FEDERAL COURT OF AUSTRALIA

Murad v Assistant Minister for Immigration and Border Protection [2016] FCA 876

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application under s 476A of the Migration Act 1958 (Cth) for judicial review of a decision made by the respondent, the Assistant Minister for Immigration and Border Protection (the Minister), to cancel the applicant’s Class AH Subclass 101 Child visa on character grounds. That class of visa allowed the applicant to remain in Australia indefinitely. The decision was made under s 501(2) of the Migration Act.

2    For the reasons that follow, the application must be dismissed with costs.

Background

3    On 18 December 2001, the applicant arrived in Australia with his family from Lebanon. At that time he was 15 years old. He has not left Australia since arriving and is now 29 years of age, turning 30 at the end of this year.

4    The applicant and his family are of Palestinian origin. He does not hold the citizenship of any country. It is common ground that he is stateless. A consequence of the visa cancellation decision is that so long as it stands and there is no other change in the applicant’s circumstances, he is likely to remain in immigration detention indefinitely.

5    The Minister’s decision to cancel the applicant’s visa was based on him failing the “character test” by reason of having a “substantial criminal record”, as detailed below: see ss 501(2), 501(6)(a) and 501(7)(c) of the Migration Act. The details below as to the offending are drawn from the remarks on sentence which were part of the material before the Minister.

6    The prosecution case on sentence in the Sydney District Court for the offences giving rise to the applicant’s substantial criminal record was that in 2010 – 2011, the applicant was a member or associate of an outlaw motor cycle gang known as Notorious, which was in conflict with another such gang called the Comancheros. However, the sentencing court was unable to be satisfied that the applicant was personally a member of Notorious, although it does not appear to be disputed that the applicant’s brother was a member of a different motorcycle gang.

7    In November 2010, the applicant was shot and seriously injured by people he believed to be associated with the Comancheros. The applicant sustained a broken femur, and perforated bowel, which for some six months required the use of a colostomy bag.

8    While the applicant was in hospital following the shooting, police recorded a conversation using an authorised listening device during which the applicant said that the person who shot him should have killed him and made a big mistake by not killing him.

9    On 21 February 2011, the applicant attempted a home invasion in company of one or two other persons. He was armed with a 12-guage pump-action shotgun. He had this in his possession for the purposes of intimidating the occupants of the house or causing them to fear physical violence. It seems there were at least two other offenders with him, both of whom were armed, one with a pistol and the other with a knife.

10    At the time of the attempt, a woman and two children of unstated age were at the house. The occupants were awakened by the noise and the son went to the front door and confronted the applicant who ran away. The son followed the applicant through the courtyard and into the street. The applicant then turned and pointed the shotgun in the direction of the house and discharged it twice, hitting the front wall of the house both times. One of the gunshots hit the wall below the height of the son, missing him by about a metre. The son is apparently the person referred to as the victim of the attempted home invasion.

11    The applicant and his co-offenders then left the area in a car. Apparently later the same day, police stopped a car driven by a co-offender and found the shotgun in the boot of that car with three unfired cartridges of the same brand as those found at the victim’s house. The applicant was not authorised to be in possession of firearms.

12    On 28 March 2011, police executed search warrants at a storage unit rented in the name of someone else because the applicant did not have a licence. Various firearms and related items were found that were linked to the applicant and resulted in charges against him as detailed below.

13    On 3 May 2011, the applicant had a conversation with another person, which was lawfully recorded by police. During that conversation the applicant admitted going to the victim’s house, admitted that he was armed with a shotgun, and recounted the events of the incident. According to the facts tendered on sentence, the victim was a member of the Comancheros.

14    On 30 June 2011, the applicant was arrested. As was his right, he declined to be interviewed. He was apparently in possession of some vials of testosterone at that time. The applicant must have been in custody, bail refused, from the time of his arrest because his later jail sentence was backdated to 30 June 2011, rather than reduced to take into account broken periods in custody prior to sentence.

15    On 24 July 2012, as his trial was about to begin, the applicant pleaded guilty to two offences in a first indictment for offences committed at the time of the attempted home invasion, being:

(1)    a specially aggravated attempt to enter a dwelling house with intent to commit a serious indictable offence, namely intimidation – maximum penalty of 20 years’ imprisonment and no standard non-parole period; and

(2)    firing a firearm at a dwelling house with disregard for the safety of other persons – maximum penalty of 14 years’ imprisonment and no standard non-parole period.

(A standard non-parole period is a legislative guidepost provided for some offences in NSW required to be considered in deciding what should be the minimum period of a sentence of imprisonment to be spent in custody, along with the maximum penalty and other considerations: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 132 [27].)

16    On sentence for the first offence in the first indictment above, the sentencing court took into account on a “Form 1” schedule an offence of damaging property, which on indictment had a maximum penalty of five years’ imprisonment. Scheduling offences under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is a means by which usually lesser offences can be finalised to the mutual benefit of the prosecution and defence, usually resulting in a longer sentence for the more serious offence on the indictment, but fewer convictions and no unresolved charges: see Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at 155 [18].

17    On 21 August 2012, again as his trial was about to begin, the applicant pleaded guilty to two more offences on a second indictment, being the following offences committed on 28 March 2011, as a result of the police search warrant executed that day:

(1)    possession of a self-loading rifle without the authority of a licence or permit – maximum penalty of 14 years’ imprisonment, standard non-parole period of three years; and

(2)    possession of a pump-action shotgun without the authority of a licence or permit – maximum penalty of 14 years’ imprisonment, standard non-parole period of three years.

18    On sentence for the second offence in the second indictment (possession of the shotgun), the court took into account 10 offences on a schedule. Nine of the offences in the schedule also took place on 28 March 2011, being:

(1)    three offences of not storing a firearm safely;

(2)    four offences of possession of a prohibited weapon, namely silencers;

(3)    one offence of possession of a .22 calibre firearm; and

(4)    one offence of possession of ammunition (525 rounds of .22 calibre, 224 rounds of 9 mm, 37 boxes of .223 calibre, 38 boxes of 7.62 mm, a further box containing 20 rounds of 7.62 calibre and some other unspecified ammunition).

