which a majority of the Court in Shaw held that all persons born outside Australia to non-citizens prior to the commencement of the Citizenship Act who have not been naturalised pursuant to statute are “aliens” within the meaning of s 51(xix) of the Constitution. He accepted that, insofar as an argument to the contrary is put to a single Justice of this Court, the authority of Shaw, Pochi and Nolan compels its rejection. I return to those matters at [130] below.

The Franchise Ground

50    The respondents contend that each step in the argument needed to make out the Franchise Ground is flawed and that this Court is bound to hold that it fails.

51    First, the respondents submit that, insofar as Mr Cayzer contends he has a constitutional right to vote in federal elections pursuant to s 41 of the Constitution, the High Court authoritatively determined in R v Pearson; Ex parte Sipka [1983] HCA 6; 152 CLR 254 that s 41 confers no such constitutional right. In Sipka, Gibbs CJ, Mason and Wilson JJ said the following at 260-1:

Section 41 does not in terms confer a right to vote. … Under the Constitution, persons qualified as electors for the more numerous House of the Parliament of a State were qualified to vote for the election of members of the House of Representatives, but only until the Parliament otherwise provided: see s. 30 of the Constitution. By s. 8 of the Constitution, a person qualified to vote for the election of members of the House of Representatives is also qualified to vote for the election of Senators. The Parliament has power to make laws with respect to matters in respect of which the Constitution makes provision until the Parliament otherwise provides (s. 51 (xxxvi)) and thus has power to establish the franchise for electors of members of the House of Representatives and Senators. Once a law of the Commonwealth has completely provided the qualifications for electors for Commonwealth elections (as in fact Commonwealth laws have done since the Commonwealth Franchise Act 1902 was passed) no elector thereafter could acquire a qualification to vote at Commonwealth elections under ss. 30 and 8 of the Constitution. By virtue of s. 41, the Commonwealth law which first established the franchise could not have prevented any person who then had a right to vote at elections for the more numerous House of the Parliament of a State from voting at elections for either House of the Parliament of the Commonwealth. But once a Commonwealth law had been passed completely establishing the franchise, no person, not already qualified to vote at Commonwealth elections, could become so qualified by virtue of the Constitution alone. No future law could be said to prevent such persons from voting, since there was nothing in the Constitution or in the law that gave them a right to vote.

52    Their Honours concluded at 264 that:

For the reasons we have given we hold that s. 41 preserves only those rights which were in existence before the passing of the Commonwealth Franchise Act 1902.

53    Brennan, Deane and Dawson JJ came to the same conclusion (at 278-9) and the holding in Sipka has been referred to without disapproval in subsequent cases: Snowdon v Dondas (No 2) [1996] HCA 27; 188 CLR 48 at 71-2 per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ; Mulholland v Australian Electoral Commission [2004] HCA 41; 220 CLR 181 at [151] per Gummow and Hayne JJ; Roach v Electoral Commissioner [2007] HCA 43; 233 CLR 162 at fn 107 per Gummow, Kirby and Crennan JJ; and Rowe v Electoral Commissioner [2010] HCA 46; 243 CLR 1 at [9] per French CJ, [236] per Hayne J, [350] per Crennan J; Alqudsi v The Queen [2016] HCA 24 at [125] per Gageler J.

54    Second, the respondents submit that, at their highest, ss 7, 24 and 41 of the Constitution could do no more than protect Mr Cayzer’s right to vote and could not affect the validity of s 501(2) or its application to Mr Cayzer.

55    Third, the respondents submit that, even if this Court were to hold that Mr Cayzer is one of the “people of the Commonwealth” within the meaning of s 24 of the Constitution, that would not make him a citizen and the franchise that is protected by the Constitution is only the “universal adult-citizen franchise”: see Rowe at [18], [22] per French CJ, emphasis added; see also Roach at [8] per Gleeson CJ and Bennett v Commonwealth [2007] HCA 18; 231 CLR 91 at [38], [42] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. In other words, the legislature is not prevented from denying non-citizens the right to vote, even if some non-citizens might be members of the class of persons described in s 24 as the “people of the Commonwealth”.

56    Fourth, the respondents contend that, even if Mr Cayzer is one of the “people of the Commonwealth”, he is still an alien and not a citizen because of the holdings of the High Court in Pochi, Te and Shaw discussed above. Therefore, s 501 of the Migration Act applies to him.

57    In oral submissions, senior counsel for Mr Cayzer appeared to accept that this Court is bound by Sipka and that Sipka is not distinguishable from the present case. He made no express submission to the contrary. Instead, his argument focused on the proposition that an elector who is one of the “people of the Commonwealth” cannot be an alien. He accepted that Shaw presents difficulties for that argument but submitted that Shaw is distinguishable from the present case, including on the basis that Mr Cayzer became an elector and swore an oath of allegiance to Australia. I return to the Franchise Ground at [138] below.

The remaining grounds

58    The respondents’ answers to the remaining grounds may be summarised more briefly.

59    In relation to the Amendment Act Ground, the respondents submit that, in deciding to cancel Mr Cayzer’s visa, the Minister did not rely on amendments to the Migration Act introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), which came into effect after the date of the decision.

60    In relation to the Risk to the Community Ground, the respondents submit that the Minister adequately explained why he considered that the low risk of Mr Cayzer re-offending was outweighed by the serious harm that could result if he did re-offend. Further, it was plainly open to the Minister to determine that Mr Cayzer’s offending was objectively very serious.

61    In relation to the Character Test Ground, the respondents submit that the Minister based his decision on s 501(6)(a), relating to whether a person has a “substantial criminal record”, not s 501(6)(d), relating to whether there is a significant risk a person would engage in criminal or other antisocial conduct if allowed to enter or to remain in Australia. Mr Cayzer did have a “substantial criminal record” within the meaning of s 501(6)(a) (which is set out at [88] below). Therefore, the Character Test Ground is misconceived and cannot succeed.

62    In relation to the Northey Report Ground, the respondents submit that the fact that two pages were missing from the copy of the Northey report that was before the Minister at the time of the visa cancellation decision does not mean Mr Cayzer was denied procedural fairness or that the decision was otherwise defective. The respondents emphasise that the requirements of procedural fairness are flexible and adapt to fit particular circumstances: Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at [23] per Kiefel, Bell, Keane and Nettle JJ; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [156] per Hayne, Crennan, Kiefel and Bell JJ. Here, Mr Cayzer provided the report to the Department with the two pages missing and was legally represented when he did so. Further, Mr Cayzer was provided with an opportunity to furnish material for the Minister to consider and the Minister was not under any duty to identify and remedy any failures of Mr Cayzer to take full advantage of that opportunity: Yao v Minister for Immigration and Border Protection [2014] FCAFC 17; 140 ALD 21 at [61].

63    The respondents submit that the Fresh Information Ground fails because the additional material upon which Mr Cayzer seeks to rely in support of the ground was not before the Minister when he made his decision and is inadmissible.

64    They submit that the Direction 55 Ground fails because the Minister gave sufficient weight to the fact that Mr Cayzer has lived in Australia since he was a child and that the Minister’s consideration of this matter is recorded in the Minister’s reasons.

65    In relation to the Best Interests of the Child Ground, the respondents similarly submit that the Minister gave more than sufficient consideration to the interests of Mr Cayzer’s children and recorded that consideration in his reasons. In the alternative, the respondents submit that the best interests of the child are not a mandatory relevant consideration under s 501(2). In support of the latter submission, they rely upon Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [85]-[86] per Griffiths J, Allsop CJ and Wigney J agreeing on this point. There, Griffiths J agreed with the primary judge that the effect on Mr Stretton’s youngest daughter if he were removed from Australia was not a mandatory relevant consideration under s 501(2) and the Minister was not obliged to refer to it in his reasons.

66    In relation to the Deemed Decision Ground, the respondents submit that there is no basis for Mr Cayzer’s contention that the Minister decided not to grant Mr Cayzer a visa by not responding to a letter sent by Mr Cayzer in November 2015 requesting reconsideration of the decision to cancel Mr Cayzer’s visa. The letter did not request the grant of a new visa; even if it had done so, it would not have constituted a valid visa application under s 46 of the Migration Act for reasons including that it was not in an approved form and no application fee was paid; and the Minister could not be taken to have constructively refused such an application in any case.

67    I return to each of these grounds starting at [152] below.

EVIDENCE

Affidavits filed by Mr Cayzer

68    Mr Cayzer filed eight affidavits in the proceeding:

(1)    an affidavit of Mr Cayzer dated 30 October 2014 in support of his urgent interlocutory application of the same date;

(2)    an affidavit of Mr Cayzer dated 13 November 2014 in support of his originating application;

(3)    an affidavit of Geoffrey Tremayne, Mr Cayzer’s solicitor, dated 7 December 2015 in support of Mr Cayzer’s interlocutory application for release filed on 8 December 2015;

(4)    an affidavit of Mr Cayzer dated 9 December 2015, also in support of his interlocutory application for release;

(5)    an affidavit of Mr Cayzer dated 9 December 2015, but filed on 14 December 2015, in support of his further amended originating application;

(6)    an affidavit of Robert Watson dated 12 February 2015 annexing a document drafted by Mr Watson titled “Report on Graham Cayzer Matter”;

(7)    an affidavit of Fiona Johnson, Mr Cayzer’s mother, dated 11 February 2016; and

(8)    an affidavit of Robert Watson dated 29 February 2016.

