FEDERAL COURT OF AUSTRALIA

Chetcuti v Minister for Immigration and Border Protection [2018] FCA 477

ORDERS

THE COURT ORDERS THAT:

1.    The application, as amended, be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

RARES J:

1    On 18 September 1991, Frederick Chetcuti brutally murdered his former wife. On 25 June 1993, following Mr Checuti’s conviction on 28 April 1993, James J in the Supreme Court of New South Wales sentenced him to 24 years penal servitude commencing on 28 April 1993, with an 18 year non-parole period. As will appear, Mr Chetcuti served every day of his 24 year sentence.

2    At 10.25am on 14 August 2017, the Minister for Immigration and Border Protection personally decided to cancel the absorbed person visa of Mr Chetcuti pursuant to his power under s 501(3) of the Migration Act 1958 (Cth) and signed that decision (the August 2017 decision). The Minister at 10.25am also signed and noted a Ministerial submission and statement of reasons on which he based the cancellation. Earlier that morning, first, the submission and reasons had been placed on the Minister’s desk by 9.16am and, secondly, I had ordered, by consent, that the Minister’s earlier decision, also made personally, of 28 March 2017 (the March 2017 decision) to cancel Mr Chetcuti’s visa under s 501(2) be quashed. The Minister was informed of the making of that order no earlier than 10.14am on 14 August 2017.

The issues

3    Mr Chetcuti, who represented himself, alleged that the August 2017 decision should be quashed for jurisdictional error on the following substantive grounds, as well as on other bases, namely that:

    the Minister made it within 25 minutes or less of the Court quashing the March 2017 decision so that he could not have considered making the August 2017 decision in accordance with law (the failure to consider issue);

    the August 2017 decision had no legitimate basis because (taking account of the Minister’s consent to the quashing of the March 2017 decision) it was the fourth time that a Minister or delegate had decided not to revoke his visa and no new probative evidence had emerged since the March 2017 decision (the unchanged circumstances issue);

    the Minister had acknowledged in a radio interview that a previous Minister had decided not to cancel the visa and that, taken together, the other decisions not to cancel his visa had exhausted the availability of the character test as a basis for cancelling it (the prior decision issue);

    the Minister could not have lawfully concluded that it was in the national interest to cancel his visa (the national interest issue);

    the Minister made the August 2017 decision on the basis of information that was not disclosed to Mr Chetcuti, thus denying him natural justice (the natural justice issue); and

    the August 2017 decision was “unconscionable” (the unconscionable issue).

4    I will explain the legislative scheme, then the factual background, before dealing with each of the issues.

The legislative scheme

5    Relevantly, s 501 provided:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate––natural justice applies

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

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

(2)    The Minister may cancel a visa that has been granted to a person if:

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

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

(3)    The Minister may:

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

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

if:

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

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

…

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

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

6    The Minister personally (s 501A(5)) also had a similar power under s 501A(3) and (4) to set aside a decision that a delegate or a Tribunal had made under s 501(2) not to exercise the power to cancel a visa, if he reasonably suspected that the person did not pass the character test and was satisfied that the cancellation was in the national interest.

7    Importantly, s 501C applied to a decision that the Minister made personally under ss 501(3) or 501A(3) to cancel a visa. It provided that the Minister, again only personally (s 501C(5)), could revoke the earlier cancellation if s 501C(4) applied. Relevantly, s 501C(2)-(4) provided:

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

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

(b)    the person satisfies the Minister that the person passes the character test (as defined by section 501). (bold non-italic emphasis added)

8    Non-disclosable information was defined in s 5(1) to mean:

non-disclosable information means information or matter:

(a)    whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

(i)    prejudice the security, defence or international relations of Australia; or

(ii)    involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

(b)    whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

(c)    whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.

9    The Minister must cause notice of the making of any decision under s 501(3) or 501A(3), or any decision to revoke or not revoke such a decision made after he has considered any representations made under s 501C(3)(b), to be laid before each House of the Parliament within 15 sitting days of either the last day of any period for making representations, if none were made, or any decision made after considering them (s 501C(8) and (9)).

Background

10    On Friday 11 August 2017, at 5.55pm, Sarah Harris, the acting director, complex cancellation of the Minister’s Department, emailed a version of the submission and reasons to Kristin McGill, the Departmental liaison officer in the Minister’s office. Ms Harris noted that she had sent the submission by email as there was no-one to send this “via PDMS tonight. The PDMS record will be sent to the MO [Ministerial Office] on Monday”. Ms Harris stated that the submission had been prepared for the Minister’s consideration:

due to the Department advising the Federal Court that we are in discussions with Mr CHETCUTI’s legal representatives to withdraw from the judicial review proceedings.

The hearing set for Monday has been vacated by the court. Our legal colleagues will keep us updated with the timing of the withdrawal. Please note, we do not have control of the timeframe and the Minister cannot make a decision on this case until the withdrawal is finalised. (emphasis added)

11    At 9.16am on 14 August 2017, Ms McGill emailed Ms Harris thanking her for the 11 August 2017 email and informed her that: “The submission is on the Minister’s desk for his consideration.”

12    The submission itself comprised seven pages of 42 paragraphs followed by a draft decision on a separate page, an index page of 20 attachments that comprised 65 pages of attachments A to S and a further 46 pages of Attachment XX. In addition, the Minister’s statement of reasons comprised 99 paragraphs that covered 11 pages and his actual decision that was on one page.

13    At 10.14am on 14 August 2017, another Departmental officer emailed Ms McGill advising her that the Court had made orders setting aside the Minister’s decision of 28 March 2017 and enclosed a copy of the sealed orders. The email then stated: “The Minister is now able to consider the submission.”

