FEDERAL COURT OF AUSTRALIA

Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued directed to the Assistant Minister for Immigration and Border Protection, quashing the decision of the Assistant Minister for Immigration and Border Protection made on 23 May 2017 to cancel the Applicant’s Class BC (Subclass 100) Partner (Migrant) visa.

2.    The Respondent be restrained, and an injunction is hereby issued restraining him, including whether by his officers, employees, agents, delegates or howsoever otherwise, from acting on the basis that the Applicant’s Class BC (Subclass 100) Partner (Migrant) visa was validly cancelled by the decision made by the Assistant Minister for Immigration and Border Protection on 23 May 2017.

3.    The Applicant be released forthwith from immigration detention.

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

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns an application made under s 476A of the Migration Act 1958 (Cth) (the Act) for the issue of a writ of certiorari directed to the Assistant Minister for Immigration and Border Protection.

2    The Applicant seeks to have quashed the decision of the Assistant Minister made on 23 May 2017 under s 501BA of the Act to cancel his Class BC (Subclass 100) Partner (Migrant) visa. In addition, the Applicant seeks other relief, being a final injunction restraining the Minister and those for whom he is responsible from acting on the basis that the cancellation of the visa on 23 May 2017 was valid and an order that he be released forthwith from immigration detention.

3    The Applicant is a national of Nigeria and 32 years old. He has lived in Australia since 1 May 2008 having entered pursuant to a Class UF Subclass 309 Partner (Provisional) visa. The Applicant had lived in Australia for short periods in 2006 and 2007 but they are not material for present purposes.

4    On 5 January 2009, the Applicant was granted a Class BC Subclass 100 Partner (Migrant) visa. This was the visa which was cancelled by the Assistant Minister on 23 May 2017. Notice of the cancellation decision was first given to the Applicant on 20 July 2017.

5    There had been an earlier cancellation of the Applicant’s visa by a delegate of the Minister on 17 July 2015 (the Original Decision). That decision was made under s 501(3A) of the Act. However, on 25 August 2016, another delegate, acting under s 501CA(4) of the Act, revoked the Original Decision.

6    Section 501BA(2) which was exercised by the Assistant Minister on 23 May 2017 empowers the Minister to set aside a revocation of cancellation decision made under s 501CA if satisfied of two conditions: first, that the visa holder does not pass the character test because of the operation of s 501(6)(a) on the basis of (relevantly) s 501(7)(c); and, secondly, that the cancellation is in the national interest. Section 501(6)(a) provides that a person does not pass the “character test” if the person has a substantial criminal record as defined by subs (7). Section 501(7)(c) provides that a person has a “substantial criminal record” if “the person has been sentenced to a term of imprisonment for 12 months or more”.

7    Mr Ibrahim has a criminal record of the kind to which s 501(7)(c) refers because, on 17 December 2014, he was sentenced to imprisonment for a period of two years and 10 months, with a non-parole period of 16 months, by the District Court of South Australia for an offence of aggravated robbery. In addition, Mr Ibrahim has convictions for other offences committed between 2011 and 2015.

8    Section 501BA provides as follows:

501BA    Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

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

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

Note:    For notification of decisions under subsection (2), see section 501G.

9    On one view, s 501BA contemplates the Minister making two decisions: first to cancel the revocation decision, and then having done that, making a new cancellation decision. However, the submissions on both sides in the present case proceeded on the basis that s 501BA contemplates a single composite decision comprising revocation and cancellation, and I will do likewise.

10    The Assistant Minister’s decision as to cancellation was expressed as follows:

I am satisfied that Mr IBRAHIM does not pass the character test because of the operation of paragraph 501(6)(a), on the basis of paragraph 501(7)(c). I am also satisfied cancellation of Mr IBRAHIM’s visa is in the national interest. I have decided to exercise my discretion under s. 501BA of the Act to cancel Mr IBRAHIM’s visa. I hereby cancel Mr IBRAHIM’s Class BC Subclass 100 Partner (Migrant) visa.