69    The respondents objected to the whole of the first, third and sixth of the affidavits listed above. Senior counsel for Mr Cayzer did not seek to read those affidavits, nor did he seek to read the second or fourth affidavit in the list. The seventh affidavit, being that of Ms Johnson, he read without objection from the respondents. That left the fifth and eighth affidavits in the list, to which the respondents objected in part.

70    In the fifth affidavit, Mr Cayzer deposes to his arrival in Australia on 5 October 1965 at the age of five, his belief that he became an Australian citizen at a ceremony conducted on a Royal Australian Air Force (‘RAAF’) base in the early 1980s, and to other matters forming the factual basis of his case. Various documents are annexed to the affidavit, including documents relating to the Minister’s decision to cancel Mr Cayzer’s visa.

71    The respondents objected to a number of statements in Mr Cayzer’s affidavit, principally on the basis that they were opinions. For example, they objected to Mr Cayzer’s statements that “I am a British subject”, that “Upon my arrival in Australia in 1965 I was not an alien”, and that “I am a natural born British Subject and who also became a subject of the Queen of Australia in 1973 after the Royal Style and Titles Act 1973 was enacted”, as well as other similar statements, and statements regarding reasons for delay in the preparation of Mr Cayzer’s case. The respondents also objected to the application book from Mr Cayzer’s removal application in the High Court, which was annexed to the affidavit, save for certain documents in the application book relating to RAAF entry requirements and Department of Defence alien enlistment policies in the late 1970s and early 1980s, and two extracts from the Mercury newspaper regarding Mr Cayzer’s candidacy in municipal elections in Tasmania in 1982 and 1983. Senior counsel for Mr Cayzer agreed with those objections and did not seek to read the passages and documents to which objection was taken.

72    In the fifth affidavit, Mr Cayzer also referred to and annexed a psychological report of Dr Wendy Northey dated 2 November 2011 in which Dr Northey concluded that Mr Cayzer’s “prognosis for full rehabilitation is very good” and that he “is currently assessed as being at minimal risk of offending”. The respondents submitted that the use of the report and Mr Cayzer’s statement about it should be limited pursuant to s 136 of the Evidence Act 1995 (Cth) to the fact that Dr Northey wrote the words in the report rather than for the truth of the opinions expressed by Dr Northey. Senior counsel for Mr Cayzer agreed with that submission and I find that use of the Northey report and Mr Cayzer’s statement about it should be limited in the manner sought by the respondents.

73    In relation to the eighth affidavit in the list above, the deponent, Mr Watson, describes himself as a “researcher” and the affidavit contains an account of archival research he undertook in relation to Mr Cayzer’s case, annexing documents found in the course of that research. However, Mr Cayzer did not contend that Mr Watson was an expert in any relevant field and the respondents objected to a number of statements in his affidavit on the basis that they were opinions. These included statements regarding RAAF recruiting practices and the degree of organisation and accessibility of files relating to citizenship and aliens in the National Archives of Australia, as well as a statement that the Department of Defence had located additional files that were not in the National Archives in response to a request made by Mr Watson on 6 January 2016. Senior counsel for Mr Cayzer did not press certain of the passages to which objection was taken, but did press the following passages:

Many indexes and files [relating to citizenship and aliens in the National Archives] are scattered at the branch level. Sometimes the same files are indexed by surname, then surnames are hidden in other files grouped by region or alphabet segment. Exhibited to this affidavit and marked ‘E’ is an example of this opaque access.

…

Defence (who had agreement with [the National Archives] to hold its records) located many more new files connected to the files [the National Archives] found a year ago.

74    I ruled that those passages should be allowed on the basis that Mr Watson was able to make the observations in them based on what he had done and observed, and on the basis that Mr Watson was to give oral evidence and the reliability of his affidavit evidence could be tested in cross-examination.

Affidavits filed by the respondents

75    The respondents filed four affidavits:

(1)    an affidavit of Ernest Ho, a Case Officer in the Department of Immigration and Border Protection, addressing matters relating to the cancellation of Mr Cayzer’s visa and annexing related documents;

(2)    an affidavit of Heather Penhaligon, Assistant Director in the Citizenship Operations Section of the Department, detailing a search of records relating to Mr Cayzer’s citizenship status and of citizenship processes more generally;

(3)    an affidavit of Peter Gibb, a Wing Commander of the RAAF, dealing with recruitment practices and procedures of the RAAF in the 1980s, including in relation to citizenship applications; and

(4)    an affidavit of Grant MacDonald, a Group Captain in the Royal Australian Air Force Reserve, dealing with similar subject matter to the affidavit of Wing Commander Gibb.

76    Counsel for Mr Cayzer made no objection to the affidavits listed above and they were read by counsel for the respondents.

RELEVANT CONSTITUTIONAL AND LEGISLATIVE PROVISIONS

77    The following constitutional and legislative provisions are of primary relevance to Mr Cayzer’s grounds of review.

78    Subparagraphs (xix) and (xxvii) of s 51 of the Constitution respectively provide that, subject to the Constitution, Parliament has power to make laws with respect to “naturalization and aliens” and “immigration and emigration”.

79    Section 7 of the Constitution relevantly provides:

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

80    Section 24 relevantly provides:

The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.

81    Section 41 provides:

Right of electors of States

No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

82    Section 117 provides:

Rights of residents in States

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

83    Recalling that one of Mr Cayzer’s claims is that as a British subject he was not an alien on his entry into Australia, at the time Mr Cayzer entered Australia on 5 October 1965, s 7 of the Citizenship Act (then titled the Nationality and Citizenship Act 1948 (Cth)) provided:

(1)    A person who, under this Act, is an Australian citizen or, by an enactment for the time being in force in a country to which to this section applies, is a citizen of that country shall, by virtue of that citizenship, be a British subject.

(2)    The countries to which this section applies are—

(a)    the United Kingdom and Colonies;

(b)    Canada;

(c)    New Zealand;

(d)    the Union of South Africa;

(e)    India;

(f)    Pakistan;

(g)    Ceylon;

(h)    the Federation of Rhodesia and Nyasaland;

(i)    Ghana;

(j)    the Federation of Malaya;

(k)    the State of Singapore,

and any other country declared by the regulations to be a country within the Commonwealth of Nations to which this section applies.

84    Ms Penhaligon’s affidavit annexes relevant provisions of the Citizenship Act as it stood in 1981, when Mr Cayzer claims he became a citizen. Mr Cayzer did not object to the accuracy of those annexures and the following extracts are taken from them.

85    In 1981 (when Mr Cayzer claims, in the alternative, to have been granted citizenship in a ceremony in Hobart), Pt III, Div 2 of the Citizenship Act was headed “Grant of Australian Citizenship” and provided for a process by which a non-citizen could apply for and receive a grant of citizenship. Section 13 provided:

(1)    A person may, not earlier than one year after his entry into Australia, make a declaration in the approved form of his intention to apply for the grant to him of a certificate of Australian citizenship.

(2)    A person may apply in the approved form for the grant to him of a certificate of Australian citizenship.

(3)    An application under sub-section (2) may be made whether or not the applicant has previously made a declaration under sub-section (1), but shall not be made more than six months before the earliest date on which the Minister, under the provisions of section 14, could become empowered to grant the certificate.

86    Section 14(1) provided:

The Minister may grant a certificate of Australian citizenship to a person who has made an application in accordance with section 13 and satisfies the Minister–

(a)    that he is of full age;

(b)    that he is capable of understanding the nature of the application;

(c)    that he has resided continuously in Australia or New Guinea, or partly in Australia and partly in New Guinea, throughout the period of one year immediately preceding the date of the grant of his certificate;

(d)    that, in addition to the residence required under paragraph (c), he has resided in Australia or New Guinea, or partly in Australia and partly in New Guinea, or has had service under an Australian government, or partly such residence and partly such service, for periods amounting in the aggregate to not less than two years during the eight years immediately preceding that date;

(e)    that he is of good character;

(f)    that he has an adequate knowledge of the English language;

(g)    that he has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(h)    that he intends, if granted a certificate of Australian citizenship, to reside or to continue to reside in Australia or New Guinea or to enter or continue in service under an Australian government, in the service of an international organisation of which the Australian government is a member, or service under the employment of a person, society, company or body of persons resident or established in Australia or New Guinea.

87    Section 15 relevantly provided:

(1)    A person to whom a certificate of Australian citizenship has been granted under this Division shall be an Australian citizen—

(a)    in the case of a person to whom paragraph (b) does not apply—as from the date upon which he takes an oath of allegiance or makes an affirmation of allegiance in the manner provided by this section and in accordance with the form contained in Schedule 2; or

(b)    in the case of a person who has not attained the age of sixteen years or a person to whom sub-section (2) of section 14 applies—as from the date upon which the certificate is granted.