14    At 10.25am on 14 August 2017, the Minister signed, dated and recorded the time of his decision and also annotated and signed both the submission and reasons. Ms McGill emailed Ms Harris at 10.43am on 14 August 2017 attaching a copy of the signed decision.

15    There is no direct evidence as to when the Minister began to consider the submission. However, Ms Harris’ email of 11 August 2017 informed Ms McGill that he could not make a decision until after the then existing Court proceeding had been finalised. The maximum period during which the Minister could have read the submission is from when Ms McGill wrote that it was “on his desk” at 9.16am on 14 August 2017 to the time of his signature at 10.25am, or 1 hour and 9 minutes. However, there were only 11 minutes between when Ms McGill learnt that the March 2017 decision had been set aside and when the Minister made the August 2017 decision.

16    The submission and attachments, other than Attachment XX, which was the subject of the claim for public interest, or matter of State, immunity, and the decision itself were 86 pages long. I took over 20 minutes to read the 46 pages in Attachment XX, that I saw the first time during the hearing, for the purpose of considering whether I should make an order under s 130(1) of the Evidence Act 1995 (Cth) in respect of all, or any, of its contents. I directed, pursuant to s 130(1) of the Evidence Act that all but six of the 46 pages in Attachment XX, that I admitted as an exhibit, were not to be admitted into evidence.

17    Thus, had the Minister only commenced to consider the submission, after Ms McGill learnt at 10.14am of the Court orders, he could not possibly have given proper genuine and realistic consideration to the decision; in other words he could not have undertaken, in just 11 minutes or less, an active intellectual process directed at assessing the merits of the submission: cf. Carrascalao v Minister for Immigration and Border Protection (2017) 347 ALR 173 at 180-184 [32]-[46], esp at [46] per Griffiths, White and Bromwich JJ.

18    The submission that the Minister signed was stamped as received by the Minister on 14 August 2017 and was also annotated, signed and dated by him with that date, as are the August decision itself and the reasons. The submission noted, on its final two pages, that neither the Secretary of the Department nor the Border Force Commissioner had been consulted in its preparation and that the only internal or external consultation had been with special counsel, litigation. It stated that the Assistant Secretary, Character Assessment and Cancellation Branch had authorised the submission also only on 14 August 2017.

19    I find that the physical date stamped submission that was placed together with the August 2017 decision and the reasons on the Minister’s desk on 14 August 2017, each of which he signed, were not the electronic version that Ms Harris had sent to Ms McGill on 11 August 2017. That is because of the date of the Assistant Secretary’s authorisation of the submission. There is no evidence that the Minister ever saw the material in Ms Harris’ email of 11 August 2017 and I find that he did not see it.

The submission and attachments

20    The submission was headed with Mr Chetcuti’s name and age, of 72, and the heading included “Timing: Following the confirmation of withdrawal from Federal Court of Australia proceedings, please consider by Monday 14 August 2017, as agreed by your Office”. It drew to the Minister’s attention that he had the choice, which he noted, of proceeding under either s 501(2) with natural justice or in the national interest, under s 501(3), without it.

21    The Minister noted (by circling this response on the submission) that, if he decided to cancel Mr Chetcuti’s visa under s 501(3), any submission to revoke that decision that Mr Chetcuti might later make in accordance with s 501C(4), would be futile since he could not satisfy the Minister that he passed the character test. That was because of Mr Chetcuti’s substantial criminal record. The Minister also noted that the submission had informed him that Mr Chetcuti would have seven days to make representations under s 501C if he cancelled the visa.

22    The submission then informed the Minister that, when he made his March 2017 decision he had acted on the basis of Mr Chetcuti’s substantial criminal record under s 501(2), after affording him natural justice. It informed the Minister that Mr Chetcuti had been in prison until he was unconditionally released on 27 April 2017 and taken into immigration detention. The submission recorded that “because of an identified legal error in the [March 2017] decision that would in all likelihood lead to a finding of jurisdictional error”, the Department had agreed to “withdraw from” the earlier proceeding and that, by consent, this Court had quashed that decision on 14 August 2017.

23    The submission then proceeded to outline the Minister’s options to proceed under either s 501(2) or (3) and the associated statutory procedures with which it is safe to infer the Minister was familiar. It described four attachments being, first, the index of the 20 attachments, secondly, attachments A to S and XX themselves, thirdly, a decision page and, fourthly, a draft statement of reasons under s 501(3). It stated that “[t]he below submission has been prepared for your consideration of whether or not to cancel” Mr Chetcuti’s visa under s 501(3).

24    The submission then made, among others, the following points (which it sourced to identified attachments as denoted in the index):

    Mr Chetcuti was 72 years old and a national of Malta who had arrived in Australia on 31 July 1948, aged 2 and resided here for 69 years.

    Non-disclosable information under s 5 of the Act was “at Attachment XX for your consideration”.

    Mr Chetcuti had been convicted of murder on 25 June 1993 and sentenced to 24 years imprisonment and his appeal had been dismissed in December 1993.

    The sentencing judge had described Mr Chetcuti’s murder of his former wife as “brutal” and had taken into account in sentencing him that Mr Chetcuti had been seriously contemplating killing her for “at least a couple of weeks”, he had acted in wilful defiance of a Family Court order by approaching her, and he had killed her because she was seeking relief against him in the Family Court and he feared that he might lose some of his property. The judge found that Mr Chetcuti had taken steps to conceal his crime by weighing down his wife’s unconscious body with rocks before putting her in an inlet in the Parramatta Lakes where she drowned.

    On 6 April 2011, Mr Chetcuti was convicted in the Local Court of New South Wales of assault occasioning actual bodily harm and sentenced to two years imprisonment to be served concurrently with his still current sentence. The magistrate had indicated that Mr Chetcuti had severely assaulted his cell mate after being asked to switch out the light at 3.00am.

    Previously, Mr Chetcuti had been diagnosed with depression and a personality disorder.