The Assistant Minister then referred to an attached statement of reasons.

The non-refoulement submission

11    The submissions advanced on behalf of Mr Ibrahim by Ms Rutherford of the Legal Services Commission of South Australia on 4 September 2015 seeking the revocation of the Original Decision included the following:

International non-refoulement obligations

This matter warrants an International Treaties Obligation Assessment being conducted because Mr Ibrahim is a Christian of the Hausa tribe. His family originates from the north of Nigeria – he was born in Kaduna State and his mother is from the Adamawa State. Kaduna State has experienced communal violence between Christians and Muslims, and the fundamentalist group Boko Haram continues to gain traction and target Christians. The Department should assess whether there is a risk that he may be harmed if he were to be returned there.

(Citation omitted)

12    In addition, a support letter dated 11 September 2015 from Mr Tijani of the Deeper Christian Life Ministry in Adelaide included the statement:

[Mr Ibrahim] hails from the northern part of Nigeria where professing Christians are subject to brutal attacks and persecution for their faith in Christ.

13    Plainly enough, both Ms Rutherford and Mr Tijani were referring to, or seeking to invoke, the obligations which Australia has to those with a well-founded fear of persecution by reason of their religion (s 5J(1)(a)) or who will be subject to a real risk of serious harm if returned to their home country (s 36(2)(aa)).

14    Counsel for Mr Ibrahim submitted, and counsel for the Minister did not dispute, that an International Treaties Obligations Assessment (ITOA) to which Ms Rutherford had referred is a means by which the Department of Immigration and Border Protection (the Department) considers Australia’s international non-refoulement obligations in a variety of circumstances relevant to decision-making under the Migration Act. I note that the nature and uses of ITOAs were the subject of some consideration by the Full Court in SZSSJ v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 125; (2015) 234 FCR 1 at [14] and [77]-[78].

15    The briefing from the Department to the Assistant Minister dated 19 May 2017 in relation to the cancellation of the visa included the following:

International non-refoulement obligations

[38]    Ms Rutherford has submitted that Mr IBRAHIM’s case warrants an International Treaties Obligation Assessment. Mr IBRAHIM is a Christian of the Hausa tribe. Ms Rutherford submits that Mr IBRAHIM’s family is from northern Nigeria and that Christians in northern Nigeria have been targeted by the fundamentalist group Boko Haram. Ms Rutherford refers to communal violence in northern Nigeria as a risk he may be harmed if returned to Nigeria …

[39]    Mr IBRAHIM has made claims that may give rise to international non-refoulement obligations, however Mr IBRAHIM is able to make a valid application for another visa. In particular Mr IBRAHIM is not prevented by s. 48A of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr IBRAHIM for the purposes of this decision.

The Assistant Minister’s reasons

16    The Assistant Minister’s statement of reasons which had been prepared by the Department for his consideration, followed closely the form of the Departmental submission:

International non-refoulement obligations

[78]    Mr IBRAHIM is a citizen of Nigeria. The available information indicates he has predominantly resided in Lagos and his family also resides there.

[79]    I considered Ms Rutherford’s submission that Mr IBRAHIM’s case warrants an International Treaties Obligation Assessment. Mr IBRAHIM is a Christian of the Hausa tribe. Ms Rutherford submits that Mr IBRAHIM’s family is from northern Nigeria and that Christians in northern Nigeria have been targeted by the fundamentalist group Boko Haram. Ms Rutherford cites the existence of communal violence between ethnic groups as well as Christians and Muslims in northern Nigeria which may place Mr IBRAHIM at risk of harm if he is removed to Nigeria.

[80]    I note Mr Tijani’s letter that Mr IBRAHIM is a Christian from northern Nigeria and that Christians are subject to “brutal attacks and persecution for their faith in Christ”.

[81]    Mr IBRAHIM has made claims that may give rise to international non-refoulement obligations, however Mr IBRAHIM is able to make a valid application for another visa. In particular I note that Mr IBRAHIM is not prevented by s.48A of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr IBRAHIM for the purposes of this decision.