(2)    The oath or affirmation of allegiance referred to in sub-section (1) shall—

(a)    be taken or made before a Judge of a Federal Court or a Judge or Magistrate holding office under the law of a State or Territory or before a person, or a person included in a class of persons, approved by the Minister; and

(b)    if the Minister has made arrangements in pursuance of section 41 for it to be taken or made in public—be taken or made in accordance with those arrangements, unless the Minister otherwise permits.

88    At the time of the Minister’s decision to cancel Mr Cayzer’s visa, s 501 of the Migration Act relevantly provided:

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

(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)); …

…

(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; …

89    Sections 14(1) of the Act provided that:

A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.

90    “Non-citizen” was defined to mean “a person who is not an Australian citizen” and “lawful non-citizen” was defined to mean “[a] non-citizen in the migration zone who holds a visa that is in effect”.

91    Section 189 of the Act provided for the detention of unlawful non-citizens in the migration zone.

RESOLUTION

Mr Cayzer’s contentions that he is not a person to whom s 501 can apply

92    Senior counsel for Mr Cayzer fairly accepted that the arguments he put concerning the application of s 501 of the Migration Act to Mr Cayzer are, with the exception of the Citizenship Ground, currently unavailable on the authority of either Shaw (in relation to the Non-Alien Ground) or Sipka (in relation to the Franchise Ground). That said, submissions were made about how some of those cases might conceivably be distinguished and I deal with those submissions below.

93    In summary, it is clear that Mr Cayzer’s arguments must be rejected because of the authorities of the High Court to which the respondents have referred the Court: in particular, Shaw and Sipka. These authorities cannot be distinguished in the way Mr Cayzer sought to distinguish them. Whether or not there is merit in any or all of the dissenting judgments is not a matter for this Court in determining the outcome of this application.

The Citizenship Ground

94    The Citizenship Ground is in a different category because it raises questions of fact. If Mr Cayzer’s factual contentions are made out on the evidence, then questions of law arise about whether what he contends occurred is sufficient in law for the Court to find that he is an Australian citizen and therefore not a person to whom s 501 can apply.

95    In my opinion Mr Cayzer has not discharged his burden of proof to establish that what occurred in 1981 in Hobart constituted him taking the oath of citizenship and becoming an Australian citizen. Nor do I accept he has proven that is what he was told by any officer or employee of the Commonwealth who attended the events about which he gives evidence.

96    Even if I had reached the opposite conclusions (that Mr Cayzer had taken the oath of citizenship and was told that he had become an Australian citizen) the sequence of factual events upon which Mr Cayzer relies cannot amount in law to the grant of Australian citizenship.

97    For the purposes of reaching my conclusion on this ground, I make the following findings of fact on the evidence before me.

98    Mr Cayzer had been employed with the Commonwealth Department of Social Security from approximately 1978. After accepting a teacher scholarship in 1979, he commenced study at the University of Tasmania. He did not complete a course there and instead found other employment during 1980 and 1981. He then decided he would try to find employment in the RAAF as an Air Traffic Controller, and made inquiries in answer to an advertisement in the Hobart Mercury newspaper. He applied through what he described as the “Airforce Recruitment Centre” or “ARC” situated in Hobart at Liverpool Street.

99    Mr Cayzer attended the ARC with four other candidates. He was told he needed to have Australian citizenship to join the RAAF. He was asked if he was prepared to become an Australian citizen and he said that he was. He was given some “paper work” to fill in. He filled in what he described in his evidence as a “preliminary application form”. He filled in the option on the form for dual citizenship, as both a British and Australian citizen. He also filled in details about his employment history, his education and his medical history.

100    Mr Cayzer passed the physical examination but not the examination for the Air Traffic Controller entry position. Instead, he was informed he could join the Air Force as what he described in his evidence as a “general entry recruit”. He accepted this offer.

101    Mr Cayzer attended at the ARC in Hobart, along with four other people. Mr Cayzer’s evidence was that he then took part in a ceremony with these four other people. This was the evidence critical to his case about the grant of citizenship. I make findings about what happened at that ceremony below.

102    He attended interviews in Melbourne a few weeks later, and then also subsequently attended at the recruiting barracks in Hobart. He was informed that because he had not passed Year 11 English he could only be accepted into officer entry training on the condition that he returned to college for further study. However, after further interviews and consideration he was eventually informed that the recruitment staff would recommend he be accepted for officer training and the final decision would be made in Canberra. About four weeks later, he was informed he would only be accepted if he returned to study for a further qualification in English. He decided not to accept the offer on this basis. Notwithstanding declining the Air Force’s offer, Mr Cayzer’s evidence was as follows:

I have always believed that I took out dual citizenship at the Airforce Recruiting Centre in Hobart and I have considered myself to be an Australian citizen from that day onwards. I told my family about my citizenship ceremony.

103    Mr Cayzer’s mother gave affidavit evidence in this proceeding corroborating her son’s account. She did so by deposing to the truth of a handwritten statement she had given in June 2015. She was not cross-examined on this evidence. Her evidence was that Mr Cayzer had sworn an oath in front of a “serving officer” and signed a paper. She stated that the family was proud of him because he was the first person in the family to become a “true” Australian. Her evidence did not expressly identify when she was first told by Mr Cayzer about this ceremony and about him becoming an Australia citizen.

104    Mr Cayzer’s evidence about the ceremony at which he believes he became an Australian citizen was as follows:

I along with four other people who had completed the exams with me were asked were asked to stand up in front of officers and others and the officer got us to swear an oath of allegiance together. The officer then said at the end that we were now Australian Citizens.

105    I should note at this point that Mr Cayzer gave no additional evidence in chief before me beyond that set out in his affidavits, but he was extensively cross-examined.

106    In cross-examination, he described going “upstairs” in the building with the four other candidates. He accepted that these events, and the ceremony he described, all occurred prior to him actually enlisting. And, he also agreed, he never did in fact enlist in the Air Force. His evidence was however that the ceremony occurred immediately after he had been interviewed about enlisting.

107    As to who was present and what occurred, Mr Cayzer stated:

Well, there was a number of people there. There was Air Force Recruiting. There was officers. There was other people. Not all the people that were there I could identify.

… And when I actually swore the oath, it was in front of a number of officers and a number of other people who I don’t know who they were. But that wasn’t while we were being interviewed.

… We were then taken to a room upstairs. And that was where we swore the oath … of allegiance.

… So we were told that to go any further in the process, we had to be Australian citizens. Because the process thereafter involved being flown to Melbourne for interviews which, in my case, was two occasions to Melbourne. And the air force wasn’t prepared to go forward any further unless we were Australian citizens. And that was when I was with a number of other recruits … [and was] give[n] a card and asked to swear an oath of allegiance to the Queen of Australia …

108    Mr Cayzer’s evidence then proceeded in the following manner:

And then you – you said you were given a card?---Yes. There was a card with an oath written on it. Now, I can’t tell you verbatim what those words were on that oath. All – my recollection of it was, I had to renounce my allegiance to the Queen of Great Britain and swear allegiance to the Queen of Australia. There was a number of words on that after that, but my memory of those words is not accurate to today.

No. So – so – but – but - - -?---But to me, it was a very significant event, because I was renouncing any allegiance to the Queen of Great Britain.

Even though you were staying a dual citizen?---That’s correct.

Well, didn’t that strike you as odd?---Well, no. Citizen and allegiance are two different things.

And you thought you would – you thought you would remain a citizen of - - -?---British subject. Yes.

A British subject?---And – and - - -

And then - - -?--- - - - Australian citizen. Yes.

Having renounced any allegiance to the Queen of England?---The Queen of Great Britain. Yes. Correct.

And you didn’t see any tension there with your - - -?---No.

- - - desire to keep dual status?---I didn’t see any tension. No. We are part of the Commonwealth of – of – well, not just the Commonwealth of Australia, but - - -

But – but the essence of what you now you remember, all that time later, is, as you’ve just said to her Honour, that you were swearing an oath to the Queen?---The Queen of Australia. Correct. And renouncing my allegiance to the Queen of Great Britain. But it was an oath card. There was a number of other parts of it that came after that. Now, I can’t remember everything word for word, now, 35 years ago. I can only remember the main concept of the whole thing.

109    In cross-examination Mr Cayzer accepted he could not recall the precise words of the oath he took that day. It was suggested to him it could have been an oath relating to enlistment rather than citizenship. No particular form of words for an enlistment oath was put to Mr Cayzer in cross-examination. Mr Cayzer denied it was an oath of that kind.

110    In cross-examination by senior counsel for the respondents, some issue was made of the previous evidence given by Mr Cayzer in an affidavit to the effect that he was not “naturalised”. It was suggested that his evidence was inconsistent. No submission was made that Mr Cayzer was dishonest. It is somewhat difficult to reconcile the cross-examination on this issue with a submission that Mr Cayzer was simply mistaken, but that was the way it was put. In my opinion, nothing turns on the point. In his prior affidavit evidence, Mr Cayzer may well not have understood the correct meaning of “naturalised”, and may have intended something else. In my opinion, in his evidence before the Court he was personally convinced he had become an Australian citizen during the events at the ARC. That is consistent with what he previously told his mother. The respondents’ written submissions at [31] appear to accept as much.