    Mr Chetcuti had refused to discuss his offending or engage in assessment of his suitability for parole with the prison authorities and a 2017 pre-release report had noted that he “admitted that he felt no remorse”.

    Although the Probation and Parole Service had described Mr Chetcuti’s previous prison behaviour as “exceptionally difficult”, his more recent behaviour in prison had been described as polite and compliant.

    In 2011, the Service had assessed Mr Chetcuti as being within the low/medium risk category for re-offending.

    Mr Chetcuti had a granddaughter and grandson, was estranged from his two daughters, but had received visits in prison from his son, sister-in-law and other family members, and that his son and others had visited him in immigration detention.

25    Finally, the submission referred to Ministerial correspondence from two members of the Parliament that were not in the attachments. I also admitted into evidence copies of that Ministerial correspondence, being letters to the Minister from the Hon Philip Ruddock MP dated 29 May 2015 and his successor as the Member for Berowra, Julian Leeser MP, dated 31 October 2016 that reiterated the matters that his predecessor’s letter had raised. The letters raised concerns about Mr Chetcuti’s imminent release at the expiry of his sentence or earlier, if granted parole. Mr Ruddock pointed out that Mr Chetcuti’s case had been considered twice under s 501, once by a delegate and subsequently by a Minister, and that on both occasions he had been given a warning. Mr Ruddock was concerned that case law had established that, unless new information became available and there was a significant change to the facts on which the previous decision had been based, it may not have been possible for the Minister to cancel Mr Chetcuti’s visa.

26    The 20 attachments to the submission included three that had not been before the Minister when he made the March 2017 decision, namely, Attachments Q, R and S (that in total were four pages long).

27    Attachment H was a letter from the Department to Mr Chetcuti dated 22 June 2009 informing him that a delegate had decided not to cancel his visa on character grounds “at this time”, but that this decision might be reconsidered if fresh information came to notice or if he incurred a liability on new grounds. The letter told him that disregard of its warning would weigh heavily against him if his case were reconsidered.

28    Attachment I was a letter from the Department to Mr Chetcuti dated 22 March 2012 informing him (after his conviction and sentence for assault on 6 April 2011) that, after “taking into account all relevant considerations” the then Minister had decided not to cancel his visa on character grounds (the 2012 decision). The letter stated the Minister had decided to give a warning to Mr Chetcuti that was in identical terms to that in the 22 June 2009 letter. However, the index of the attachments described this letter as a “Departmental warning” and neither the submission nor the reasons referred to it being a decision made by the previous Minister. The only places where that fact appeared in the material before the Minister was Attachment I itself and in the correspondence from Mr Ruddock and Mr Leeser.

The reasons of the Minister

29    The reasons comprised a detailed and accurate description or summary of most of the contents of the attachments, except for Attachment XX, which the reasons described as follows:

Non-disclosable information

11.    I had regard to information that is non-disclosable under s. 5(1) of the Act and will not be disclosed to Mr CHETCUTI in the revocation process under s. 501C. This information is relevant to my consideration of the national interest. (emphasis added)

30    After stating a considerable number of conclusions about the numerous subject matters of the attachments and identifying other matters that he had noted or taken into account, the Minister’s reasons stated on page 8:

Conclusion

66.    I have taken into account that nature and seriousness of Mr CHETCUTI’s criminal conduct involving the murder of his then wife, and that whilst serving the term of imprisonment for that offence, he reoffended with violence by assaulting another prisoner.

67.    In considering the nature of the harm caused by violent offending engaged in by Mr CHETUCTI [sic], the victim of his first offence lost her life, and the victim of his assault offending suffered various injuries referred to as being scars on his head, a cracked cheek and the loss of fingernails. I also note that violent offending poses a risk of physical or psychological harm to victims.

68.    Overall, I find there is an ongoing risk that Mr CHETCUTI will reoffend. Given his past violence offending I find that if he were to commit further violent offences, it would place members of the community at risk of physical and/or psychological harm.

69.    In sum, having regard to the above, including his serious criminal history and the risk to the Australian community, I conclude that it is in the national interest to cancel Mr CHETCUTI’s visa. (emphasis added)

31    The reasons then discussed (over more than two pages) factors that the Minister said he considered in the exercise of his discretion, including the best interests of Mr Chetcuti’s two grandchildren, the expectations of the Australian community, the absence of any non-refoulement obligation, the strength, nature and duration of Mr Chetcuti’s ties to Australia and the extent of impediments on him were he removed from Australia. Finally, the Minister’s conclusions appeared in the final seven paragraphs of the reasons, the last two of which were:

98.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even after applying a higher tolerance of criminal conduct by Mr CHETCUTI, than I otherwise would, because he has lived in Australia for most of his life and from a very young age.

99.    I find that the considerations favouring non-cancellation, in particular the best interests of the affected grandchildren treated as a primary consideration, are however, outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to cancel Mr CHETCUTI’s Absorbed Person visa under s. 501(3)(b) of the Act.

32    What is notable about the Minister’s reasons is the absence of any reference to the nature of the contents of Attachment XX or how, having asserted in par 11 of his reasons that he had had regard to the information in it, he had done so. The Minister did not say what, if any weight or other role, he had given to that information other than that it was “relevant to my consideration of the national interest”.

33    The six pages from Attachment XX that I admitted into evidence were three letters dated 8 February 2013, 3 March 2014 and 27 March 2015 from officers of Corrective Services New South Wales and two modified pre-release summaries, one dated 22 January 2013 and the other for a hearing date of 12 February 2014. The letters referred to the recent decisions of the State Parole Authority not to release Mr Chetcuti on parole and the reports referred to his failure to participate in any therapeutic programs or services relating to his rehabilitation.