The remaining offence on the schedule took place on 30 June 2011, being possession of a prescribed restricted substance, namely testosterone, at the time of the arrest of the applicant.

19    Because the applicant did not plead guilty until his trial was due to begin for each indictment, the reduction of his sentence for that reason was confined to a utilitarian discount of about 10 per cent. The sentencing court was also satisfied that the applicant was genuinely remorseful and further reduced his sentences to reflect that remorse.

20    The sentencing judge observed that the applicant did not have the benefit of prior good character due to a number of previous convictions. The court was satisfied that the applicant’s reason for the attempted home invasion in February 2011 was to exact revenge as a consequence of being shot in November 2010. The court was also satisfied that the attempted home invasion offence in February 2011 was premeditated.

21    The sentencing judge also had evidence before him of the applicant having mental health issues and substance abuse issues, but was not satisfied that there was any causal connection between those issues and any of the offences. His Honour considered the attempted home invasion offence carefully, taking into account that no one was physically hurt, but that offences like that had the capacity to engender fear in the individuals which can be long term in nature.

22    The sentences imposed for the offences were structured in a way that involved a degree of consecutiveness and a degree of concurrency. The precise breakdown of the sentences is not of significance, save to note that the shortest head sentence was two years and three months and the longest head sentence was three years and two months, the shortest non-parole period was 12 months and the longest non-parole period was 18 months. The significance of this is that none of the sentences was less than 12 months, be it as a head sentence or non-parole period. The overall head sentence was for four years and eight months with a non-parole period of two years and eight months, leaving a period on parole of two years if the applicant was released when eligible (as in fact happened). The applicant therefore had a “substantial criminal record” as defined in s 501(7)(c) of the Migration Act both in respect of each of the four individual sentences imposed, and overall.

23    The applicant’s period in prison commenced on 30 June 2011 and concluded when he was released on parole at the first opportunity on 28 February 2014. (On 11 December 2014, well after the applicant’s release on parole, s 501(3A) of the Migration Act commenced, which now provides for mandatory cancellation for a person in the applicant’s position if still in custody at the time of the decision).

24    On 21 January 2014, just over a month before the applicant’s release on parole, he was sent a letter by the Department of Immigration and Border Protection, providing him with a notice of intention to consider cancellation of his visa.

25    On 29 February 2016, two years after the applicant’s release on parole, his head sentence (and therefore parole period) expired. A report from his parole officer indicated that he had been compliant with reporting and his response to supervision had been satisfactory. His reporting frequency had been reduced by that time from fortnightly to six-weekly. The applicant was not convicted of any further offences during his period on parole. He had obtained full-time employment as a plumber. He was assessed as having a medium to low risk of reoffending.

26    On 3 March 2016, the Minister decided to cancel the applicant’s visa. On 11 March 2016, after more than two years in the community on parole, the applicant was taken into immigration detention.

27    The applicant has two children aged eight and nine. Although he is separated from his former partner and the mother of his children, he has been in continuous contact with and periodically looked after his children over more than two years between the time of his release on parole and the time he returned to immigration detention. The material before the Minister indicated that during the applicant’s time in correctional centres he spoke to his children daily and saw them frequently, even though he was located outside of Sydney for part of his sentence. After release he continued to have daily contact with his children and spent his weekends with them. He has remained in daily contact with them since being detained on 11 March 2016.

28    The Minister was provided with a detailed submission by the Department for consideration of cancellation of the applicant’s visa under s 501(2) of the Migration Act. The submission was 17 pages long and 117 paragraphs. It was accompanied by some 34 attachments, many with further attachments, comprising 165 pages. Included amongst the material were the following documents which have assumed some importance in the context of this application for judicial review:

(a)    judgment of his Honour Judge Arnott on bail of 3 May 2012;

(b)    remarks on sentence of his Honour Judge Sides of 11 February 2013;

(c)    personal details forms completed by Mr Murad recording details of his contact with his children and health conditions; and

(d)    letters written by Mr Murad, his ex-partner and his mother.

29    As noted above, on 3 March 2016, the Minister decided to cancel the applicant’s visa. The record of the decision signed by the Minster recorded the following:

VISA CANCELLATION UNDER S501(2) OF MIGRATION ACT 1958 – DECISION BY THE ASSISTANT MINISTER FOR IMMIGRATION

I have considered all relevant matters including an assessment of the character test as defined by s501(6) of the Migration Act 1958, and all evidence before me provided by, on behalf of, or in relation to Mr Saber Naser MURAD in connection with the possible cancellation of his Class AH, Subclass 101 Child Visa.

…

Cancellation outcome

… I reasonably suspect that Mr MURAD does not pass the character test and Mr MURAD has not satisfied me that he passes the character test. I have decided to exercise my discretion under s501(2) of the Migration Act to cancel Mr MURAD’s visa. I hereby cancel Mr MURAD’s Class AH, Subclass 101 Child Visa. My reasons for this decision are set out in the attached Statement of Reasons.

30    The attached statement of reasons was just over five pages in length and ran to 55 paragraphs. It will be necessary to return to some particular components of those reasons, but for present purposes it suffices to indicate that the Minister’s statement of reasons:

(a)    set out the applicant’s convictions and then stated:

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

(b)    addressed the exercise of discretion, having found that the applicant did not pass the character test, stating:

10.    Having found that Mr MURAD does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to cancel Mr MURAD’s visa, taking into account factors that I considered weighed against and in favour of cancelling Mr MURAD’s visa. In making my decision I was mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia.

(c)    stated reasoning in relation to the issues of:

(i)    criminal conduct;

(ii)    risk to the Australian community;

(iii)    best interests of minor children;

(iv)    expectations of the Australian community;

(v)    international non-refoulement obligations;

(vi)    ties to Australia; and

(vii)    health,

followed by a conclusion outlining the ultimate reasons for cancellation.

31    The application for review focuses on two aspects of the Minister’s decision, namely the consideration of the offences described above by which the applicant acquired a substantial criminal record, and the consideration given to the best interests of the applicant’s minor children.