111    I turn now to the respondents’ evidence.

112    In terms of what occurred in 1981, Ms Penhaligon’s evidence was, she accepted, based on a review by her of documents held by the Department rather than her personal knowledge and experience. She commenced with the Department in 1991. Her evidence was that, after a thorough search, she could find no delegations to any officer of the Army or Air Force to make a decision relating to citizenship. Her evidence was that the Department of Defence has control over its own files and has an exemption from the Archives Act 1983 (Cth): she did not purport to have searched files held by the Department of Defence. She accepted that, since Mr Cayzer did not in fact enlist, the Department of Defence may not have transferred any documents to the Department of Immigration. She agreed in cross-examination that, prior to 1985, immigration officers were able to administer oaths of allegiance of the purposes of citizenship.

113    Her evidence was that the grant of a certificate of citizenship had, relevantly, always preceded the taking of an oath or affirmation of allegiance. She was not seriously challenged on this evidence, and it is consistent with the legislative scheme.

114    She accepted there could be expedited, or special, procedures for Defence personnel to be granted citizenship. However, she maintained that she did not believe that in 1981 Defence officers were able to administer an oath or affirmation for the purposes of the Citizenship Act. Somewhat hesitatingly, and after being referred to some files in cross-examination which suggested citizenship ceremonies could have occurred on Defence Force bases in the early 1980s, she accepted it was possible this occurred. The files on which Ms Penhaligon was cross-examined were neither produced by Mr Cayzer nor tendered in evidence.

115    Ms Penhaligon was a sincere witness who did her best to assist the Court. To the extent she gave evidence about processes and practices, I accept her evidence. I also accept her conclusion about the possibility that citizenship ceremonies occurred on Defence Force bases.

116    Having seen some of the documents in evidence, Wing Commander Gibb conceded in his evidence that it seemed more likely than not that in 1981 people were required to apply for citizenship prior to enlistment, even though this was not subsequently the case. He also appeared to accept, somewhat reluctantly and after he was referred to an Army newspaper which indicated that a citizenship ceremony had taken place at Victoria Barracks in Melbourne in September 2007, that there may have been citizenship ceremonies carried out on Defence Force bases in the past.

117    Group Captain MacDonald conceded that, for someone like Mr Cayzer, the policy in 1981 was that he would have needed to apply for citizenship prior to enlistment. He also frankly conceded that a person would not take an enlistment oath before being enlisted. He gave some evidence about “mock” oaths that would be given a day or so before the actual enlistment ceremony, as a practice. This plainly was not a scenario applicable to Mr Cayzer’s situation. Group Captain MacDonald said he was “surprised” that there may have been a citizenship ceremony on a Defence Force base. He otherwise could not assist the Court about the conduct of such ceremonies on Defence Force bases or premises.

118    I accept the respondents’ submission that there is no evidence of any record held by the Department of Immigration of any application for Australian citizenship by Mr Cayzer. I also accept, in Mr Cayzer’s favour, that this may be explicable on the evidence before me because he did not proceed to enlist and it is unlikely that any search by or behalf of the Department of Immigration, or the Minister, would have turned up any such application because if it did exist it might well be in the files of the Department of Defence. Taking into account the evidence of Group Captain MacDonald, it would seem likely Mr Cayzer was asked by the enlistment officers to fill in such a form during the enlistment and interview process. I am prepared to find on the balance of probabilities that he did fill in such a form.

119    However, I find that Mr Cayzer has not discharged his burden of proving on the balance of probabilities that he underwent a ceremony in the RAAF recruiting offices in 1981 through which he became an Australian citizen. I am prepared to find on the balance of probabilities that Mr Cayzer was shown a card that had an oath of some kind on it, and that he may have repeated some words which approximated to some of the words he described in his evidence. I am prepared to find that the word “allegiance” may have been included in the words he said. He seemed to have a reasonably clear memory of that word. But I am not prepared to find that he repeated all the words he described in his evidence: his evidence appears to me to have been affected by events that have occurred during the period in which Mr Cayzer has struggled to prove he is a citizen. He has come to know only too well the kind of language which is in fact used in an oath of allegiance during a citizenship ceremony. His confusion about whether he renounced his British citizenship contributes to my view that there was an element of reconstruction in his evidence. I do not find he intended to make up any evidence, but in my opinion his evidence was confused as between what he could actually recall and what he has since learned about citizenship ceremonies and the effect of becoming a citizen, as well as the number of times he has read and participated in the making of arguments on his behalf about the difference between the Queen of Great Britain and the Queen of Australia, which also featured in historical evidence. I am not prepared to find that what occurred was the taking of the oath of citizenship. Nor am I prepared to find it was the taking of the oath of enlistment. It may well be that, for some purpose which cannot now be identified, some kind of oath was required of Mr Cayzer that day. Perhaps he was given an oath to practice, or to see what he would have to swear to in the future. Perhaps he practiced by uttering the words of the oath and that is what he now recalls. Perhaps, for some local or administrative purpose unknown to the witnesses in these proceedings, prospective enlistment candidates were asked to swear to something. There are many possibilities and it is inappropriate for the Court to speculate about which is correct, or to choose between contentions which are no more than competing possibilities: see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [79]-[80] per Spigelman CJ.

120    I do not accept Mr Cayzer’s evidence that any person present that day said words to the effect of “you are now an Australian citizen”. I find Mr Cayzer’s memory is insufficiently reliable for me to be confident that this is what occurred, as opposed to a reconstruction by him based on going over and over these events in his mind and in his memory for a number of years.

121    Whether or not there was, in 1981, a capacity in officers of the Defence Force, or immigration officers present on Defence Force premises, to administer the oath of allegiance as part of an Australian citizenship ceremony, I am not persuaded on the balance of probabilities that any officer engaged in such conduct in Mr Cayzer’s presence on the (unspecified) day he identifies in 1981.

122    Even if I had been persuaded that Mr Cayzer did take an oath in the required form for Australian citizenship on that unspecified day in 1981 at the Air Force recruiting offices in Hobart, that would not have led me to conclude that Mr Cayzer was, at and from that time, an Australian citizen. Nor would it lead me to conclude he has at any time since become an Australian citizen.

123    That is because, as the respondents submitted, there is another condition precedent to the grant of Australian citizenship: namely, the grant of a certificate of citizenship.

124    The respondents are correct to submit that Mr Cayzer himself led no evidence that he had been granted, or given, a certificate of Australian citizenship. Mr Cayzer does not claim to have been granted or given one. I find Mr Cayzer has not discharged his burden of proving that the Minister granted a certificate of Australian citizenship to him in 1981, or at any other time.

125    The discretion in s 14(1) of the Citizenship Act is to “grant a certificate of Australian citizenship” to a person who has made an application. It is the grant of the certificate which confers citizenship on a person.

126    The purpose of s 15 of the Citizenship Act is to identify the point in time at which a person becomes an Australian citizen. The precondition for that point in time to crystallise is that there has been a grant of a certificate of citizenship by the Minister under s 14(1). That is what the terms of s 15(1) provide. The only persons to whom s 15 can apply are persons to whom “a certificate of Australian citizenship has been granted”. Mr Cayzer is not such a person.

127    Therefore, whatever oath Mr Cayzer took in 1981 (and even assuming in his favour it was the very oath of allegiance prescribed in Schedule 2 of the Citizenship Act as s 15(1) contemplated), Mr Cayzer was not, at that time, a person to whom s 15(1) applied. Therefore he could not “be” an Australian citizen in accordance with s 15(1) when he took that oath (even assuming, contrary to my findings of fact, that is what he did).

128    As the authorities to which I have referred earlier make clear, there is no executive authority to grant citizenship. The only way a person may become an Australian citizen is in accordance with a statute providing for the grant of citizenship. Mr Cayzer is not a person who has become an Australian citizen in accordance with Pt III, Div 2 of the Citizenship Act as it stood in 1981. He did not contend to have been granted citizenship in accordance with any later versions of the Citizenship Act and there have in any event been no material changes to the core process by which a person does, or does not, become an Australian citizen.

129    The Citizenship Ground must fail.

The Non-Alien Ground

130    As I noted above, some of Mr Cayzer’s arguments challenge the authority of Shaw itself: for example, the High Court’s approach in Shaw cannot be reconciled with Mr Cayzer’s contention that he is properly considered to be a member of the “people of the Commonwealth” within the terms of s 24 of the Constitution. Senior counsel for Mr Cayzer accepted arguments of this kind were matters for the High Court rather than a single Justice of this Court.

131    This ground must fail on the authority of Shaw, for the reasons explained by the respondents in their submissions that I have set out at [41] above.