34    On 17 August 2017, three days after making the August 2017 decision, the Minister gave a radio interview on 2GB with Ray Hadley. The Minister did not object to Mr Chetcuti tendering what he had said in the interview, about his consent to the quashing of the March 2017 decision, namely:

Well, Ray, I went back and had a look at this case. And, as you say, he was sentenced to 24 years in jail in ’93 with a bottom of 18, and there was a decision made by the Labor Immigration Minister in 2012. They decided – that Minister decided not to cancel his visa. I cancelled the visa earlier this year, as you point out. I’m advised that there was a technical problem with some glitch in the way the decision was made.

The failure to consider issue

35    The Act gives the Minister a non-delegable power, in s 501(3), to decide to cancel the visa of a person whom he reasonably suspects does not pass the character test if he is satisfied that it is in the national interest to do so. And, s 501(5) also provides that, when the Minister exercises this power, he need not afford procedural fairness to the visa holder. The person whose visa is cancelled can only make representations after the event under s 501C(3) and (4) to persuade the Minister that because the person satisfies the Minister that he or she passes the character test, the cancellation decision should be revoked. Importantly, unless the person so satisfies him, s 501C(4) does not give the Minister power to revoke a decision to cancel a visa made under s 501(3).

36    Mr Chetcuti bore the onus of proving that the Minister had not brought an active intellectual process to bear in assessing the merits of the submission and in forming the views expressed in the reasons: Carrascalao 347 ALR at 184 [46].

37    The evidence leaves open that the Minister could have commenced reading and considering the submission and attachments, including the reasons, at any time after they were placed on his desk at 9.16am on 14 August 2017. Moreover, the material in the attachments had been summarised in large part, accurately, in the submission and reasons. However, Attachment XX and the fact recorded in Attachment I, that a previous Minister had made a decision under s 501(2) not to cancel the visa, were not summarised in the statement or the reasons.

38    Thus, the Minister had potentially over one hour to read and consider the material before him and form a state of mind to proceed as the drafted reasons proposed. The actual decision was open on the material before the Minister, so far as that material is in evidence. No doubt, the Minister was conscious that he could not exercise the power under s 501(3) until he knew that the Court had quashed the March 2017 decision. But, this did not preclude him preparing to make the August 2017 decision in advance of that knowledge coming to him, since he knew that the order would be made at some stage on 14 August 2017. And the Minister can be assumed to have had a good understanding of the procedural steps and statutory power that governed his making of a decision under s 501(3), not least because the submission had described these and he noted them. The format of such a submission and the usefulness of the accompanying material were matters with which the Minister would have been familiar.

39    While it is possible that the Minister only commenced his consideration of the submission, attachments and reasons at or after 10.14am, and made his decision with 11 minutes, I am not satisfied that he did this. There is no evidence, for example, that the Minister was occupied with any other activity between 9.16am and 10.25am than considering the submission, attachments and reasons. Mr Chetcuti had the onus to prove that the Minister did not give the August 2017 decision proper, genuine and realistic consideration. The evidence is insufficient to enable me to feel a persuasion of mind, or be satisfied on the balance of probabilities in accordance with the matters referred to in s 140(2) of the Evidence Act, that the Minister did not undertake an active intellectual process during the period between 9.16am and 10.25am, or during a sufficient part of it, before making the August 2017 decision.

40    Mr Chetcuti also argued that the PDMS reference numbers at the top of each of the March 2017 submission (MS17-000768) and the August 2017 submission (MS17-002977) indicated that the Minister had made about 2,200 cancellations in the approximately 140 days between them. He argued that this showed that the Minister could not have given sufficient consideration in accordance with law to the August 2017 decision before making it.

41    I reject that argument. First, it presupposes that every submission that the Minister considered was a visa cancellation decision as opposed to the many other matters that a Ministerial submission might address. There was no evidence to support the hypothesis. Secondly, the argument ignored the fact that at least the Assistant Minister for Home Affairs administered provisions under the Act and that such a Minister could and did make decisions under the Act (see too s 19 of the Acts Interpretation Act 1901 (Cth)).

42    I reject Mr Chetcuti’s argument that the Minister failed to consider the August 2017 decision in accordance with law.

The unchanged circumstances issue

43    The fact that the Minister’s predecessor had decided in 2012 not to exercise his power under s 501(2), after Mr Chetcuti’s 2011 conviction and sentence, is a matter that the present Minister could take into account, five years later, when considering the exercise of the different power under s 501(3). The reasons stated in par 62 “I note Mr CHETCUTI was issued with formal Departmental warnings on 22 June 2009 and 22 March 2012”. The Minister told Mr Hadley in his 17 August 2017 interview that his Ministerial predecessor had made the 2012 decision.

44    Mr Chetcuti argued that effectively these prior decisions had exhausted the Minister’s power to cancel his visa under s 501(3) or any provision of the Act. He contended that because his circumstances, including his criminal record, had not changed since the 2012 decision, the Minister could not use s 501(3) to cancel his visa. His argument on this issue and the prior decision issue overlapped in places and I have, at the risk of some unfortunate repetition, tried to address each.

45    I reject that argument. In exercising the discretion under s 501(2) when making the 2012 decision, the then Minister was not concerned with the distinct question that s 501(3)(d) involves, namely the national interest. Each of s 501(2)(a) and 501(3)(c) require, as a condition of the exercise of their separate discretions to cancel a visa, that the Minister reasonably suspects that the person does not pass the character test. Because of his 24 year sentence, first, Mr Chetcuti could not possibly have satisfied any Minister that he did pass the character test and, secondly, any Minister considering the cancellation of Mr Chetcuti’s visa inevitably must have formed the reasonable suspicion that Mr Chetcuti did not pass it, as required by s 501(2)(a) and (3)(c).