32    In relation to the issue of criminal conduct, the Minister’s reasons record the following:

Criminal conduct

11.    In making my decision I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been law abiding.

12.    In considering the nature and seriousness of Mr MURAD’s criminal offending I note that violent offences are viewed very seriously.

13.    I had regard to the circumstances of Mr MURAD’s recent offending, as set out above, noting that the court sentenced Mr MURAD to a term of fifty six months imprisonment.

14.    I find that the sentence Mr MURAD received is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as serious.

15.    I considered the nature and seriousness of Mr MURAD’s criminal offending or other conduct to date, factors including the frequency of the offending, whether there is a trend of increasing seriousness and the cumulative effect of repeat offending.

16.    I note that Mr MURAD has a long criminal history in Australia, punctuated with episodes of violence and disregard for the law. I took into account Judge Sides statement of 11 February 2013, who was of the view that Mr MURAD does not have the benefit of prior good character.

17.    Despite the Court’s measures of deterrence, Mr MURAD has continued to reoffend, incurring a range of convictions. In particular, I find Mr MURAD’s convictions associated with weapons are very serious offences.

18.    I find that Mr MURAD has a long criminal history in Australia characterised mostly by dishonesty, drugs, driving, weapons and offences of violence, which have resulted in terms of imprisonment.

19.    I have taken into account the offences that resulted in terms of detention or imprisonment, as a further indication of the seriousness of the offending. I have considered that the court viewed the offending as serious.

20.    I have taken into consideration that, Mr MURAD’s repeated offending has had a cumulative effect on the Australian community. Members of the community who were subjected to Mr MURAD’s offences against the person are likely to have suffered emotional harm, in addition to the physical harm. Community resources have also been expended on Mr MURAD on multiple occasions, including in relation to policing, court and prison resources.

33    In relation to the best interests of minor children, the following paragraphs of the Minister’s reasons are relevant:

Best interests of minor children

26.    I gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests are affected by cancellation of Mr MURAD’s visa.

27.    Mr MURAD states that he has two children, Mariah Murad and Aycer Murad, whom he has a close relationship with. The children currently reside with their mother and Mr MURAD has care of the children on the weekend.

28.    Given that MR MURAD continues to have an active role in the care and upbringing of the children, I find that it is in the best interests of Mariah Murad and Aycer Murad not to cancel Mr MURAD’s visa.

29.    Taking this into consideration, I accept that Mr MURAD’s children would be emotionally affected by a visa cancellation and that this would deprive the children from having the opportunity to have close and direct personal contact with him. Although, this would be limited to an extent as Mr MURAD does not have full time daily care or full time responsibility of the children.

34    Under the heading “Ties to Australia”, along with references to the applicant’s age, migration, residential, work, family and social history and circumstances, the Minister’s reasons also stated:

44.    I have considered the effect of visa cancellation upon Mr MURAD’s immediate family in Australia and accept that those persons would experience emotional hardship. I have taken this into account and also recognised the effect of visa cancellation for his two minor children and family members in Australia.

35    In the conclusion component of the statement of reasons, the Minister’s reasons contain the following paragraphs:

49.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act, (2) Direction 65 and (3) all other evidence available to me, including evidence provided by, or on behalf of Mr MURAD.

50.    I find that the Australian community could be exposed to great harm should Mr MURAD re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr MURAD. The Australian community should not tolerate any further risk of harm.

51.    I found the above consideration outweighed the countervailing considerations in Mr MURAD’s case, including the best interests of his two children, his statelessness, the prospect of indefinite detention if his visa was cancelled and the impact on family members. I have also considered the length of time Mr MURAD has made a positive contribution to the Australian community and or the consequences of my decision for minor children and other family members.

52.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of risk of re-offending by Mr MURAD, than I otherwise would, because he has lived in Australia for most of his life.

53.    I found the above consideration outweighed the countervailing considerations in Mr MURAD’s case, including the impact on family members. I have also considered the length of time Mr MURAD has made a positive contribution to the Australian community and the consequences of my decision for family members.

54.    In reaching my decision I concluded that Mr MURAD represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

55.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr MURAD’s Class AH Subclass 101 Child visa under s501(2) of the Migration Act.

36    It was not argued or suggested other than that the Minster had, as stated, personally made the decision relying on the stated reasons but also relying upon all of the evidence that was before him.

The relief sought and grounds

37    The relief sought in an amended originating application is as follows:

1.    An order in the nature of certiorari setting aside the purported decision of the respondent of 3 March 2016 to cancel the applicant’s Class AH Sub-Class 101 Child Visa (“the applicant’s visa”).

2.    An order in the nature of prohibition or injunction restraining the respondent, the officers of his Department, delegates or agents from giving effect to the purported decision of 3 March 2016.

3.    A declaration that the detention of the applicant is unlawful.

4.    An order in the nature of habeas corpus releasing the applicant from detention by the respondent, his delegate or an officer as defined in the Migration Act 1958.

5.    An order that the respondent pay the applicant’s costs.

38    The grounds relied upon in support of the relief sought are as follows:

1.    The Assistant Minister failed to afford procedural fairness to the applicant in that he did not notify the applicant that he would not treat the best interests of the applicant’s children as a primary consideration in the exercise of his discretion and did not provide him with the opportunity to present a case against such a course.

2.    The Assistant Minister failed to give proper, genuine and realistic consideration to the best interests of the applicant’s children in that the Assistant Minister failed to take into account the following matters:

a.    The nature and duration of the relationship between the child and the applicant;

b.    The extent to which the applicant is likely to play a positive parental role in the future taking into account the length of time until his children turn 18;

c.    Whether there are other persons who already perform a parental role; and

d.    Known views of the child.

3.    The Assistant Minister failed to consider or failed to give proper, genuine and realistic consideration to the offences in respect of which the applicant has a substantial criminal record under s. 501(7) of the Migration Act 1958 in that he did not consider:

a.    The applicant’s pleas of guilty on 24 July and 21 August 2012;

b.    The objective seriousness of the offences;

c.    Genuine remorse; and

d.    The reasons for the decision of the New South Wales State Parole Authority to grant the applicant parole on 28 February 2014.