132    Senior counsel for Mr Cayzer sought to distinguish Shaw on two bases. The first was the fact that Mr Cayzer (like Mr Taylor in Patterson, it is contended) is an elector for the purposes of s 41 of the Constitution, and Mr Shaw was not. The second basis is that Mr Shaw arrived in Australia in 1974, and not in 1965 as Mr Cayzer did.

133    Although the reasons in Shaw do not illuminate this issue clearly, it appears that Mr Cayzer is correct to submit that Mr Shaw was never eligible to vote: see 218 CLR 28 at 29, and at [131]. In a footnote to [176] of Callinan J’s reasons, in which his Honour noted that Mr Shaw did not have the right to vote, his Honour stated:

See s 93 of the Commonwealth Electoral Act 1918 (Cth). Former British subjects who are not Australian citizens have the right to vote in Australia if they were on the electoral roll before 26 January 1984. The applicant was a British subject resident in Australia before that date, but was not eligible to vote as he had not yet reached the age of eighteen years.

134    It is not, as the respondents contended, simply a difference based on a decision by Mr Shaw not to enrol: it appears he was not eligible to vote at all. Whether or not this fact means that Mr Cayzer has a different constitutional status from the status the majority in Shaw attributed to Mr Shaw turns, it seems to me, on the success of the Franchise Ground. Mr Cayzer’s arguments on that ground, as I set out below, also run into precedential problems due to the decision in Sipka, which mean they cannot succeed before a single Justice of this Court.

135    The second basis for distinguishing Shaw revolves around Mr Cayzer’s contentions about the effect of the Royal Style and Titles Act 1973 (Cth). The change effected by that Act was to give Parliament’s assent, by s 2(1) of the Act, to the Sovereign adopting “for use in relation to Australia and its Territories” the description set out in the Schedule to the Act — in substance, describing the Sovereign as “Queen of Australia”. Mr Cayzer’s contention appears to rely on what was said by McHugh J in Patterson at [131] (building on what was said by the plurality in Nolan at 186) that this change in description affected the meaning of s 117 of the Constitution so that it should be read as “subject of the Queen of Australia”, and therefore subjects of the Queen resident in Australia at the time of this change (such as Mr Cayzer, and Mr Taylor in Patterson) became subjects of the Queen of Australia irrespective of their place of birth. And, the argument continues (again on the basis of McHugh J’s reasoning in Patterson), a person who is a subject of the Queen of Australia for the purposes of s 117 cannot be an alien for the purposes of s 51(xix).

136    The problem with this submission is, as the respondents contend, that the final step in the argument does not survive the effect of [32] of the plurality’s reasons in Shaw, to which I have referred at [41] above. That is especially so when read with [30] of the plurality’s reasons regarding the purpose of s 117 of the Constitution, which gives no support to Mr Cayzer’s contention about the effect of the Royal Style and Titles Act upon s 117. After discussing other provisions of the Constitution, the plurality said the following at [30] with respect to s 117:

It remains to refer to s 117 of the Constitution. This operates in favour of “[a] subject of the Queen, resident in any State”. The Citizenship Act no longer provides for any status of “British subject”. Nor has the law of the United Kingdom, since 1 January 1983, used the term as a status enjoyed in relation to citizenship. Does this mean that, like the expression in the Schedule to the Constitution, “the United Kingdom of Great Britain and Ireland”, s 117 is to be read as it would have been read in 1901? The answer must be “no”, lest the section be deprived of any useful operation. The reading of the text should accommodate the evident purpose of s 117 in present conditions. That purpose is the protection of citizens (but not aliens) resident in one State against the relevant disability or discrimination in another State.

(Footnotes omitted, emphasis added.)

137    In other cases, different views have been taken by Justices of the High Court whether the constitutional terms “alien” and “subject of the Queen” should be read as antonyms, and whether “citizen” and “subject of the Queen” should be considered synonyms: see Nolan at 185-6 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ; Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461 at 505 per Brennan J, 525 per Deane J, 541 per Dawson J, 554 per Toohey J; Singh v Commonwealth [2004] HCA 43; 222 CLR 322 at [149] per Gummow, Hayne and Heydon JJ. It is not necessary to express a concluded view about those questions in this case, nor whether Shaw authoritatively answers them, nor whether Shaw is relevantly distinguishable from the present case on the basis that Mr Cayzer arrived in Australia before the commencement in 1973 of the Royal Style and Titles Act while Mr Shaw did not. The passage at [32] of Shaw requires this Court to hold that the second basis for the Non-Alien Ground fails and the passage at [30] at the very least casts doubt on the anterior steps in the argument advanced by Mr Cayzer in support of the second basis.

The Franchise Ground

138    As I have noted, Mr Cayzer’s arguments on this ground confront the authority of the High Court’s decision in Sipka. His senior counsel frankly conceded this.

139    I am bound to find, on the authority of Sipka, that s 41 of the Constitution preserves only those rights which were in existence before the passing of the Commonwealth Franchise Act 1902 (Cth), and does not confer any constitutional right to vote. In Rowe, French CJ at [9] expressed the proposition this way:

Section 41 protected the electors for the more numerous Houses of Parliament of the States from being prevented, by any law of the Commonwealth, from voting at elections for either House of the Parliament of the Commonwealth. That provision, however, has no effect on the present case as it only protects rights to vote which were in existence at Federation.

(Footnote omitted.)

140    Nor can it be said, consistently with authority, that enrolment to vote (and exercise of voting rights) results in a person who is not a citizen becoming absorbed into the Australian community in a way which places her or him beyond the reach of the aliens power. That proposition is inconsistent with [30] of Gleeson CJ’s judgment in Te (with which Callinan J in Shaw agreed at [176]). It is also inconsistent with the judgment of Gummow and Hayne JJ in Patterson at [234]. Although their Honours were in dissent in Patterson, that statement should in my opinion be taken to represent the law after the High Court’s decision in Shaw, and the approval of Nolan in that case. On those authorities, entitlement to vote being a matter for the exercise of federal legislative power, it is not to be seen as capable of affecting the status of a person as an alien within the meaning of s 51(xix). As the respondents submitted, since 2 April 1984 the constitutional basis for the Migration Act has been found in s 51(xix) and not the immigration power in s 51(xxvii) (see Migration Amendment Act 1983 (Cth); Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [101] per Heydon and Crennan JJ), so that absorption into the community will not take Mr Cayzer out of the reach of the terms of the Migration Act: see Te at [113] per Gummow J.

141    This leaves Mr Cayzer’s contention that he is a member of the “people of the Commonwealth”. I have noted at [130]-[131] above that, in my opinion, Mr Cayzer’s contention that he is not an alien because he is one of the “people of the Commonwealth” cannot be reconciled with the High Court’s approach in Shaw. However, as senior counsel for Mr Cayzer in substance submitted, the scope and application of the constitutional phrase “people of the Commonwealth” has been the subject of less judicial attention than some of the other constitutional provisions relied on in this case.

142    Mr Cayzer contends he is a member of the group referred to in the Constitution as “the people of the Commonwealth” by reason of (as I understand it) all or some of the following matters: his absorption into the Australian community; his entitlement to vote; and his status as a “subject of the Queen” for the purposes of s 117 of the Constitution. As I understand the argument, it focusses on his entitlement to vote — that this renders him a member of the people of the Commonwealth as that term is used in s 24 of the Constitution, and gives him what is called in Mr Cayzer’s submissions “constitutional citizenship”. Much of this argument is expressed to be based on observations by McHugh J in Hwang v Commonwealth [2005] HCA 66; 80 ALJR 125.

143    I confess to not being able to see how the decision in Hwang assists Mr Cayzer. That case concerned the question whether s 198 of the Migration Act (which was a power that had been exercised against the plaintiffs) was within the legislative power of the Commonwealth. The basis for s 198 being in excess of federal legislative power was said to be the proposition that the Commonwealth Parliament could not enact laws concerning citizenship: see Hwang at [4]-[6]. McHugh J held that s 198 was so plainly within power that the plaintiffs’ proceedings should be struck out. In reaching that conclusion, McHugh J made it clear at many places in his Honour’s reasons that he considered the constitutional phrase “the people of the Commonwealth” to be a “synonym for citizenship of the Commonwealth” (see, for example, at [14]), and accordingly (at [17]-[18]) the Constitution contemplated that the federal Parliament could make laws to determine who was and was not to be a citizen of Australia. That being the case, McHugh J found the Citizenship Act (which was indirectly impugned in Hwang) was amply supported by either s 51(xix) or s 51(xxvii), or both.

144    On that basis, it seems to me that Hwang tends against the proposition that the constitutional phrase “the people of the Commonwealth” means anything other than persons who are citizens of Australia by reason of valid laws of the Commonwealth Parliament.