Jurisdictional error: misunderstanding the law

17    Counsel for the Applicant submitted that these passages, and in particular [81], indicate that:

(a)    the Assistant Minister contemplated that Mr Ibrahim’s claims could give rise to non-refoulement obligations;

(b)    the Assistant Minister considered that it was not necessary to determine whether Australia did owe non-refoulement obligations to Mr Ibrahim for the purposes of the cancellation decision under s 501BA(2) of the Migration Act;

(c)    that was so because the existence or otherwise of these obligations would be considered in the event that Mr Ibrahim applied (as it was open to him to do) for a protection visa.

18    Counsel submitted that this reflected a mistaken understanding by the Assistant Minister of the legal effect of the Act and to a consequent failure on his part to carry out the task required by s 501BA(2). The mistake was that the Assistant Minister had understood that the Applicant’s non-refoulement claims would necessarily, as a matter of law, be considered in the event that the Applicant applied for a protection visa. This was wrong because the multiple mandatory criteria for the grant of a protection visa mean that such a visa may be refused without the decision-maker ever considering the non-refoulement claims. It was a jurisdictional error for the Assistant Minister to have formed the state of mind required by s 501BA(2) on the basis of this incorrect understanding of the operation of the Act.

19    Counsel elaborated this submission of the Applicant as follows:

(a)    in the event that an application for a protection visa was made, the Minister would be subject to the obligations imposed by s 65(1) of the Act, which provides (relevantly):

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

(b)    there is nothing in s 65(1), or in the Migration Act more generally, which governs the order in which the Minister is to consider the matters listed in s 65(1);

(c)    accordingly, an application for a protection visa could be lawfully refused on the ground that the Applicant did not satisfy the health criteria specified by subs (1)(a)(i), because the grant of a visa was precluded by one or other of the matters specified in subs (1)(a)(iii), or because he did not satisfy one of the “other criteria” to which subs (1)(a)(ii) refer. Those criteria include the public interest Criterion 4001 (the character test) which applies by reason of cl 866.225 of Sch 2 of the Migration Regulations 1994 (Cth). This meant that a decision-maker may never have to consider the criteria specified in s 36(2) for the issue of a protection visa (which would involve consideration of Australia’s non-refoulement obligations), and the Assistant Minister was mistaken to have thought otherwise.

20    In support of the submission concerning these aspects of the Act, the Applicant relied upon the decision of the majority (Bromberg and Mortimer JJ) in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at [36]-[52] who had reasoned in the same way. I will return shortly to BCR16.

21    In support of the submission that the Assistant Minister had been bound to form the state of satisfaction required by s 501BA(2) on a correct understanding of the parts of the Act which were relevant, and that it was a constructive failure to exercise jurisdiction to do otherwise, the Applicant referred to Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 in which, in relation to the cancellation of a visa pursuant to s 116(1)(b) of the Migration Act, the majority (Gageler and Keane JJ) said:

[33]    The “satisfaction” required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law. Equally, it is a state of mind which must be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power.

(Emphasis added)

22    Counsel also referred to the authorities which Gageler and Keane JJ listed in the footnote to this paragraph, namely: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, (1999) 197 CLR 611 at [130]-[137]; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; and Buck v Bavone (1976) 135 CLR 110 at 118-9.

23    In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, Robertson J referred to these authorities when holding at [54] that the satisfaction referred to in s 501CA(4) is a state of mind which must be formed “on a correct understanding of the law”. Robertson J held that such an understanding is an implied condition of the valid exercise of the power with the effect that an incorrect understanding constituted jurisdictional error.

24    The recent decision in Graham v Minister for Immigration and Border Protection [2017] HCA 33 also supports the position for which the Applicant contends. In that case, the majority (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) said:

[57]    The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law.