46    In making the August 2017 decision, the Minister chose to exercise the different power under s 501(3) to that used by his predecessor under s 501(2). The exercise of the power in s 501(3) required the Minister to inform the Parliament specifically of its use. The discretion not to cancel a visa under s 501(2) is largely unconfined. The decision-maker under s 501(2) can therefore consider a wide range of criteria, including the national interest, and weigh those as he or she considers appropriate once the two conditions in s 501(2)(a) and (b) are established.

47    In contrast, s 501(3)(d) creates a single relevant consideration, namely what is in the national interest, once the Minister forms the state of reasonable suspicion required in s 501(3)(c). The only constraint on the exercise of the discretion to cancel a visa under s 501(3)(b) arises after the decision to do so. At that point, the visa holder is afforded a hearing (by exercising his or her right to make representations to seek revocation) under s 501C(3) and (4), to establish that he or she actually passes the character test.

48    While s 501C(4) uses the word “may” to condition the Minister’s exercise of power to revoke a visa cancellation under s 501(3), the Parliament must have intended that, if the representations under s 501C(3)(b) do satisfy the Minister, the Minister will revoke the cancellation. That follows because in those circumstances the foundation in s 501(3)(b) for the exercise of the power to cancel would no longer exist. In other words, once the person satisfied the Minister that he or she did pass the character test, as s 501C(4)(b) provides, the Minister could not have any suspicion, let alone a reasonable suspicion under s 501(3)(c). Therefore, the precondition in s 501(3)(c), to the exercise of his power, under s 501(3)(d), to act in the national interest in respect of a person who may not pass the character test, would no longer exist.

49    A decision-maker in exercising the discretion in s 501(2) may weigh a broad variety of considerations to which he or she could have regard in deciding whether to cancel a visa, once the preconditions in pars (a) and (b) of s 501(2) were satisfied. The discretion under s 501(2) is unconfined except to the extent that the subject matter, scope and purpose of the Act excludes consideration of some matter: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ. Thus, a decision-maker, including a Minister, can decide under s 501(2) not to cancel a visa after weighing the national interest against, or with, other counter-veiling considerations.

50    While the discretion in s 501(3) is equally unconfined, once the precondition in s 501(3)(c) is satisfied, s 501(3)(d) authorises the Minister to limit his consideration only to whether the cancellation is in the national interest, but allows him, if he wishes, to weigh that consideration among any others.

51    But, the Minister under s 501(3)(d), can decide to cancel a visa regardless of the strength or weight or even existence of other considerations, if he is satisfied that outcome is in the national interest. This construction, of the paramountcy that s 501(3)(d) gives to the criterion of the national interest, is reinforced by, first, the power being one that only the Minister, personally, can exercise and the fact that he can do so without affording the visa holder any procedural fairness before exercising the power, as s 501(5) provides, and, secondly, confining the visa holder to a right to make representations under s 501C(3)(b) that can only be effective to, or at the very least must, satisfy the Minister that the person passes the character test. That is, however compelling the visa holder’s circumstances may be, nothing he or she may say in any representations can affect the cancellation unless, as s 501C(4)(b) provides, that person first satisfies the Minister that he or she passes the character test.

52    As Gavan Duffy CJ and Dixon J said in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (and see too McTiernan J at 20-21; David Grant & Co Pty Ltd (Receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed):

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

53    It follows that a prior decision under s 501(2), even by a Minister not to cancel a visa, does not operate to restrict a Minister exercising the power to cancel under s 501(3).

54    The national interest is a flexible criterion involving questions of political judgment by a Minister personally in light of the contemporary circumstances in which he or she exercises the power under s 501(3). I will deal with the nature of this criterion in more detail below in discussing the national interest issue.

55    In arriving at the August 2017 decision, the Minister was also bound to take into account the most up to date information. The reasons included 33 paragraphs addressing the risk to the Australian community. In those paragraphs, the Minister considered Mr Chetcuti’s circumstances and behaviour, including as described in reports by the Service on and after 7 February 2011 and the 2012 decision. In particular, the reasons stated:

53.    I have also considered the Pre Release Anniversary Report of 18 January 2017. While the report also described Mr CHETCUTI as not representing a ‘management issue’, it noted Mr CHETCUTI was the subject of disciplinary action in September 2016. Specifically, the report noted Mr CHETCUTI was the aggressor in a physical altercation with an Aboriginal inmate and was subsequently transferred to another correctional facility following threats from other Aboriginal inmates.

54.    I accept Mr CHETCUTI’s more recent conduct in gaol, leading up to the conclusion of his sentence in April 2017, had generally been satisfactory and note he had not incurred any institutional misconduct charges since 2013. However, while I note Mr CHETCUTI’s history of charges largely related to incidents at the lower end of seriousness, I find they were reflective of lengthy pattern of poor compliance within the custodial environment. Furthermore, I note Mr CHETCUTI’s conviction and disposition of imprisonment for an assault on a fellow inmate and his 2016 altercation with an Aboriginal inmate. I find Mr CHETCUTI’s conduct in gaol to be largely unsatisfactory.

55.    I have had regard to Mr CHETCUTI’s conduct in immigration detention since 27 April 2017, and find it to be satisfactory to date. (bold emphasis added)

56    The Minister took into account (at pars 63 and 64) Mr Chetcuti’s refusal to participate in any offence-targeted programs while incarcerated in the five year period after the 2012 decision as well as his 2016 behaviour when he interacted with the Aboriginal inmate. Self-evidently, all of those matters were new since the 2012 decision. It was open to the Minister to have regard to those matters when informing his state of satisfaction for the purpose of s 501(3)(d).