4.    The Assistant Minister misconstrued ss. 189, 196 and 198 of the Migration Act 1958 in that he found that as a stateless person the applicant would not be removed from Australia.

5.    Sections 189 and/or 196 of the Migration Act 1958 do not permit the detention or continued detention of the applicant where he is stateless and will not be removed from Australia or it is not reasonably practicable to remove him for the foreseeable future.

39    I address each of the above grounds in turn.

Ground 1 – denial of procedural fairness

40    The applicant’s counsel, who appeared pro bono for him, relied upon the seminal decision of the High Court in this area, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, especially at 291-2. Reliance was also placed on a Full Court decision applying Teoh, Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, especially at 142 [32], and two single Judge decisions applying Wan, Nweke v Minister for Immigration and Citizenship [2012] FCA 266; (2012) 126 ALD 501 especially at 507 [15] and [18] and Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897; (2012) 131 ALD 27 especially at 33 [35] and 35 [45].

41    The above authorities were submitted to establish the following, I think undeniable, propositions:

(1)    if a decision-maker is making a migration decision affecting children, there is a legitimate expectation that their interests will be a primary consideration, and will not be treated otherwise without an opportunity to be heard: Teoh;

(2)    a mere statement that primary consideration has been given to the best interests of a child does not mean that this is what has in fact happened, such that the reasons given may require closer and critical analysis: Lesianawai;

(3)    where children may or will be affected, a decision-maker is required to identify what the best interests of any such affected child are and then assess whether that is outweighed by any other consideration, whether individually or in combination: Wan, as also applied in Lesianawai and Nweke; and

(4)    if a decision-maker has not in fact treated the interests of affected children as a primary consideration, and has not given notice of that intended approach with an opportunity to be heard, that is a denial of procedural fairness.

42    The question for determination on this ground was whether there was a departure from the above principles by the Minister in making the impugned decision to cancel the applicant’s visa, amounting to jurisdictional error by reason of denial of procedural fairness.

43    The applicant asserts that the Minister did the opposite of what the Full Court in Wan held was required. It was argued that the predominant consideration identified and relied upon by the Minister was the exposure of the Australian community to the risk of the applicant reoffending. This, it was argued, was stated in the reasons to outweigh the countervailing considerations, including the best interests of the child, concluding at [52] of the Minister’s reasons that “where great harm could be inflicted by the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa”.

44    The applicant argued that the Minister considered that harm to the community constituted not only a primary consideration, but the predominant consideration, against which the other considerations could be weighed. This was said to constitute a failure to consider the interests of the children as a primary consideration, and consequently a failure to notify the applicant that this would not be so regarded in denial of a legitimate expectation that this would occur.

45    Developed further in oral argument, counsel for the applicant noted that the Full Court in Wan had said (at 142 [32]) that “[p]rovided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of [the appellant’s] children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children”. This meant that the decision-maker was required to identify what the best interests of the children were, and only then to assess whether the strength of any other consideration, or considerations taken together, outweighed the consideration of the best interests of the children.

46    The substance of the case advanced for the applicant was that the Minister in this case had in fact treated the consideration of the risk of harm to the community as inherently more significant and had failed to identify the best interests of the children first before measuring them against any other considerations. The core of the applicant’s case is that the primacy of the interests of the children must be unequivocal, not just a mere weighing of competing considerations. It was submitted that notwithstanding formal words of primacy of the children’s interests at [26] of the reasons, at the point of decision in those reasons the Minister had not in fact treated the interests of the children as a primary consideration.

47    In response, counsel for the Minister said that in considering all of the information before him, the Minister had weighed up the competing considerations, including the best interests of the children as a primary consideration, but had concluded that all considerations favouring not cancelling the visa were outweighed by those supporting that course, dominant among them being the possibility of harm to the Australian community flowing from even a low risk of reoffending.

48    Counsel for the Minister submitted that Nweke and Lesianawai should be distinguished because in both of those cases the Minister had only given hypothetical consideration to the children in question being adversely affected, in each case referring to the effect of cancellation as being something that “may” not be in the best interests of the children. That was not the situation here, where the Minister’s reasons expressly stated at [28], reproduced above at [33]:

“Given that [the applicant] continues to have an active role in the care and upbringing of the children, I find that it is in the best interests of [the named children] not to cancel [the applicant’s] visa”.

It was submitted that this was an unequivocal acceptance by the Minister that not cancelling the applicant’s visa was in the best interests of his children.

49    The reasons for the Minister’s decision identify only one consideration as a “primary” consideration, being the best interests of the applicant’s children. Other considerations are listed, but none of them are described as “primary”. The word “primary” is used only once, and relevantly not at the point of the weighing of competing considerations. At that point of the Minister’s reasons ([49] – [56]), there is only a reference to the competing considerations, not their relative importance. What is therefore required is a decision as to whether the Minister’s reasons sufficiently meet the requirement set out in Wan, or not.

50    I have concluded that the reasons do sufficiently meet the process described, and required, by Wan. At [26] – [29] of the reasons, under the heading “Best interests of minor children”, it is expressly stated that it is in the best interests of the children not to cancel the applicant’s visa because of his active role in their care and upbringing, and that cancellation would deprive them of the opportunity to have close and direct personal contact with him. This meets the requirement identified in Wan of first identifying the best interests of the children, prior to carrying out the weighing exercise. Moreover, at [44] of the reasons, reproduced at [34] above, further express recognition was given to the impact of visa cancellation on his children, albeit without any further reference to this being a primary consideration.

51    While it may have been clearer and better to repeat, at the point of weighing up the competing considerations, that the interests of the children were a primary consideration, I am unable to accept that this repetition was indispensable in the context of the Minister’s reasons as a whole. There was nothing hypothetical or equivocal in the assessment of the children’s best interests in the Minister’s reasons at [26] – [29], cf Wan, Nweke and Lesianawai.