(Emphasis added)

25    Later in Graham, the majority held that the Minister had committed jurisdictional error when he had made a decision, taking into account particular information, on the basis of a misunderstanding of the legal operation of other provisions in the Act:

[68]    The Minister’s reasons for his decisions to cancel the visas of the plaintiff and the applicant refer repeatedly to the Minister having taken into account information described variously as “protected information under section 503A” and “information which is protected from disclosure under section 503A”. The inference to be drawn is that the Minister made the decisions on the understanding that s 503A was valid in its entirety and operated to prevent the Minister from in any circumstances being required to divulge or communicate the information including to a court engaged in the judicial review of the decisions. That understanding was in error. The error was not as to the question to be asked by the Minister in making the decision but as to an important attribute of the decision to be made: whether or not the decision would be shielded from review by a court in so far as it was based on the relevant information. As in Re Patterson; Ex parte Taylor, where the error of the Minister was a failure to appreciate that there would be no opportunity to seek revocation of the decision, “[t]he result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3)”.

(Citations omitted)

26    The decision in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 to which the majority referred concerned circumstances which are analogous to those of this case. The subject of Re Patterson was a decision made by a Parliamentary Secretary under s 501(3) of the Migration Act to cancel a visa on the basis of a reasonable suspicion that the visa holder did not pass the character test and satisfaction that the cancellation was in the national interest. The decision was held to be affected by jurisdictional error because the Parliamentary Secretary had believed, erroneously, that the plaintiff would have an effective opportunity to make representations concerning revocation of the decision. That is to say, the secretary’s decision had been based on a failure to appreciate the true operation of the Act in relation to a matter bearing on the decision. See also Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [87].

27    The principle that a Minister must form a state of satisfaction required by the Act on a correct understanding of the law was applied by Bromberg and Mortimer JJ in BCR16. That case concerned a decision (by a different Assistant Minister) made under s 501CA(4) of the Act which empowers the Minister to revoke a cancellation decision made under s 501(3A) of the Act. Section 501(3A) requires the Minister to cancel a visa granted to a person serving a sentence of imprisonment if the person does not pass the character test by reason of having been sentenced to imprisonment for 12 months or more and thereby has a “substantial criminal record”. It provides:

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

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

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

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

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

28    Sections 501CA(3) and (4) which operate in relation to a decision under s 501(3A) provide:

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

29    Despite the submissions by BCR16, including a submission that to force him to return to Lebanon would be a breach of Australia’s non-refoulement obligations, the Assistant Minister in that case had declined to exercise the power under s 501CA(4) to revoke the earlier visa cancellation decision. The Assistant Minister noted the non-refoulement submission but did not reach a conclusion on the issue, giving reasons which, with one qualification, were in the same terms as used in [81] of the Assistant Minister’s reasons in the present case, set out earlier in this judgment. The qualification is that the Assistant Minister referred to s 501E as not precluding BCR16 from making an application for a protection visa, whereas in the reasons in the present case, the Assistant Minister referred to s 48A. It was not suggested that this was a material difference.

30    The reasons of Bromberg and Mortimer JJ in BCR16 indicate that they regarded the connecting word “thus” in the Assistant Minister’s Statement of Reasons as indicating an assumption on the Assistant Minister’s part that it was not necessary to consider Australia’s non-refoulement obligations because those obligations would be examined in the event that BCR16 lodged an application for a protection visa, at [60]. Their Honours found that that assumption was based on a mistaken understanding of the Act because it was not necessarily the case that Australia’s non-refoulement obligations would “be considered in the event that the appellant made an application for a protection visa”; and, secondly, because the Minister had “considered that the subject of [BCR16]’s representations could, in their entirety, be met by the availability to [BCR16], on application, of a protection visa”, when this was not the case, at [66]. Given the nature of Ms Rutherford’s submission, it was not suggested that this second consideration arises in this case. Bromberg and Mortimer JJ also considered that the Assistant Minister had overlooked that consideration of non-refoulement in the context of s 65(1) is different from the consideration of non-refoulement in the context of s 501CA(4), at [48]-[51].