57    I am of opinion, that the Minister was not precluded, in August 2017, from exercising afresh his discretions under each of s 501(2) and (3) in respect of Mr Chetcuti in the circumstances of his case, given the changes that had occurred since the 2012 decision. As Griffiths and Perry JJ held in Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at 511 [36]-[38], with whom Mortimer J agreed on this aspect at 516-517 [67], 517-518 [71]-[73], the power to cancel a visa under s 501(2) can be exercised after an earlier decision not to cancel it, under that provision, if a relevant new fact emerges that potentially bears upon the exercise of the power. That was because s 33(1) of the Acts Interpretation Act provided that where an Act conferred a power, the power may be exercised “from time to time as occasion requires”, and nothing in the Migration Act expressed a contrary intention.

The prior decision issue

58    Next, Mr Chetcuti argued that the August 2017 decision was not open to be made because of the 2012 decision by the previous Minister and absence of any new circumstances that had arisen subsequently. He contended that the Minister had no basis on which he could revisit the earlier decisions not to cancel Mr Chetcuti’s visa.

59    Mr Chetcuti’s visa remained susceptible at all times to cancellation under s 501(3) notwithstanding the 2012 decision. The Minister’s ability to exercise his discretion under s 501(3) cannot be fettered by a prior decision under a different power in the absence of any statutory constraint. The powers of cancellation in s 501(2) and (3) are independent of each other and operate, or at least can operate, in different factual scenarios. The Minister’s satisfaction as to what is in the national interest must be arrived at in good faith and in accordance with what Gibbs J (whose view Brennan CJ, Toohey, McHugh and Gummow JJ approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276) said in Buck v Bavone (1976) 135 CLR 110 at 118-119, namely:

the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. (emphasis added)

60    Mr Chetcuti’s contention that the August 2017 decision was invalid based on the prior decisions cannot succeed. That argument was essentially the same as that in the unchanged circumstances issue and must fail for the same reasons. First, no Minister had made a decision, before the August 2017 decision, under s 501(3). Therefore, it was open to the Minister to decide whether it was in the national interest to cancel Mr Chetcuti’s, since he could not pass the character test. All that the 2012 decision decided was that, in the circumstances that existed at that time, despite Mr Chetcuti not being able to satisfy the previous Minister that he passed the character test, that Minister had exercised his discretion not to cancel the visa under s 501(2). Secondly, Mr Chetcuti’s circumstances had changed in the five years since the 2012 decision. The Minister’s reasons referred to these changes, and were based on the most recent and accurate information available to the Minister at the time of making the August 2017 decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-45 per Mason J; SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571 [27]-[29], 573 [40] per Rares J; Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 at 292 [27]-[28], 297 [53] per Mansfield, Gilmour and Foster JJ.

61    The Minister had regard to Mr Chetcuti’s recent conduct, including the incident in 2016 in which the Minister found Mr Chetcuti had been the aggressor in a physical altercation. He also had regard to Mr Chetcuti’s continuing lack of remorse for, and insight into, his offending conduct, particularly in respect of the murder of his former wife. The Minister concluded that there was an ongoing risk that Mr Chetcuti would reoffend and that this put members of the community at risk, in August 2017, of physical and or psychological harm. He also considered Mr Chetcuti’s most recent interactions with others while in goal and detention, with his family and friends, and the impact that his removal would have on those latter persons as well as on him. That material was not the same as what was before the previous Minister in 2012.

62    In addition, the Minister had regard to Attachment XX. As noted above, his reasons do not indicate, how or to what extent, he had regard to the information in it and the role that regard played in his decision-making. The Minister was not obliged to afford procedural fairness under s 501(3) to Mr Chetcuti by force of s 501(5). The definition of “relevant information” in s 501CA(2) excluded “non-disclosable information” (as defined in s 5(1)) from the particulars of relevant information that he had to give Mr Chetcuti under s 501C(3)(a)(ii). Therefore, the Minister’s omission from his reasons of the way in which he dealt with the non-disclosable information could not have been a jurisdictional error in the absence of any statutory requirement that he give such reasons (as opposed to reasons relating to the character test issues under ss 501(3)(c) and 501C(2) and (3)): cf. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 98-100 [23]-[29] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. As their Honours said, the application of the principles of procedural fairness, in a particular case must always be moulded to its particular circumstances: VEAL 225 CLR at 99 [25].

63    Here, Mr Chetcuti suffered no practical injustice from the absence of reasons as to how the Minister dealt with Attachment XX: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 9-10 [27]-[28] per Gleeson CJ. This is because the contents of Attachment XX could not be relevant to any representations that Mr Chetcuti could have made to enliven the limited ground for revocation of a decision under s 501(3) afforded by s 501C(4). That follows simply because nothing that Mr Chetcuti could say could provide a basis on which the Minister could be satisfied that he passed the character test.

64    It is important to appreciate that s 501C(3) imposes a limited duty on the Minister of providing, “in the way that the Minister considers appropriate in the circumstances”, to the person whose visa he has cancelled under s 501(3), particulars of relevant information (excluding non-disclosable information (s 501C(2)) that would be the, or part of the, reason for making the August 2017 decision. Thus, first, the Minister could not provide particulars of non-disclosable information that he took into account. Secondly, he had to give Mr Chetcuti particulars of information, to the extent that it was able to be disclosed, that was the, or part of the, reason for the cancellation, in the way in which the Minister considered appropriate. There is no evidence to show that the Minister considered the disclosure to Mr Chetcuti of his reasoning process in the reasons to be other than appropriate.

65    As the submission pointed out to the Minister, it would be futile for Mr Chetcuti to make representations under s 501C(3)(b) since, objectively, he failed the character test and the power to revoke the decision under s 501C(4) could only be exercised if Mr Chetcuti were able to satisfy the Minister that he did pass the character test.

The national interest issue

66    As I have discussed above, the 2012 decision by the Minister’s predecessor was made under s 501(2). The material in Attachment XX could not have affected the Minister’s capacity to form the reasonable suspicion that Mr Chetcuti did not pass the character test as required in s 501(3)(c). Objectively, Mr Chetcuti had a substantial criminal record within the meaning of s 501(6)(a) and (7)(c) (as the Minister found in par 93 of the reasons). That is because he had been sentenced to two terms of imprisonment of 12 months or more, namely 24 years and 2 years.