145     It is also necessary to address Mr Cayzer’s submission that the cancellation of his visa deprived him of the right to vote. At trial, Mr Cayzer tendered a document from the Australian Electoral Commission dated 25 May 2015 which shows that he was enrolled to vote in federal elections from 22 January 1979 to 26 June 2006 and from 6 January 2015 onwards. A document from the Tasmanian Electoral Commission also showed that his electoral enrolment in that state ceased on 26 June 2006. Pursuant to s 93(7)(b) of the Commonwealth Electoral Act 1918 (Cth), a person who is an unlawful non-citizen under the Migration Act is not entitled to enrolment. How Mr Cayzer managed to re-enrol after the cancellation of his visa was not explained in the evidence or in submissions, nor was the validity of his re-enrolment raised by Mr Cayzer or the respondents as a matter in controversy in this proceeding. Nevertheless, it may be observed that Mr Cayzer’s entitlement to enrolment on 6 January 2015 appears to depend upon whether he was an unlawful non-citizen at that date.

146    In relation to whether Mr Cayzer would be entitled to enrolment after removal from Australia, s 93(1) of the Electoral Act provides:

Subject to subsections (7) and (8) and to Part VIII, all persons:

(a)    who have attained 18 years of age; and

(b)    who are:

(i)    Australian citizens; or

(ii)    persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984:

(A)    on the roll for a Division; or

(B)    on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 or the Northern Territory Representation Act 1922;

shall be entitled to enrolment.

147    Section 93(8A) provides:

In subsection (1), relevant citizenship law means the Australian Citizenship Act 1948 as amended and in force immediately before the day fixed by Proclamation for the purposes of subsection 2(2) of the Australian Citizenship Amendment Act 1984 and the regulations in force immediately before that day under the Australian Citizenship Act 1948 as so amended and in force.

148    The day fixed by proclamation for the purposes of s 2(2) of the Australian Citizenship Amendment Act 1984 (Cth) was 1 May 1987: Commonwealth of Australia Gazette (No S 68, 24 April 1987) p 3. One effect of the proclamation was to bring into operation, on 1 May 1987, s 7 of the 1984 Amendment Act. That provision repealed Pt II of the Citizenship Act, which provided in s 7 for the status of “British subject”. Prior to the repeal, as noted at [83] above, a person would have the status of “British subject” if she or he was a citizen of, inter alia, the United Kingdom. Therefore, as Mr Cayzer’s name was on the electoral roll immediately before 26 January 1984, and as he would meet the definition of “British subject” in the Citizenship Act if that Act continued in force as it stood immediately before 1 May 1987, Mr Cayzer prima facie satisfies the requirements to be entitled to enrolment pursuant to s 93(1)(b)(ii)(A) of the Electoral Act.

149    However, s 93(1)(b)(ii)(A) does not provide for an absolute entitlement to enrolment unaffected by any other considerations. For example, as already noted, s 93(7)(b) provides that an unlawful non-citizen is not entitled to enrolment, nor are persons who hold a temporary protection visa (s 93(7)(a)), persons of unsound mind (s 93(8)(a)), or persons convicted of treason or treachery (s 93(8)(b)). Further, s 93(1) is expressed to be “Subject to … Part VIII”, which provides for a number of other formal and other requirements that must be met before a valid claim for enrolment can be made, such as evidence of identity (s 98AA) and that the claim must be in an approved form and signed by the claimant (s 98(2)). Section 94A, which is in Pt VII rather than Pt VIII of the Act, provides that a person may apply for enrolment from outside Australia subject to certain requirements including those set out in subs (1):

94A    Enrolment from outside Australia

(1)    A person may apply to the Electoral Commissioner for enrolment for a Subdivision if, at the time of making the application:

(a)    the person has ceased to reside in Australia; and

(b)    the person is not enrolled; and

(c)    the person is not qualified for enrolment, but would be so qualified if he or she resided at an address in a Subdivision of a Division, and had done so for at least a month; and

(d)    the person intends to resume residing in Australia not later than 6 years after he or she ceased to reside in Australia.

…

150    The interaction between s 93(1) and s 94A was not the subject of argument in this proceeding. Nevertheless, it may be observed that, despite his apparent entitlement to enrolment pursuant to s 93(1)(b)(ii)(A) (subject to subs (7) and (8) and to Pt VIII), Mr Cayzer might be prevented from enrolling from outside Australia if the Electoral Commissioner were to take the view that Mr Cayzer cannot satisfy the requirement of s 94A(1)(d) that he “intend[ed] to resume residing in Australia”. I make no findings on that question save to observe that, as a practical matter, there is reason to consider that Mr Cayzer might be unable to remain enrolled or to re-enrol if he were removed from Australia. Senior counsel for the respondents conceded as much in oral argument.

151    Nevertheless, an apparent prima facie entitlement to enrolment under the Electoral Act is not a constitutional right to vote. On the authority of Sipka, I am bound to reject Mr Cayzer’s contentions that he acquired such a right. It may be that as a practical consequence of any removal from Australia Mr Cayzer will be unable to enrol to vote, but in the absence of a constitutional right, any such consequence is likely to be but one of the many adverse consequences faced by people subject to deportation or removal from Australia. It is not a matter which affects the existence of, or validity of the exercise of, the power itself. Therefore this ground fails.

Mr Cayzer’s challenges to the Minister’s cancellation decision

152    I am not satisfied Mr Cayzer has made out any of his challenges to the Minister’s cancellation decision.

The Amendment Act Ground

153    The respondents’ submissions (see [59] above) on this Ground are plainly correct and I accept them.

The Risk to the Community Ground

154    This ground must also fail.

155    The Minister characterised Mr Cayzer’s offending, the sentence for which triggered the cancellation power, in the following way:

Criminal conduct

8.    In 1996, when he was 36 years of age, Mr CAYZER commenced a sexual relationship with his casual employee, a 12 year old child. The relationship, which continued through her high school years and when she went to college, ended just after her 18th birthday.

9.    Regarding the sexual offending to which Mr CAYZER had pleaded guilty, the judge observed that acts of sexual intercourse between Mr CAYZER and the child, which occurred on a regular basis over five years, remained illegal until the victim turned 17.

10.    The judge remarked that what Mr CAYZER did to the victim devastated her, who “suffers from violent nightmares, sleep disturbance, anger, guilt and trust issues and has interpersonal difficulties”.

11.    Her Honour sentenced Mr CAYZER to four years imprisonment with a non-parole period of two and a half years, and ordered that he be placed on the register of offenders required to report under the Community Protection (Offender Reporting) Act 2005 for a period of five years.

12.    I adopt the court’s observations and consider Mr CAYZER’s sexual offending as very serious, and that the Australian community would regard this offence as repugnant.

13.    I also consider that the impact of Mr CAYZER’s offending on the victim contributes to the seriousness of the crime, and that the crime against the child victim — a vulnerable member of the community — heightens the seriousness of his conduct.

14.    I find that the conviction and the sentence of four years imprisonment reflect the seriousness of his offending.

156    That characterisation was plainly open to the Minister in the circumstances of the offences for which Mr Cayzer had been convicted and the nature of the remarks made by the sentencing judge.

157    There is nothing irrational in the Minister taking into account Mr Cayzer’s proven disregard for the law as affecting the risk that he might re-offend. Nor is there anything legally unreasonable about the Minister’s conclusion at [26] of his reasons that:

… while acknowledging Mr CAYZER’s efforts to rehabilitate, his remorse and supporting character references, as well as the assessment of 5 February 2013 that he had low treatment needs, I adopt the sentencing judge’s comments, especially on Mr CAYZER’s risk of re-offending and prefer the judicial assessment to the psychological report of 2 November 2011. I find that there remains a risk, albeit even if a low one, that Mr CAYZER will re-offend. I take into consideration that physical and psychological harm could result to a vulnerable member of the Australian community if he were to do so.

158     On the basis of this finding, the Minister concluded at [57] of his reasons that:

… in making my decision, I have taken the view that despite the strong countervailing considerations articulated above, they are not sufficient to justify not to cancel Mr CAYZER’s visa, since even a low risk of re-offending could result in serious harm to a member or the Australian community.

159    Contrary to Mr Cayzer’s submissions at [103], the Minister did not find the low risk of re-offending to be “intolerable”. Rather, as it was open to him to do, he balanced the low risk of re-offending against the hardship and prejudice he acknowledged would be suffered by Mr Cayzer and his family if Mr Cayzer’s visa was cancelled. In doing that, the Minister looked at the risk of Mr Cayzer committing an offence in the future which could result in serious harm to a member of the Australian community. In Stretton at [16], Allsop CJ recognised that this kind of reasoning was legally permissible, albeit that it was reasoning which resulted in individual hardship.

160    Contrary to Mr Cayzer’s written submissions at [105], there is nothing in the Minister’s reasons which indicates that he was adopting some kind of inflexible policy that any person who had committed a crime of violence would be “expelled” and approached his assessment of the risk to the Australian community through this prism. It is clear the Minister considered the very particular circumstances of Mr Cayzer’s offending, and the other detailed matters to which he referred in his reasons.

161    A conclusion such as the one reached by the Minister in this case is not, of itself, legally unreasonable: see Stretton at [5] and [7].

The Character Test Ground

162    The respondents’ submissions, which I have set out at [61] above, should be accepted. The Minister expressly relied on s 501(6)(a) in his reasons at [6]. The terms of s 501(6) are expressed in the alternative and only one need be satisfied for the precondition to the power to arise.