31    Their Honours then concluded that the Assistant Minister’s failure to consider the non-refoulement submission because of her mistaken understanding of the way in which the Migration Act may be applied constituted a failure to carry out the task required under s 501CA(4) on a correct understanding of the law and, thereby, jurisdictional error, at [62]-[63].

32    BCR16 was followed by Kenny J in ALN17 v Minister for Immigration and Border Protection [2017] FCA 726 (which also concerned a decision under s 501CA(4)) and by Jagot J in Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 (which concerned a cancellation under s 501(2) of the Act).

33    Counsel for both parties noted that the Minister has filed in the High Court an application for special leave to appeal against the decision BCR16. However, neither party sought the adjournment of the hearing of the Applicant’s application pending the determination of that application or of any subsequent appeal.

34    Counsel for the Minister made the formal submission that the decision of the majority in BCR16 is wrong and should not be followed. He recognised, however, that unless BCR16 can be distinguished, it is binding presently and, accordingly, did not seek to develop the submission that it had been wrongly decided.

35    Counsel for the Minister submitted that BCR16 is distinguishable. He referred first to differences between the powers reposed in the Minister by s 501BA(2), which was exercised in the present case and s 501CA(4), which was considered in BCR16.

36    The terms of ss 501BA and 501CA(4) have been set out earlier in these reasons. Counsel for the Minister submitted that there are the following material differences between the two powers:

(a)    section 501CA contains provisions concerning natural justice (subs (3)) whereas s 501BA(3) expressly excludes the application of the rules of natural justice in relation to a decision under subs (2);

(b)    a decision under s 501BA(2) may be made only by the Minister (subs (4)) whereas s 501CA contains no corresponding limitation;

(c)    the criteria under s 501CA(4) for the revocation of a cancellation decision are different from those applicable to a cancellation decision under s 501BA(2).

37    As to the third of these matters, s 501CA(4) refers (relevantly) to satisfaction that there is “another reason” why the Original Decision should be revoked. Section 501BA(2)(b) refers to satisfaction that cancellation of the visa is in the “national interest”. The range of matters which the Minister may consider under s 501CA(4) may be diverse although, as Robertson J held in Goundar, at [56], the representations made by an applicant as a whole constitute a mandatory relevant consideration.

38    Counsel emphasised that the “national interest” is an expression of considerable breadth: Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256, (2004) 139 FCR 505 at [74]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [156]. He referred to the wide scope of the matters which may be considered in the determination of the national interest, the circumstance that the repository of the power is the holder of a political office and the exclusion of the rules of natural justice. Counsel submitted that, consequently, the Minister is left “largely unrestrained” in determining the factors relevant to the determination of whether the cancellation of a visa is in the national interest – see Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288, (2012) 202 FCR 417 at [43]-[44]; Leiataua v Minister for Immigration and Citizenship [2012] FCA 1427, (2012) 208 FCR 448 at [23].

39    This had the consequence, counsel submitted, that the Minister was not subject to any obligation when exercising s 501BA(2) to have regard to any particular matters advanced by a visa holder as to why a visa should not be cancelled. To hold otherwise would be contrary, he submitted, to the approach adopted by the High Court in relation to the construction of analogous provisions which require reference to matters involving the “public interest”: Osland v Secretary, Department of Justice [2008] HCA 37, (2008) 234 CLR 275 at [57]; Osland v Secretary, Department of Justice (No 2) [2010] HCA 24, (2010) 241 CLR 320 at [13]; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36, (2012) 246 CLR 379 at [42].

40    It followed, so counsel for the Minister submitted, that the Minister is not obliged in the exercise of s 501BA(2) to consider any particular representations made by a visa holder about the existence or otherwise of non-refoulement obligations. That being so, the failure of the Minister, for whatever reason, to consider such representations could not result in a failure by the Minister to discharge the statutory function reposed by s 501BA(2) of the Act, and could not constitute a constructive failure to exercise jurisdiction. This was sufficient, it was said to distinguish the present case from BCR16.