67    The criterion prescribed by s 501(3)(d), that the Minister be satisfied that the cancellation is “in the national interest”, involved him personally forming a state of mind, namely “satisfaction”, on what is “largely a political question”, as French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ held in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 46 [40]. Indeed, s 501C(8) and (9) required the Minister to give notice of any decision that he made under s 501(3) to each House of the Parliament, no doubt because of its significance as a decision concerning what the Minister was satisfied was in the natural interest. The Parliament required that it be informed of each specific instance of the exercise of the power under s 501(3) as an aspect of express Ministerial responsibility.

68    Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ explained the operation of s 501(3) in Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350 at 363-364 [57] as follows:

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. The concept of the national interest, the Minister’s satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”. (R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; [1965] ALR 1067, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; 329 ALR 491; [2016] FCAFC 11; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28) (emphasis added)

69    Their Honours held that the Minister had to evaluate the material to which he had regard reasonably in forming his state of satisfaction as to the national interest in exercising his discretion under s 501(3): Graham 347 ALR at 364 [59]. They also explained that, where a Court upholds, as I have, a claim for public interest, or matter of state, immunity (347 ALR at 365 [61]):

The court in such a case has not been deprived of access to the material in limine. The court has rather been able to weigh, and has weighed, the public interest in non-disclosure of the particular information against the interests of justice in the particular circumstances of the case before it and has made an assessment that the former outweighs the latter.

70    As they held, a finding that some relevant material before the Minister is immune from disclosure and thus one party to the litigation is handicapped, does not prevent the court exercising its ordinary jurisdiction, on the material in evidence before it, which may be less than the whole of the relevant materials (347 ALR at 358 [33], 364 [61]). However, the consequence of upholding a claim for public interest, or matter of state, immunity may be that one party or both may find it more difficult to prove or make out his, her or its case.

71    On the evidence that I admitted at the hearing, the reasons that the Minister gave for exercising his discretion in reliance on s 501(3)(d), appear to be reasonable, based on a correct understanding of the law, and his decision is one that an honest man, competent to discharge the duties of his office, could have made on the material in evidence and for the reasons that the Minister expressed: Graham 347 ALR at 363-364 [57], [59].

72    No inference can be drawn about the degree to which the Minister was entitled to consider, or correctly considered, the material in Attachment XX that is not in evidence except that it, in fact, comprised information properly (as I ruled) the subject of matter of state immunity. The parts of Attachment XX that I admitted into evidence provided no basis for concluding that the Minister had made a jurisdictional error in the exercise of his discretion: cf. Sagar v O’Sullivan (2011) 193 FCR 311 at 324-325 [72]-[73] per Tracey J.

73    A court’s evaluation of such a decision however does not involve any determination of whether or not the court would have made the same or another decision based on the merits. Mr Chetcuti’s argument in essence, was that once the Minister’s predecessor made the 2012 decision under s 501(2), no subsequent Minister could be satisfied under any other provision of the Act, including s 501(3), that his visa should be revoked. In particular, Mr Chetcuti asserted that the Minister could not make the August 2017 decision because nothing had changed since the 2012 decision. As I have explained that argument is factually and legally untenable because not only were there new and up to date facts, but also the Minister was exercising a different and independent discretionary power under a different section of the Act. Mr Chetcuti did not articulate any argument to suggest (other than disagreeing with the outcome) that it was, legally, unreasonable for the Minister to have concluded that the cancellation of the visa was in the national interest.

74    A reasonable person in the Minister’s position, might conclude, in good faith, that it was not in the national interest that an unrepentant, uninsightful and unreformed non-citizen murderer, who had so behaved during his 24 year head sentence that he had not been found suitable or eligible for parole, be entitled to retain a visa to stay in this country. That conclusion could be seen as one reasonably open to an honest person in the Minister’s position, in light of the matters to which the Minister referred in pars 53-54, 66-69 and 98-99 of his reasons (see [30], [31], [55] above).

75    I am of opinion that the Minister’s reasons evince a reasonable evaluation by him, in good faith, that an honest and reasonable person in his position could make on the material in evidence before me, that it was in the national interest to cancel Mr Chetcuti’s visa. Of course, another Minister, acting reasonably, may have evaluated the same material differently and come to a different state of satisfaction under s 501(3)(d). A decision in judicial review proceedings such as these, that a Minister, or other administrative decision-maker has acted reasonably in arriving at the impugned decision, involves the Court making a finding that the decision-maker has acted in accordance with the process that the Parliament has prescribed in an Act: Wu Shan Liang 185 CLR at 272; see too at 275-276; Graham 347 ALR at 363-364 [57].

The natural justice issue

76    As I have explained above, s 501(5) provided that the Minister did not have to afford procedural fairness to Mr Chetcuti before making the August 2017 decision. Mr Chetcuti’s argument to the contrary is untenable in light of that section.

The unconscionable issue

77    Mr Chetcuti’s claim that somehow it was unconscionable for the Minister to cancel his visa is also without substance. First, ordinarily, equitable principles do not apply to the judicial review of the exercise by a decision-maker of a statutory power. Secondly, even if this were not so, there was nothing unconscientious in the Minister’s making of the August 2017 decision. He had power to make it if, as he decided, he was satisfied, reasonably and honestly, that it was in the national interest. The Minister is answerable to the Parliament on the political question of whether he should have been satisfied that the cancellation was in the public interest. A court cannot superimpose on the express terms of s 501(3) an equitable constraint, that involves it in evaluating whether the Minister acted unconscionably in forming his state of mind that he was satisfied that it was in the national interest to cancel a visa. So long as he acted in good faith, reasonably and not irrationally, capriciously or arbitrarily, the Minister was free to decide for himself on the material before him, in the submission, attachments and reasons, what was in the national interest.