The Northey Report Ground

163    It is not disputed that two pages of Dr Northey’s report were indeed missing from the copy of the report which accompanied the brief to the Minister for the purposes of him making his decision. That omission was one made by Mr Cayzer’s representatives, as Dr Northey’s report was part of the material submitted on Mr Cayzer’s behalf by his then legal representatives.

164    Mr Cayzer submitted that the Northey report could not have been read in much detail by the Minister (nor perhaps by those who briefed him) because it would have been obvious the document was incomplete. That submission has some force at a general level.

165    However, senior counsel for Mr Cayzer could not point to anything in the two missing pages which he contended was material, critical, or important to the Minister’s consideration of what Dr Northey had to say about Mr Cayzer. Similarly, senior counsel for Mr Cayzer made no submission to the effect that the way in which Dr Northey’s report was used in the briefing notes to the Minister was incomplete or incorrect because of the two pages missing from the report.

166    The first of the two missing pages contains statements regarding Mr Cayzer’s alcohol consumption, his difficulties with gambling and associated behaviours, and a description of a medical problem suffered by Mr Cayzer. Those matters are at least mentioned in other parts of the report, albeit not with all of the details contained in the missing page.

167    The second missing page discusses matters including Mr Cayzer’s current family life and his prior history of offending, as well as characterising him as an “extremely psychological [sic] vulnerable individual”. Again, those are matters that, in substance, are covered elsewhere in the report.

168    I am not persuaded the circumstances which arose in the present case are comparable to the approach relied on by the respondents and set out by the Full Court of this Court in Yao at [61]. Yao concerned three procedural fairness arguments. They are set out by Perry J (with whom White and Wigney JJ agreed) at [55]-[57] of her Honour’s reasons:

First, with respect to ground 6 of the notice of appeal, Mr Yao submitted that the tribunal was in error in not “bypass[ing] DIAC’s policy” to help him to obtain a renewed Chinese passport and use that to prove that he is currently a Chinese citizen. The failure to provide such assistance was said to constitute a breach of the natural justice hearing rule.

Second, Mr Yao submitted in support of ground 12 of the notice of appeal that, given that the tribunal had rejected his application on the ground that it was not satisfied on the evidence that he was a citizen of China or would acquire Chinese citizenship immediately on approval of his renunciation application, the primary judge breached the rules of natural justice in dismissing the applicant’s interlocutory application seeking orders that the minister provide the necessary evidence and assistance to renew his Chinese passport.

Third, in relation to ground 9 of the notice of appeal, Mr Yao submitted that the primary judge, in dismissing his interlocutory application for orders that the minister assist him in obtaining a “renewed” Chinese passport, acted in breach of the natural justice hearing rule as the ruling had the consequence that he lost the opportunity to present his renewed Chinese passport as evidence of his citizenship before the court.

169    It is apparent from this description that the kind of assistance the appellant contended he should have been afforded for the tribunal’s (and the court’s) obligations of procedural fairness to be satisfied was considerable indeed. The conduct the appellant contended was required clearly amounted to active assistance, including it would appear consular assistance, to facilitate him establishing the matters he needed to establish to succeed on the review. In those circumstances it is little wonder Perry J found at [59] that these contentions misconceived the role of the Minister and the tribunal. Perry J then said (at [61]) in the passage upon which the Minister relies:

Finally, the contention that the matters pleaded in grounds 6 and 12 constitute a breach of natural justice is premised upon a misunderstanding of the requirements of the hearing rule. The natural justice hearing rule relevantly requires that a person whose interests may be adversely affected by a decision has a right to be heard. That in turn is satisfied by the provision of an opportunity to deal with matters adverse to the person’s interests that are “credible, relevant and significant”: Kioa v West (1985) 159 CLR 550 at 629; 62 ALR 321 at 380 per Brennan J: approved in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 115 ALD 493; [2010] HCA 23 at [19] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. Where the opportunity is given, the requirements of the natural justice hearing rule are met irrespective of whether or not the person in fact takes advantage of that opportunity: see, for example, Allesch v Maunz (2000) 203 CLR 172; 173 ALR 648; [2000] HCA 40 at [38] per Kirby J. It is not part of the rules of natural justice to require that the decision-maker seek to remedy the failure by the person affected by the decision to take advantage of the opportunity, such as by seeking to require another person to undertake investigations and obtain evidence from a third party.

170    I do not consider that the circumstances of Mr Cayzer’s procedural fairness argument in the present proceeding — the unintentional omission of two pages from Dr Northey’s report — fall into the same category. It may be reasonable to expect that those advising the Minister and preparing a brief to him would be checking (and reading) the material with sufficient care that such an omission would be picked up. Without allocating responsibility for the omissions, if it is the fact that the Minister failed to consider information material to his decision about Mr Cayzer because of the omission of those two pages, it may well have been arguable that his cancellation decision was affected by jurisdictional error.

171    The error might be characterised in a number of ways. It might be characterised as a failure to consider relevant information rather than a denial of procedural fairness: see, eg, Tickner v Chapman [1995] FCA 1726; 57 FCR 451 at 464 per Black CJ, 476-8 per Burchett J, 497-99 per Kiefel J. In Tickner, s 10(1) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) authorised the making of a decision by the Minister only after considering a report and any attached representations given to him pursuant to s 10(4) of the Act. The evidence was that the Minister himself had no physical access to the representations made, and what he knew of them came from reading the report and from discussions with one of his advisers. The Full Court in Tickner held this was not consideration for the purposes of s 10(1). In the present case, if it could be said that the Minister under s 501(2) had an implied obligation to consider the material put before him, a failure to do so might result in the Minister failing to discharge his task under s 501(2).

172    Where the material omitted is assessed objectively as being capable of affecting the outcome of a decision, other characterisations of the nature of the error as jurisdictional might also be available. In Minister for Immigration and Border Protection v Truong [2016] FCAFC 54, the Full Court held (at [33]-[36]) that three pages of a seven-page apprehended violence order which had not been before the tribunal due to a copying error contained information that could conceivably have led the tribunal to reach a different conclusion, and therefore the tribunal’s decision was affected by jurisdictional error. Neither the Full Court nor the Federal Circuit Court (see Truong v Minister for Immigration [2015] FCCA 2319) identified the nature of the error in any detail. At [20], the Federal Circuit Court concluded the error was a failure “to properly conduct the review in respect of the applicant’s case”.

173    There are also occasions where a failure by a tribunal to take minimally reasonable steps to ensure submissions and other material which a person intends to place before the tribunal are in fact available to the tribunal may also constitute a denial of procedural fairness: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592; 164 FCR 14 at [50]. In SZJBA, the appellant’s migration agent sent a facsimile cover sheet to the tribunal stating it was accompanied by a five-page submission, but no submission was attached. The tribunal proceeded to make its decision without inquiring about the missing pages, despite the migration agent’s telephone number appearing on the cover sheet. Allsop J held that the failure by the tribunal “to take the simplest administrative steps to follow up the information was to deny or destroy, after the event, the genuineness and reality of the invitation to comment that had been given”: at [50].

174    No submissions of the kind I have referred at [171]-[173] above were put or developed by senior counsel for Mr Cayzer.

175    Nor did, or could, senior counsel point to anything contained in the two missing pages (and that was not contained elsewhere in the report) which might be described as critical or material to the Minister’s decision. Having looked myself at what is said in the two missing pages of Dr Northey’s report, in my opinion, there is nothing in those two pages which was additional, or different, to the remainder of Mr Cayzer’s material and submissions placed before the Minister in a way which could justify a conclusion that if the Minister had read, or considered, those two pages, he might “conceivably” have reached a different conclusion, which was the way in which the Full Court in Truong expressed the threshold. Truong is therefore distinguishable.

176    Although the Ground was not argued in this way, I find that the fact of the missing pages is insufficient to support a conclusion that the Minister failed to consider relevant information. Of course, as a first step, Mr Cayzer’s submissions would have needed to develop how it was that such an obligation could and should be implied in s 501(2).

177    Nor does the fact that the Minister did not request the missing pages from Mr Cayzer give rise to an inference that Mr Cayzer was denied a genuine opportunity to put material before the Minister. In SZJBA, the appellant’s entire written submission to the tribunal was plainly missing from the facsimile, and the tribunal failed to make basic inquiries to obtain it. Here, two pages were missing from a 19-page report that itself was only part of a significantly larger set of materials provided to the Minister by Mr Cayzer. Without any submissions on behalf of Mr Cayzer about how what was contained in those two pages was material to the decision and not otherwise contained in the material submitted on his behalf and considered by the Minister, I do not consider a denial of procedural fairness arose as a result of the omission.

178    This ground must fail.

The Fresh Information Ground

179    The submissions of the respondents on this ground, which I have set out at [63] above, are clearly correct and this Ground must fail.

The Direction 55 Ground

180    Direction 55 is a ministerial direction made pursuant to s 499 of the Migration Act. Its purpose is to provide detailed, and sometimes prescriptive, guidance to decision makers about how the discretion under s 501 should be exercised, where it is not exercised by the Minister personally. However, it does not purport to direct any decision maker as to the outcome of the exercise of the s 501 discretion in any particular case: see Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48 at [50]-[57] per Kenny and Mortimer JJ, Dowsett J agreeing.