41    In my opinion, this submission should not be accepted. It appears to be based on a mistaken understanding of the reasons of the majority in BCR16 and does not answer the submission made by the Applicant. The Minister’s submission assumed that Bromberg and Mortimer JJ had held that it was the Assistant Minister’s failure to consider all aspects of BCR16’s submission which constituted the jurisdictional error. That is not so. Instead, their Honours found that it was the Assistant Minister’s failure to carry out the task required under s 501CA(4) on a correct understanding of the law which constituted the jurisdictional error: see [60], [63]-[66].

42    I also observe that Bromberg and Mortimer JJ made it plain that they did not base their decision on a failure by the Assistant Minister to take account of mandatory relevant considerations. Their Honours noted at [61] that the case was “not about mandatory relevant considerations” and, at [90], said:

This is not an appeal about mandatory considerations, and what facts or evidence may need to be taken into account by a decision-maker where such a consideration arises.

43    The same matters indicate that the Minister’s reliance on Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 does not provide an adequate answer to the Applicant’s submission.

44    One may accept that there are some relevant differences between s 501BA(2) and s 501CA(4). It is not necessary for present purposes to assess the extent of the differences. In particular, it is not necessary to consider whether the exclusion of the rules of natural justice by s 501BA(3) is to be understood as operating in a context in which the visa holder has previously been afforded natural justice – see s 501CA(3) and (4).

45    The more important question is whether there is any indication in s 501BA(2) that, in contrast with s 501CA(4), the Minister may form the state of satisfaction it contemplates on an incorrect understanding of the law, and in particular of the aspects of the Act which are relevant. Given the strength and length of the line of High Court authority to which reference was made earlier, one would expect any attempt by the Parliament to provide that a Minister may exercise an important statutory power on the basis of an erroneous understanding of the operation of the enactment containing that power to be stated expressly. That is especially so in the context of the Act, given the recognition of the operation of the principle in relation to cognate provisions of the Act: s 116(1)(b) (Wei); s 501(2) (Steyn); and s 501CA(4) (BCR16, ANL17, Goundar). There is no such express statement in s 501BA. Counsel for the Minister referred to Huynh as supporting such a view but, on my understanding, Huynh was not concerned with this issue at all. Huynh stands for the proposition that an error by a decision-maker in the consideration of a matter to which the decision-maker is not bound to have regard does not go to jurisdiction. This proposition is not applicable in the present case. Nor in my assessment does it apply by analogy.

46    In my opinion, the Applicant’s submission should be upheld. Like Robertson J in Goundar, I consider that a correct understanding of the law to be applied is an implied condition of the valid exercise of power. That is so even when the Minister is considering a matter as broad as the national interest.

47    I conclude that the Minister is required to form the satisfaction to which s 501BA(2) refers on a correct understanding of the law and in particular, of the operation of the Act in respects which are relevant to the decision. The decision in BCR16 supports that conclusion, as do the High Court authorities to which reference was made earlier. Subject to the matter to be considered next, it is apparent that the Assistant Minister did not have a correct understanding, and that his decision is affected by jurisdictional error.

The alternative – a correct factual assumption

48    The Minister made an alternative submission which was based on a different construction of [81] of the Assistant Minister’s reasons. He submitted that instead of that paragraph reflecting a mistaken understanding by the Assistant Minister of what the Act necessarily required, it reflected an assumption by the Assistant Minister as to the manner in which an application for a protection visa, if made, would in fact be dealt with. In particular, it reflected the Assistant Minister’s assumption that a decision-maker on an application for a protection visa by the Applicant would in fact consider the question of non-refoulement obligations before considering the other criteria for such a visa. The submission was that this was a correct assumption.

49    Counsel for the Minister noted that the majority in BCR16 had adverted, albeit indirectly, to such a possible construction of the counterpart paragraph in the reasons considered in that case. He submitted that their Honours had found that there was no evidence in that case to support the correctness of such a factual assumption. That evidentiary gap did not exist in the present case having regard to the affidavit of Ms Lauman, an Assistant Secretary in the Onshore Protection Branch within the Department of Immigration and Border Protection. I will return to that affidavit shortly.