78    Moreover, it is difficult to see how the evaluation of the national interest could be constrained by the particular consequences for an individual of the cancellation of his or her visa, however undoubtedly harsh they may be at a personal level. The Minister’s good faith and reasonable consideration of what is in the national interest will be the determining factor as to the validity of the exercise of his discretion to cancel a visa under s 501(3)(b).

79    In arriving at such a decision, the Minister must weigh, and in Mr Chetcuti’s case did weigh, a variety of conflicting circumstances, some of which told in Mr Chetcuti’s favour, but others against it. However, nothing that either the Minister stated in his reasons or Mr Chetcuti identified in argument before me, indicated that the Minister made the August 2017 decision in a manner that was, even arguably, unconscientious.

80    Mr Chetcuti’s argument assumed that the 2012 decision determined once for all that a Minister could never decide to cancel his visa unless he committed a new offence that, in itself, would create a substantial criminal record within the meaning of s 501(7) of the Act. That argument ignored the independent statutory power under s 501(3) that the previous Minister did not address, let alone exercise, when he made the 2012 decision under s 501(2).

81    In my opinion, nothing in the circumstances precluded the Minister from considering the exercise of, or his exercising, the separate discretion under s 501(3) to cancel Mr Chetcuti’s visa once he was satisfied that it was in the national interest to do so. The national interest necessarily supervenes the private interests of individuals, and in particular aliens, such as Mr Chetcuti.

Mr Chetcuti’s other bases

82    Mr Chetcuti also sought in the amended originating application a variety of other remedies, including an injunction to prevent the Minister removing him or cancelling “any rights of the Applicant to remain in Australia”, an order for his immediate release from immigration detention, punitive damages, and an order quashing “the deemed Absorbed Person visa thrust upon the Applicant” and restoring “his accrued rights to the Permanent Residency of a New Australian by his arrival in 1948 in Australia, prior to the inception of the Migration Act and well prior to the deemed Absorbed Person visa in 1994”.

83    To the extent that Mr Chetcuti asserted that he could not have held an absorbed person’s visa, that argument cannot be accepted because Kiefel CJ, Bell, Keane and Edelman JJ rejected it in respect of another Maltese born person who had arrived in Australia 61 years ago in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61 at 63 [1], 69-70 [34]-[40]. Mr Chetcuti is an alien whom s 34 of the Act deemed to be the holder of an absorbed person visa granted on 1 September 1994: Falzon 351 ALR at 70 [36]-[37].

84    Therefore, I reject Mr Chetcuti’s argument that sought to challenge his status, immediately before the August 2017 decision, as the holder of an absorbed person visa.

85    Mr Chetcuti also advanced other untenable arguments. First, he contended that the August 2017 decision, his consequent immigration detention and pending removal, was a form of punishment. That argument is also unsustainable, because s 501(3) is a valid law and, by force of the cancellation of his visa, Mr Chetcuti must be held in immigration detention as an incident of his removal pursuant to s 189 of the Act. As Kiefel CJ, Bell, Keane and Edelman JJ said in Falzon 351 ALR at 71 [47]:

The exercise of a power of cancellation of a visa by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power. It has long been recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa as a step necessary to achieve the removal of a person from Australia should be viewed in the same light. (emphasis added)

86    Secondly, Mr Chetcuti argued that the August 2017 decision was “racially discriminating” because he was not Australian-born and was being detained and removed when that outcome did not happen to persons who were Australian-born. That argument has no foundation because it is in the teeth of the power of the Parliament under s 51(xix) of the Constitution to make laws with respect to aliens, namely persons not born in Australia (or otherwise who are born overseas to Australian parents in circumstances where, by law, those persons are not Australian citizens by birth). In exercising his specific power to cancel a visa under s 501(3), because he reasonably suspects the non-citizen does not pass the character test (as is indisputably the case in respect of Mr Chetcuti) and is satisfied that the cancellation is in the national interest, the Minister must act on the jurisdictional fact that the person whose visa is cancelled is not an Australian citizen: i.e. is an alien.

87    The necessary foundation of a person’s status as an alien cannot be converted, as Mr Chetcuti argued, into “racial” discrimination. The status of an alien has nothing to do with race and, if the power to cancel a visa under s 501(3) could be characterised as discriminatory, the power is conferred in its terms by an Act of the Parliament that is unconstrained by any Constitutional limitation. The power in s 501(3) is intended to operate to deal with persons because of the discrimen of their status as aliens or as a class of persons identified because the Minister reasonably suspects that such persons do not pass the character test: cf. Falzon 351 ALR at 71 [45] per Kiefel CJ, Bell, Keane and Edelman JJ. Thus, it is true that the Migration Act as a whole, and s 501(3) in particular, operate on persons on the discriminatory basis that they are aliens or non-citizens and do not have the same rights and privileges as citizens. All laws are discriminatory in such a sense, in that they operate selectively in respect of particular persons or subjects or create norms of conduct and legal consequences that attach to departures from those norms, such as criminal offences.

88    It is absurd to argue that, because s 501(3) creates an executive power that selects a legal consequence based on a person’s status as an alien who holds a visa, by exercising his power under the section to cancel that visa, the Minister is racially discriminating against the alien. Rather, unless the Minister’s decision is affected by jurisdictional error, it will be a lawful exercise of his power to treat an alien differently to how a citizen may lawfully be treated.

Conclusion

89    I am of opinion that, Mr Chetcuti has failed to establish that the Minister made any jurisdictional, or other, error in making the August 2017 decision. It follows that the application, as amended, must be dismissed with costs.

Associate:

Dated:    11 April 2018