52    Importantly, none of the authorities require that the best interests of children be the only primary consideration, or the predominant consideration. That could virtually entail such a consideration having to prevail, no matter what else was to be taken into account. The legitimate expectation which grounds the obligation, as identified in Teoh, was to ensure that a first or primary matter to be taken into account in all migration decisions affecting a child would be the best interests of that child. I consider that this requirement has been met, such that there could not have been a failure to give notice that the best interests of the children would not be a primary consideration.

53    This ground of review must therefore fail.

Ground 2 – failure to give “proper, genuine and realistic consideration” to the best interests of the applicant’s children

54    The argument advanced on behalf of the applicant was that even if the reasons for the Minister’s decision disclosed that the best interests of the applicant’s children had the form or appearance of being treated as a primary consideration, more was required. It was argued that the consideration given to the best interests of the children of the applicant was required to be a practical reality, in the sense of being “proper, genuine and realistic”. That phrase was apparently coined by Gummow J when a Judge of this Court in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 (referring to the full case report published in the electronic copy of the Administrative Law Decisions reports, rather than the extract case report contained in volume 14 of the paper publication).

55    Whenever reliance is placed on the phrase from Khan of “proper, genuine and realistic” consideration, it is important to have regard to the factual and legal context in which it arose, namely an application under the wider regime of judicial review created by ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The statutory ground of review under s 5(1)(e) of the ADJR Act was at the time Khan was decided (and is now) “an improper exercise of the power”. That in turn was then, and is now, defined in s 5(2)(f) of the ADJR Act to include a reference to exercising “a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case”: see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 174-5 [26]. It may be accepted that an obligation to consider the merits of the case at hand is likely be at least an implied jurisdictional requirement in most if not all administrative decision cases. But that does not mean that Gummow J’s phrase, arrived at in the context of the above ADJR Act provisions, the statutory regime then existing when the decision under challenge was made and the facts of that case, can be readily applied in the same way as his Honour did in Khan in a different context.

56    The Khan test may be useful in a general sense in helping to focus attention on the particular decision-making process under challenge, but just as the decision-maker cannot safely rely on formulas alone, nor can those who seek to overturn a decision. The failure to consider something that was required, as a matter of the exercise of jurisdiction, to be taken into account must be identified with some precision if merits review is to be avoided.

57    The applicant relied on several Full Court decisions dealing with the fact that perfunctory or formulaic references to what has been taken into account may not suffice, echoing Khan. In Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513, importantly a s 501 case, it was observed at 527-8 [46] – [47] that mere advertence to a matter required to be taken into account may be insufficient to establish that it has been properly considered; that ritualistic incantations, such as the serious or unacceptable nature of a risk, may not be sufficient to protect a decision; and that the reasons must be considered by reference to the facts in each case in a practical way, but not with “an eye keenly attuned to the perception of error” (relying on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2). Applied to this case, the relevant question is whether it can be said that the reasons disclose that the Minister did not in fact treat the best interests of the applicant’s children as a primary consideration. To my way of thinking, cases like Ayoub and the reasoning of their Honours referred to above provide a more useful way of approaching at least the adequacy of reasons for s 501 cancelation decisions than the Khan formula.

58    It was a principled approach akin to that later suggested in Ayoub that led Jagot J in Nweke and Katzmann J in Lesianawai to conclude that the treatment of the best interests of the applicant’s children as a primary consideration had not occurred as required. In both of those cases, the language used in the Minister’s reasons revealed the failure, because the best interests of the children were described in a way that was hypothetical, so as not to have in truth been considered as a primary consideration at all. The stated reasons revealed a failure to take into account a consideration that could only be departed from with notice and an opportunity to be heard, which was not provided. That in turn led to jurisdictional error by way of denial of procedural fairness.

59    The applicant relied on four particulars listed above at [38], and repeated here for convenience, by which it was asserted the Minister failed to take into account and thereby failed to take into consideration the primary consideration of the best interests of the applicant’s children:

(1)    the nature and duration of the relationship between the child [here children] and the applicant;

(2)    the extent to which the applicant is likely to play a positive parental role in the future taking into account the length of time until his children turn 18;

(3)    whether there are other persons who already perform a parental role; and

(4)    the known views of the child.

60    The above grounds were drawn from clauses 9.2(4)(a), (b), (e) and (f) of Direction no. 65 issued pursuant to s 499 of the Migration Act, which was before the Minister at the relevant time. That Direction was binding on other decision-makers, but not binding on the Minister. Direction no. 65 was provided to the applicant under cover of a letter from the Department dated 16 March 2015, which made it clear that while it was not binding on the Minister when making the decision in person, it provided a broad indication of the issues that may be taken into account.

61    The problem with each of the above particulars to this ground is that it has at least the appearance of elevating certain matters that the Minister might have decided to take into account in deciding what was in the best interests of the applicant’s children into mandatory relevant considerations that he was bound to take into account. Unlike decision-makers who were delegates, the Minister was not, as a matter of the exercise of jurisdiction, required to take into account or be bound by the terms of Direction no. 65. I cannot see any warrant for finding such a requirement existed, nor even for the matters listed in the particulars to this ground, necessarily to be considered at all. Unlike other decision-makers bound by Direction no. 65, there was no requirement at all, let alone a jurisdictional requirement, that the Minister reach the conclusion that he did that cancelling the applicant’s visa was not in the best interests of the children by any particular pathway or process of reasoning, or by reference to any particular intermediate considerations such as those particularised.

62    Each of the numerous passages in the material before the Minister identified at the hearing by counsel for the applicant could be seen to be pertinent to the particulars he relied upon. Each, in different ways, served to reinforce the nature, extent and importance to the applicant and his children of their continued contact, and in particular the importance of the applicant retaining his visa. However, that conclusion, as opposed to the particular facts by which that conclusion might be reached, did not appear to be doubted by the Minister. This was expressly acknowledged by way of the conclusion at [29] of the reasons that the “children would be emotionally affected by a visa cancellation and that this would deprive the children from having the opportunity to have close and direct personal contact with him”.

63    In my view, with the greatest respect to counsel for the applicant, it has not been established that there was some fact or consideration penultimate to the consideration of the best interests of the applicant’s children that was not expressly referred to that the Minister was bound to address in his reasons. For that reason, omission of any reference in the reasons to such considerations could not vitiate the decision.