50    A number of passages in the reasons of Bromberg and Mortimer JJ in BCR16 indicate that their Honours did consider the possibility that the Assistant Minister’s assumption in that case had been of a factual kind. At [35], their Honours recorded the submission of BCR16 that the Assistant Minister’s assumption that the non-refoulement obligations in his case would be examined during the protection visa determination process as being wrong as a matter of law and unproven as a matter of fact. Later, at [68], the majority referred to the absence of evidence that the Assistant Minister had considered the course of decision-making on a protection visa application. Later, at [75], Bromberg and Mortimer JJ said that they could not “speculate about the course decision-making might take other than by reference to … the scheme of the Act … and any evidence before the Court”.

51    Ms Lauman deposed that she has held her present position since May 2016 and that she is responsible for “operational guidance and support” for decision-makers assessing applications for protection visas. Ms Lauman annexed to her affidavit an extract from the Department’s Procedures Advice Manual 3 (PAM3). The PAM3 states that it contains “the policy and procedures applicable to making decisions on temporary and permanent protection visa (PV) applications”. At pages 14-5, under the heading “Order of assessment”, PAM3 includes the following:

If a delegate finds that an applicant is a refugee as defined in s 5H(1), an assessment should be made of whether they should be excluded under s 5H(2) and whether they meet the criteria in s 36(1B) and s 36(1C).

If a delegate finds that the applicant is not refugee as defined in s 5H(1), an assessment of their claims should be made against the complementary protection requirements in s 36(2)(aa). If the delegate finds that the applicant meets the criteria in s 36(2)(aa), an assessment should be made of whether they are ineligible for grant under s 36(2C) or whether they fail to meet the criteria in s 36(1B) or s 36(1C).

If an assessment is made that an applicant satisfies the criteria relating to Australia’s protection obligations in s 36(2)(a) or s 36(2)(aa) and the applicant meets the criteria in s 36(1B) and s 36(1C) and, in complementary protection cases, is not ineligible for the grant of a PV under s 36(2C), an assessment should be made of whether they satisfy PIC 4001 (which proscribes requirements relating to the character test in s 501(6) of the Act) and PIC 4003A (which requires an applicant not to be a person whose presence in Australia may be associated with the proliferation of weapons of mass destruction).

52    Ms Lauman further deposed:

[3]    When considering applications for Protection visas it is my experience that all decision makers consider Australia’s non-refoulement obligations before considering other reasons to refuse to grant a Protection visa under s 65 of the Migration Act 1958 (Cth) …

[4]    The PAM provides an order of assessment and guidance in determining applications for Protection visas. The PAM states that decision makers must assess whether the Protection visa applicant engages Australia’s protection obligations before considering whether the applicant for the visa comes within any of the exclusionary provisions, such as s 36(1C) of the Act.

53    Relying on this evidence, and in particular the quoted passages from PAM3, counsel for the Minister submitted that, in the ordinary course, the first step in the assessment of a protection visa is whether an applicant satisfies either the refugee protection obligations or the complementary protection obligations. It is only after those matters have been considered that any exclusionary matters, such as an applicant’s character, are considered. That being so, counsel submitted that [81] of the Minister’s reasons did not reveal an erroneous understanding of what would happen in the event that the Applicant did lodge a protection visa. On the contrary, the Minister’s reasons should be understood as reflecting the expectation that decision-makers would proceed in the manner indicated by departmental policy.

54    Counsel also submitted that Ms Lauman’s evidence was material to the construction of [81] in the Assistant Minister’s reasons in that it should be taken that the draft reasons adopted by the Minister had been prepared in the context of an expectation that the provisions of PAM3 would be followed.