181    The Minister himself is not bound by any direction made under s 499: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [6] per Allsop CJ and Katzmann J. Thus, any failure by the Minister to take into account a consideration which Direction 55 requires decision makers to take into account is highly unlikely to be capable of amounting to jurisdictional error (cf Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; 229 FCR 290 at [14] per Flick J, Katzmann and Wigney JJ agreeing), unless some other error is apparent, such as a misunderstanding by the Minister of the law, or of his statutory task.

182    This submission was not developed beyond the way it was put in the statement of claim, which was simply reproduced in Mr Cayzer’s written submissions. In both locations it is put as a failure by the Minister to consider or be “mindful” that there should be a higher tolerance for criminal conduct where the person affected has lived in the Australian community for most of their life, or from a very young age.

183    As the respondents submitted, the Minister did take this matter into account, even if he was not lawfully required to do so because the terms of Direction 55 did not apply to his personal decision under s 501. At [55] of his reasons, the Minister said:

I also considered the countervailing considerations in Mr CAYZER’s case including his long and deep ties to Australia, especially to his immediate family members who are all Australian citizens resident in Australia, and his employment history, as well as the best interests of his four minor children and two minor step grandsons. I gave weight to the consideration that higher tolerance should be accorded to him given that Mr CAYZER spent all of his formative years in Australia arriving as a young child of five, has lived here for 48 years, and was aged 36 and had lived in Australia for some 31 years when he committed the sex offence.

184    This ground must fail.

The Best Interests of the Child Ground

185    This ground is also put as a failure by the Minister to consider or “be mindful” of the interests of Mr Cayzer’s children. In the statement of claim, particular damage is alleged to have been suffered in the past by the two youngest of his biological children, and it is alleged that damage to those children will continue and possibly be exacerbated if Mr Cayzer is compelled to leave Australia. It is unnecessary to set out those quite personal details about Mr Cayzer’s two youngest biological children in these reasons.

186    Mr Cayzer repeats the contention that the Minister’s findings on these issues are “flawed” because he relied, at least in part, on Dr Northey’s report which was incomplete. In my opinion the conclusions I have reached above at [163] to [178] about the missing pages of Dr Northey’s report apply equally to the way the argument was put under this heading, and that aspect of this ground must fail.

187    Mr Cayzer does not contend that the Minister failed altogether to have regard to the best interests of his children. Rather, at [129]-[131] of his written submissions specific contentions are made about medical and psychological problems experienced by the two youngest of Mr Cayzer’s biological children, who were at the time of the Minister’s decision aged eight and 11. These conditions were the subject of a letter by one Dr Bower, which was in evidence before me.

188    The way the argument was outlined in the pleadings, and in the written submissions, tended to suggest that Dr Bower’s report, and in particular the matters set out at [129]-[131] of Mr Cayzer’s written submissions in this proceeding, was overlooked or ignored by the Minister in making his decision.

189    Initially, it seemed to me that Mr Cayzer’s submissions on this issue had force, especially by reference to the approach taken by Allsop J (as his Honour then was) in Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450; 119 FCR 454, and what is comprehended by the phrase “best interests”.

190    However, there is an insurmountable factual difficulty with this ground, which the submissions on behalf of Mr Cayzer obscured, and which was not squarely confronted by the Minister’s submissions.

191    The letter from Dr Bower is in fact dated 19 October 2015 and was sent to the Minister under cover of a letter dated 28 November 2015. Mr Cayzer’s evidence is that he sent the letter and its attachments by email on 5 November 2015. The inconsistency in dates is not material to the reasoning on this ground of review. In his affidavit (at [126]-[127]), Mr Cayzer describes the contents of Dr Bower’s letter as “new medical evidence” that has come to light

192    Therefore, this communication post-dates the Minister’s decision by more than a year. On the evidence, the letter sent by email on 5 November 2015 was Mr Cayzer’s first direct response to the Minister concerning the decision made over a year earlier (apart from the commencement of proceedings to challenge the decision).

193    Dr Bower’s letter obviously could not have been before the Minister when he made the visa cancellation decision on 27 October 2014. That is why it is not referred to in any of the briefing material, nor in the Minister’s decision, and why the two objectively significant issues described by Dr Bower as affecting Mr Cayzer’s two youngest biological children do not feature in the Minister’s reasons for decision.

194    The factual flaw in the submissions made on behalf of Mr Cayzer means this aspect of this ground cannot succeed.

195    As to the other ways in which it may be contended the Minister failed to have regard to the best interests of Mr Cayzer’s children, in my opinion these contentions must also fail. The respondents submit, correctly, that the Full Court in Stretton held that the Minister was not required to consider the best interests of the child in a decision under s 501(2) personally to cancel a visa of someone who has failed to pass the character test: see Stretton at [85]-[86], per Griffiths J, Allsop CJ agreeing at [1], Wigney J agreeing at [90].

196    Unlike the situation in Stretton, whether or not he was obliged to do so, the Minister did in fact expressly consider the best interests of Mr Cayzer’s children. Having elected to do so, he was obliged to do so in a way which was procedurally fair and in accordance with law. In Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319, the High Court said at [77]-[78], in relation to powers to consider and decide visa applications of “offshore entry persons” as defined in the Migration Act:

Because the Minister was not bound to exercise power under either s 46A or s 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the Minister decide to exercise the power or, if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. …

The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.

(Citation omitted.)

197    Applying those observations to the present case, having elected to consider the best interests of Mr Cayzer’s children, the Minister was required to do so in accordance with established principles of Australian law concerning the way in which the best interests of children should be considered by those exercising public power. Those principles are well known and are set out in authorities including Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273, especially at 292-4 per Mason CJ and Deane J, 302-3 per Toohey J, 304-5 per Gaudron J, and Perez, especially at [118]-[121].

198    In this case, there is nothing in the way the Minister dealt with the best interests of Mr Cayzer’s children which is inconsistent with those principles, or which gives rise to any other errors of a jurisdictional kind. Therefore this ground fails.

199    I note that no argument was made of the kind set out by Allsop J in Perez at [70], based on the High Court’s decision in Teoh and the need for a decision maker to give primary consideration to the best interests of children affected by a decision such as this. That is, as Allsop J noted, an argument based on the requirements of procedural fairness. In exercising his power under s 499 to make Direction 55, the Minister determined that the best interests of any children of a person subject to visa cancellation should be a primary consideration. Rather than being expressed in terms of procedural fairness, Direction 55 gives the best interests of any children a primary place in decision-making as not only a mandatory consideration but also as a consideration to which particular weight should be attached. However, as I have noted, the Minister is not, on the authorities of this Court, bound by Direction 55 when he makes a decision himself to exercise the cancellation power under s 501. Independently of Direction 55, whether or not the principles in Teoh, as applied and explained by Allsop J in Perez, could have been applied to the Minister’s decision was not, as I have noted, an argument made by Mr Cayzer. I note also this was not an argument considered in Stretton.

The Deemed Decision Ground

200    This is another ground which is not developed in the written submissions: rather, the allegations in the statement of claim are simply duplicated. It is difficult to understand what is being alleged.

201    The Minister’s cancellation decision was made on 27 October 2014. Approximately a year later, Mr Cayzer sent the Minister a letter in which he set out a number of grounds as to why the Minister’s cancellation decision was invalid. The letter is dated 28 November 2015, but Mr Cayzer deposes that he sent it by email on 5 November 2015. Nothing turns on the precise date on which the letter was sent. I infer from its contents, and its similarity with the nature and expression of the arguments put on his behalf in this proceeding, that Mr Cayzer was assisted with the drafting of the letter. The letter sets out most of the grounds now raised in this proceeding which are said to invalidate the Minister’s decision.

202    It is unclear from the submissions whether what is now alleged is that the Minister should have been immediately persuaded by one or more of the grounds in the letter and revoked his decision. It seems to me this may be the thrust of the submission, since there are passages in the letter at the start and at the end (but especially at the start) which invite the Minister to “reconsider the cancellation of my visa”.

203    Even if this is the argument, there is no basis on which it could be said that the Minister was under any legal obligation to reconsider this decision, nor that the fact of what was written in Mr Cayzer’s letter could, in law, produce the effect that the Minister had made some kind of fresh decision. Further, as the respondents submit, no relief is sought based on this ground.

204    This ground has no foundation in law and must fail.

CONCLUSION AND ORDERS

205    None of the grounds and arguments advanced on behalf of Mr Cayzer have been successful. The Minister has sought the usual orders as to costs, and I see nothing in the evidence to suggest that such an order is inappropriate in the circumstances of this case. Indeed, I am positively satisfied such an order is appropriate, given that this proceeding has had its unwieldy and inefficient elements, due to the shifting nature of the contentions put on behalf of Mr Cayzer and the shifting nature of the evidence relied upon.

206    The application is dismissed, with costs.

Associate:

Dated:    13 July 2016