64    This ground of review must therefore fail.

Ground 3 – failure to consider or give “proper, genuine and realistic consideration” to the offences

65    This ground, as developed at the hearing, was an issue of relevant, in the sense of mandatory, considerations. The particulars to this ground reproduced above at [38] are again repeated for convenience and ease of reading, namely that the Minister failed to consider or failed to give “proper, genuine and realistic consideration” to the offences in respect of which the applicant has a substantial criminal record under s 501(7) of the Migration Act 1958, in that he did not consider:

(1)    the applicant’s pleas of guilty on 24 July and 21 August 2012;

(2)    the objective seriousness of the offences;

(3)    genuine remorse; and

(4)    the reasons for the decision of the New South Wales State Parole Authority to grant the applicant parole on 28 February 2014.

66    As with the second ground, this third complaint is factually grounded in the absence of reference to the above listed matters in the Minister’s reasons. However, this time reliance is placed on the reasoning of the plurality on this point in the judgment of Rangiah J in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 at 378 [47] and following, with whom North J agreed at 368 [1], and Jessup J disagreed at 370 [7], albeit that it was agreed by all three Judges that the appeal by the visa applicant should be dismissed.

67    Rangiah J in Moana at 378 [48] agreed with prior single Judge authority, referred to in greater detail below, to the effect that risk to the community is a matter that a decision-maker, including the Minister when making the decision personally, is bound to take into account in the exercise of discretion to cancel a visa on character grounds under s 501(2). That was said to be so in the prior single Judge authority because such an assessment of risk was a necessary part of exercising the power for the purpose for which it had been conferred, namely protection of the Australian community. The reasoning supporting that conclusion by Rangiah J appears to be, at least, that:

(1)    under s 501(1), the Minister (in person or by delegate), may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the “character test”, as defined in s 501(6);

(2)    under s 501(2), the Minister (in person or by delegate) may cancel a visa that has been granted if:

(a)    the Minister (or delegate) reasonably suspects that the visa holder does not pass the character test; and

(b)    the visa holder does not satisfy the Minister (or delegate) that he or she does pass the character test;

(3)    a person with a “substantial criminal record” as defined in s 501(7) does not pass the character test by reason of s 501(6)(a);

(4)    it is implicit that the presence of someone in Australia with a substantial criminal record poses, or may pose, some risk of harm to the Australian community or a segment of it – the risk being that the person will reoffend;

(5)    each of the criteria for determining whether a person does or does not pass the character test involves protection of the community in the sense of protection against some kind of harm, disadvantage, or unacceptable or undesirable consequence arising from allowing a person to enter or remain in Australia;

(6)    the various other paragraphs of s 501(6) after (a) address various risks associated with reoffending; and

(7)    therefore such risks are required to be taken into account as a relevant mandatory consideration to be derived from the text of s 501 in accordance with Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 and evaluated by the decision-maker in deciding whether or not to grant or cancel a visa under ss 501(1) or (2) respectively.

68    In reaching that conclusion, Rangiah J followed the decision in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, albeit by somewhat different reasoning as partially summarised above. In Tanielu at 443-4 [87]-[88], 449 [118] and following, the Court rejected a submission made by the Minister in that case that the discretion in s 501 was unfettered in express terms and broad in scope, such that no mandatory considerations should be implied as conditions on the valid exercise of the power bestowed. The Court relied upon Peko-Wallsend and subsequent authority on the topic to infer a mandatory consideration of risk to the Australian community.

69    Many years earlier, the majority in the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 held at 523 [74] that to construe s 501(2) to require consideration of factors such as the level of involvement of a visa holder in the offences in question would cut across the broad scope of the Minister’s discretion, which was able to be exercised by reference, for example, to the national interest, divorced from consideration of specific factors personal to the visa holder. However, Huynh was not read by the Court in Tanielu as excluding taking into account risk to the community as a mandatory relevant consideration.

70    Jessup J in dissent on this point in Moana at 370 [7] said that, contrary to the view expressed in Tanielu, Peko-Wallsend did not require consideration of whether implied restrictions applied to a discretion that was expressed in terms that were ostensibly unfettered. Rather, his Honour considered Peko-Wallsend was authority for the more limited proposition that if a discretion was unconfined in terms, a Court cannot find that a particular matter must be taken into account unless an implication to that effect can be found in the subject matter, scope and purpose of the statute in question. His Honour therefore considered, at 370 [9], that the power to cancel a visa under s 501(2) might be exercised taking into account no consideration other than that set out in the provision, namely that the Minister reasonably suspected that the visa holder did not pass the character test and did not satisfy the Minister that he or she did pass the character test. His Honour concluded at 370-1 [10] that there was nothing in s 501(2) or elsewhere in the Migration Act that has the effect that the cancellation power may not be validly exercised unless the Minister takes into account the risk posed to the Australian community.

71    In light of the Full Court decisions in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 and NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44, both of which concluded that refusal of the grant of a visa under s 501(1) could not be made without regard to the legal consequences of the decision in each of those cases, it is perhaps too sweeping to suggest that in all cases consideration of a refusal or cancellation on character grounds need have regard only to the terms of s 501(1) or (2) respectively. There may be particular legal consequences of a decision that must be considered in the particular circumstances of a given case.

72    Similar reasoning to that in NBMZ and NBNB was applied by the Full Court in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 330 ALR 617. In Cotterill it was found that there was a requirement in that case to take into account a practical, rather than legal, consequence of indefinite detention if a visa was cancelled (noting that the ALR headnote appears, incorrectly, to broaden the basis for the plurality’s decision beyond this single ground).

73    In my view, none of NBMZ, NBNB or Cotterill are authority for the proposition that the legal or practical consequences of a cancellation decision must always be considered, but rather that this may be required in a given case, depending on the circumstances, although I think it likely that the prospect of indefinite detention would always be of such importance that it is hard to see how consideration of such an outcome could avoid being required to be considered.