55    Thus, counsel submitted, there was a factual basis on which BCR16 should be distinguished.

56    The submission has at its foundation an understanding of the effect of the reasons of the Assistant Minister in [81]. In my opinion, a number of matters indicate that this submission of the Minister should not be accepted.

57    First, although the meaning of [81] is not entirely clear, its terminology is much more consistent with it being an expression of the legal effect of the Act rather than a statement of factual expectation. The Assistant Minister refers to Mr Ibrahim’s ability to make a “valid” application for another visa and to him not being “prevented” by s 48A of the Act from doing so. Coupled with that is the absence of any indication that the Assistant Minister was referring to what would occur as a matter of fact.

58    Secondly, there is no evidence that PAM3 was before the Assistant Minister at the time that he made the decision; or that the Assistant Minister was otherwise aware of the terms of PAM3; or that he was aware of the practices of decision-makers considering applications for protection visas. In short, there is no basis for supposing that the Assistant Minister made his decision with any of these matters in mind.

59    Thirdly, the terminology of [81] in the reasons appears to be a template form, having been used by the Minister or Assistant Minister in BCR16, ALN17, Steyn and this case. See also Le at [9]. In none of BCR16 or ALN17 (or for that matter, Le) does there appear to have been a positive submission that the counterpart reasons were stating a factual expectation only. It would be curious if in one case the same words reflected a legal understanding but in another a factual expectation.

60    Fourthly, I think it appropriate to take account of the circumstance that this submission of the Assistant Minister was raised for the first time by Ms Lauman’s affidavit filed on 19 September 2017. The Applicant had made plain his reliance on the decision in BCR16 on two previous occasions, on 17 August 2017 and 15 September 2017. On each of those occasions, the Court had asked counsel for the Minister the basis for the Minister’s answer to the application. On neither occasion was the Court told that the Assistant Minister had been referring in [81] only to his expectation of the factual course of an application for a protection visa, yet such a response would have been natural had that been the fact. This gives rise to an impression that the present submission may be an ex post facto rationalisation of the Assistant Minister’s position.

61    Fifthly, as counsel for the Applicant submitted, it seems improbable that an Assistant Minister having a correct understanding of the Act would have thought it unnecessary to consider the non-refoulement submission in the context of s 501BA(2) because of an expectation that it would, in the ordinary course, be considered in the context of an application for a protection visa. That is because such an Assistant Minister would also have understood that that consideration would be of no utility for the Applicant given that his application would in any event have to be refused on character grounds. One would not readily impute such an intention to the Assistant Minister.

62    Finally, the Court has not been provided with evidence from the Assistant Minister. In these circumstances, the principles stated in Jones v Dunkel (1959) 101 CLR 298 are applicable. That is to say, the inference that the Assistant Minister intended by [81] to refer to the legal operation of the Act and not to a factual expectation can be drawn more confidently because of his omission to give evidence.

63    I note that a submission to the same effect as the present was also rejected by Jagot J in Steyn, at [18]-[19].

64    For these reasons, I do not accept that [81] of the reasons are to be understood in the manner on which the Minister’s submission depended. Accordingly, the submission is rejected. That conclusion makes it unnecessary to address the other criticisms of Ms Lauman’s affidavit made by counsel for the Applicant.

Conclusion

65    For the reasons given above, the application succeeds. I make the following orders:

(1)    A writ of certiorari be issued directed to the Assistant Minister for Immigration and Border Protection, quashing the decision of the Assistant Minister for Immigration and Border Protection made on 23 May 2017 to cancel the Applicant’s Class BC (Subclass 100) Partner (Migrant) visa.

(2)    The Respondent be restrained, and an injunction is hereby issued restraining him, including whether by his officers, employees, agents, delegates or howsoever otherwise, from acting on the basis that the Applicant’s Class BC (Subclass 100) Partner (Migrant) visa was validly cancelled by the decision made by the Assistant Minister for Immigration and Border Protection on 23 May 2017.

(3)    The Applicant be released forthwith from immigration detention.

66    I will hear from the parties on the question of costs.

Associate:

Dated:    13 October 2017