74    Earlier this year, the Full Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, revisited the breadth of the Minister’s discretion to cancel a visa on character grounds under s 501(2) of the Migration Act. Griffiths J, with whom Allsop CJ and Wigney J agreed, noted at 22 [64] that the discretion is substantially unfettered in that there is no express list of factors which the Minister is required to take into account in deciding whether or not to exercise the power. However, that did not mean the power was without limitation. At 22 [65] to 25 [71], Griffiths J identified a number of categories of limitation, which may be listed in a summary way as follows:

(1)    the express preconditions in s 501(2) pertaining to the character test;

(2)    an implied obligation not to act arbitrarily, capriciously or legally unreasonably [the last point repeated below – legal unreasonableness being the focus of the decision];

(3)    considerations implied by the operation of the principles in Peko-Wallsend, such as the legal consequences of the cancellation decision [of the kind noted above];

(4)    a presumption that Parliament intended the Minister’s discretion would be exercised reasonably in the limited legal sense discussed earlier in the decision;

(5)    the Migration Act provides additional indicators which assist in evaluating a cancellation decision with a view to determining whether the decision is beyond the authority conferred upon the Minister and is unreasonable in the legal sense, with the following, non-exhaustive, indicators being identified as indicative of the broad nature of the discretion:

(a)    the lack of any explicit list of considerations;

(b)    the “national interest” object in s 4 of the Migration Act, being itself a broad concept informing many of the provisions in that Act involving a wide range of potentially relevant matters, some of which relate to the interests of the visa-holder and his or her family and others relate to broader community and policy issues;

(c)    the fact that the discretion is conferred upon the Minister, who holds political office and is accountable to Parliament, coupled with the power under s 499 to make directions which are binding on delegates and then subject to merits review (whereas when the power is exercised personally by the Minister, it is without binding considerations and without merits review);

(d)    the obligation on the Minister under s 501G(1)(e) to provide written reasons for a decision under s 501(2), enabling it to be ascertained, including by a judicial review court, whether there is an “evident and intelligible” justification for the decision (while remaining mindful of the constrained nature of such review); and

(6)    the power to refuse to grant or to cancel a visa is a substantive power, to be contrasted with powers of a procedural nature which are more amenable to review (because they more readily give rise to questions of procedural fairness).

75    The judgment of Griffiths J in Stretton, agreed with by Allsop CJ and Wigney J, suggests that, while Peko-Wallsend still has work to do in supporting limited inferred mandatory relevant considerations, the language and context of s 501(2) (and for that matter, s 501(1)), provides for higher level and overarching mandatory relevant considerations of the type identified in NBMZ, NBNB and Cotterill, such as any obvious or very likely significant legal or practical consequences for a visa holder in cancelling his or her visa. Even the mandatory relevant consideration of treating the best interests of an affected child as a mandatory relevant consideration identified by the High Court in Teoh was drawn from the fact of Australia entering into a treaty, giving rise to a legitimate expectation.

76    All of those factors suggest that an inference cannot readily be drawn of a requirement to take into account in all cases specific considerations such as a risk to the community, especially in a case such as this in which the substantial criminal record basis for failing the character test was entirely met by the length of the sentences imposed and, per ss 501(6)(a) and 501(7)(c), required on their face no risk assessment at all (cf eg, s 501(6)(d)).

77    In Ayoub at 524 [36] to 525 [41], the Full Court expressed doubt about the correctness of the decision in Moana on this issue, although it was elsewhere accepted that their Honours were correct in holding that the evaluation of the risk factor did not have to be carried out in a particular way (at 527 [44]). Their Honours in Ayoub at 525 [37] noted that it may be difficult to conclude that an exercise of the power to cancel a visa by reason of a “substantial criminal record” within the meaning of s 501(6)(a) is subject to an implicit constraint expressly provided for in s 501(6)(d), being a provision not relied upon by the Minister in that case, or in this case.

78    The foregoing casts doubt on the correctness of the reasoning of the majority in Moana on this point. Without the majority decision to the contrary on this point in Moana, I would agree with Jessup J in that case that there is insufficient basis for inferring, by Peko-Wallsend reasoning, an obligation to take into account risk to the community in making, as relevant here, a cancellation decision on character grounds. One needs to go no further than the circumstances of this case to see why that is so. In this case, the applicant failed the character test by reference to no more than the duration of each of his four sentences, each of which was equal to or above the threshold of 12 months imprisonment in s 501(7). The threshold test in s 501(6)(a) was therefore met without any regard to the risk factors expressly referred to in s 501(6)(d), or even any risk factors that might be inferred in relation to any of the matters listed in s 501(6)(aa) and following, noting that each paragraph is separated by a disjunctive “or” so as to operate independently and not collectively.

79    In the circumstances of this case, without the binding authority of Moana, I would conclude that the Minister was entitled to rely on no more than the fact that the applicant had, undeniably, failed the character test, and indeed had done so by way of each of four separate offences. Consideration of other matters, including risk to the Australian community, was certainly permitted, as in fact took place, but it was not required in the circumstances of this case. I therefore cannot see why the power to cancel (or for that matter, refuse to grant) a visa in all cases requires consideration of risk to the Australian community, especially when the visa holder has a clearly established “substantial criminal record” for the purposes of s 501(6)(a) of the Migration Act.

80    If the Minister had not in fact had regard to risk to the community, I would have been bound to follow the majority decision in Moana and conclude that this was a jurisdictional error. However in this case there is no question but that the Minister did have regard to the risk to the community of the applicant reoffending. The Minister’s reasons at [24] – [25] identify a low risk of reoffending, but that this was still a risk of significant harm, including serious physical injuries to a member of the Australian public, if offending of a similar kind was to happen again. When the competing considerations were weighed and assessed, [50] of the Minister’s reasons recorded that as the possibility of further offending could not be ruled out, “[t]he Australian community should not tolerate any further risk of harm” and concluded at [52] that where “great harm could be inflicted on the Australian community even strong countervailing considerations [were] insufficient for me not to cancel the visa”.

81    Even if, as it seems I am probably bound to conclude, the Minister was required to have regard to risk of harm to the community, following the reasoning in relation to the second ground, I am unable to accept that the pathway to reaching a conclusion on that inferred mandatory consideration is similarly prescribed. That would entail taking the inference-drawing process identified in Peko-Wallsend to an entirely new and unprecedented level of detail. It is one thing to say that a particular consideration must be taken into account; but it is quite another for the Court to presume to dictate what particular facts and circumstances must be had regard to in meeting that obligation.

82    I cannot see any basis for preferring the particular factors asserted by the applicant over other factors that might be relied upon. In particular, I am unable to see why the Minister could not have regard to the (admittedly low) risk of reoffending and the possibly dire consequence if such reoffending was of the same kind as the attempted home invasion, which could result in serious injury to a member of the Australian community. While this may be a hard and even merciless way to look at the equation of risk and consequences, it cannot be said that this was a reasoning process forbidden to be adopted. It was a reasoning process and conclusion that was open to the Minister.

Particulars

83    In case I am wrong about the absence of the need to consider the offences further than was done in the reasons, I will separately refer to the particulars relied upon.

84    The first of the particulars refers to the guilty pleas, which were not referred to in the Minister’s reasons. In my view, the significance of not referring to the guilty pleas in the reasons should not be overstated, especially in the circumstances of this case. First, the fact of the guilty pleas was before the Minister in the remarks on sentence. Secondly, in aid of the conclusion that it was not of such importance to refer to them, each of those guilty pleas was only entered at the time of trial. They attracted only a utilitarian discount for saving the time and expense of the trials proceeding. Moreover, any plea that is entered says nothing about the character of the offences. Rather, they are only relevant in any mandatory risk assessment process if they indicate an elevated, or reduced, risk of reoffending.

85    Given that it was accepted in the Minister’s reasons that the risk of reoffending was low, it is difficult to see what more a reference to the guilty pleas could have contributed to any different conclusion on risk. Even if a risk assessment was required to be conducted, I am unable to accept that, on the facts of this case, reference to the guilty pleas was required to assess that risk.

86    The second of the particulars refers to the objective seriousness of the offences, and takes issue with the reference in the reasons to the offences committed by the applicant being “very serious”. Having regard to the maximum penalties, each of the offences committed was objectively serious. In relation to the most serious offence relating to the attempted home invasion, the maximum penalty of 20 years’ imprisonment made it inherently very serious indeed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 272 [30]-[31]; see also Stretton at 31 [100] per Wigney J.

87    While the sentencing judge was satisfied that the instance of offending was in the low range for an attempted home invasion, his Honour was not persuaded that it was at the bottom of that range. A low range instance of offending in relation to a very serious offence remains serious. It is a question of degree, as to which the Minister was entitled to form his own view. Each of the offences was inherently serious, so that the particular instance of offending had to be assessed by the sentencing judge as to where it fell in the range of possible seriousness. I am unable to accept that there was any error, let alone jurisdictional error, in the characterisation of the offences in the Minister’s reasons, or in the part they played in the risk assessment that was carried out.

88    The third particular, concerning a lack of any reference to remorse has similar problems to the guilty plea particular. This finding by the sentencing judge appears to have been reached without any express reliance on the fact of the guilty pleas, and without any specific identification of the reasons for reaching that conclusion. In those circumstances it is difficult to see how that would have affected the low risk assessment that was made, let alone made it a jurisdictional error not to refer to it.

89    The fourth particular concerning taking into account the reasons for granting parole, had they been obtained by the Department and put before the Minister, would perhaps have had some greater role to play in risk assessment. Had there been any significant risk of reoffending it is reasonable to infer that parole would not have been granted at the earliest eligible date. However, as with the other particulars, it is difficult to see how that would have made the assessment of a low risk of reoffending different. It has not been suggested that the parole reasons, or indeed any of the other particulars sought to be relied upon, could have supported a conclusion of no risk at all.

90    It follows that this ground of review must also fail.

Ground 4 – misinterpretation of ss 189, 196 and 198 of the Migration Act

91    This ground is based on the Minister’s reasons at [37] at which it was said:

I have taken into account that while Mr MURAD will not be removed from Australia if his visa is cancelled, because he is stateless, he would face the prospect of indefinite immigration detention due to the operation of s189 and s196 of the Migration Act.

92    The applicant contends that this paragraph reveals a misinterpretation of ss 189, 196 and 198 of the Migration Act, because, notwithstanding that he is stateless, it could not be said that he would not ever be removed because the obligation to remove under s 198(5) continues even if the circumstances for removal have not yet arisen (and may never arise). It was said that taking this erroneous position into account was a jurisdictional error.

93    The Minister submits that [37] of the reasons did not involve a question of statutory construction, but rather a statement of factual practicalities. That is because, at the time of the Minister’s decision, there was (and still is) no prospect of the applicant being able to be returned to any other country because he is stateless. That was why there was a reference to the “prospect” of indefinite immigration detention, a fact that the Minister was bound to take into account, per Cotterill referred to above. Counsel for the Minister also submitted that the impugned paragraph should not be read too closely in order to find legal error, which I accept and find is particularly applicable to such a factually-based comment or conclusion.

94    I agree with the Minister’s submissions on this point. I do not consider that [37] was doing more than recording the practical reality of the applicant’s present predicament. It follows that no misinterpretation was involved, and no jurisdictional error has taken place. This ground of review must therefore fail.

Ground 5 – ss 189 and 196, Migration Act do not permit continued detention

95    The final ground is raised formally to provide a possible vehicle for revisiting the High Court’s decision in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562. The applicant contends that ss 189 and 196 of the Migration Act should be read so as not to permit indefinite detention as a matter of statutory construction and in the absence of express statutory authority to detain indefinitely. The applicant asserts that the dissenting conclusions of Gleeson CJ, and Gummow and Kirby JJ in Al-Kateb should be preferred, but necessarily accepts that I am bound by the majority decision to conclude that this ground must fail.

Conclusion

96    As all five grounds have failed, the amended originating application must be dismissed. I can see no reason why costs should not follow the event.

Associate:

Dated:    4 August 2016