FEDERAL COURT OF AUSTRALIA

Ibrahim v Minister for Home Affairs [2018] FCA 1592

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review dated 19 April 2018 be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an application for judicial review of a decision made by the Assistant Minister for Home Affairs. For the purposes of the Migration Act 1958 (Cth) (the Act), the Assistant Minister is “the Minister” (Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 at [21] per Perry J). The applicant is Mr Jacob Pwamori Ibrahim and he complains of a decision made by the Assistant Minister on 26 February 2018 to set aside a decision under s 501CA(4) of the Act to revoke a cancellation of his subclass 100 Partner (Migrant) visa under s 501(3A) and to cancel the visa. The application is before this Court in its original jurisdiction by reason of s 476A of the Act.

2    There are two grounds of judicial review both alleging jurisdictional error on the part of the Minister.

The Facts

3    Mr Ibrahim is approximately 33 years of age and he is a national of Nigeria. He has three children aged approximately 10 years, 7 years and 6 years respectively. He has a substantial criminal record.

4    As at 17 July 2015, Mr Ibrahim was in custody for his criminal offending and a delegate of the Minister cancelled his visa as required by s 501(3A) of the Act. Section 501(5) provided that the rules of natural justice and the code of procedure set out in Subdivision AB of Division 3 of Part 2 of the Act did not apply to a decision under, inter alia, s 501(3A).

5    The Minister gave Mr Ibrahim written notice of the decision, particulars of relevant information and an invitation to make representations as the Minister was required to do by s 501CA(3) of the Act. Mr Ibrahim made representations in accordance with the invitation and, on 25 August 2016, a delegate of the Minister decided to revoke the original (and mandatory) decision to cancel Mr Ibrahim’s visa.

6    On 23 May 2017, the Assistant Minister set aside the delegate’s decision and cancelled Mr Ibrahim’s visa under s 501BA(2) of the Act. That decision was the subject of a successful judicial review application in this Court and, on 13 October 2017, the decision was quashed (Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218; (2017) 256 FCR 50 (Ibrahim (No 2))).

7    The Assistant Minister then made the decision which is challenged in this proceeding.

The Assistant Minister’s Decision

8    The power under s 501BA(2) is available to the Minister personally where the decision to revoke the cancellation of a visa has been made by a delegate of the Minister or by the Administrative Appeals Tribunal. The rules of natural justice do not apply to a decision of the Minister under s 501BA(2) and such a decision is not reviewable under Part 5 or Part 7 of the Act. The Minister may exercise the power in s 501BA(2) to set aside, revoke and cancel the visa if the Minister is satisfied the person does not pass the character test because of the operation of provisions which are identified in s 501BA(2)(a) and the Minister is satisfied that the cancellation is in the national interest.

9    The relevant provisions, in effect working backwards from s 501BA of the Act, are 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.

(2)    Action by Minister—natural justice does not apply 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).

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

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

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

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(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.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

…

501    Refusal or cancellation of visa on character grounds

(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.

…

(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).

I also set out cl 866.225 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) which deals with criteria to be satisfied at the time of decision in the case of an application for a protection visa, and cl 4001 in Schedule 4 of the Regulations which is referred to in cl 866.225:

866.225 The applicant:

  (a)    satisfies public interest criteria 4001 and 4003A; and

(b)    if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

4001    Either:

(a)    the person satisfies the Minister that the person passes the character test; or

(b)    the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c)    the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)    the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

10    In this case, prior to his decision under s 501BA(2), the Assistant Minister received a submission from the Department of Home Affairs. As I have said, the Assistant Minister made his decision on 26 February 2018 and he signed a decision sheet and a statement of reasons on that day.

11    The challenges to the Assistant Minister’s decision are confined and it is not necessary to do more than provide a general summary of the reasons.

12    In the introductory section of his reasons, the Assistant Minister notes that by reason of s 501BA(3) of the Act, the rules of natural justice do not apply to a decision under s 501BA(2). The Assistant Minister states that this means that Mr Ibrahim had not been advised and given the opportunity to make representations about the possible cancellation of his visa. The Assistant Minister notes that there would be no further occasion for Mr Ibrahim to make representations, there was no merits review of his decision and that the information previously provided by Mr Ibrahim in connection with the decision under s 501CA(4) was likely to be out of date to some extent. I set out the relevant paragraphs in the Assistant Ministers reasons:

10.    Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). This means Mr IBRAHIM has not been advised that consideration was being given to his visa being cancelled and therefore he has not been given any opportunity to make representations regarding the possible cancellation of his visa, including the impact an adverse decision would have on him and third parties.

11.    I am also cognisant that as a consequence of my decision to proceed under s501BA(2) without natural justice to Mr IBRAHIM, there is no revocation power to ameliorate the lack of natural justice in the decision and therefore Mr IBRAHIM will not at any stage be given an opportunity to make representations in relation to my decision.

12.    I have also had regard to the fact that Mr IBRAHIM will not have access to merits review in relation to my decision.

13.    I have carefully weighed these matters against proceeding under s 501BA(2). However in this case, I have decided to proceed, even noting that the exercise of my s501BA(2) power will have real and practical consequences to Mr IBRAHIM and his family, they being third parties. In this instance Mr IBRAHIM’s family includes his three minor Australian citizen children and his girlfriend, Ms Raelene Rowland.

14.    I also note that Mr IBRAHIM made representations in support of the revocation of the cancellation decision and received the assistance of the South Australian Legal Services Commission. Since that time, some two and a half years have elapsed. I note that Mr IBRAHIM’s visa was cancelled by the Assistant Minister in May 2017, he has spent some three months in immigration detention between July and October 2017. Mr IBRAHIM was released into the community following the judgment of the Federal Court of Australia on 13 October 2017. I considered that Mr IBRAHIM’s circumstances are likely to have changed in the intervening timeframe, although the Department holds limited information regarding his personal circumstances.

13    There was no dispute but that Mr Ibrahim did not pass the character test. The Assistant Minister considered the national interest and, in that context, the seriousness of Mr Ibrahim’s criminal conduct and how it was dealt with by the courts, the risk of Mr Ibrahim reoffending and the possible harm to the Australian community were he to do so. The Assistant Minister then turned to consider matters relevant to the exercise of his discretion. For the purpose of this application, a significant matter in that context was a claim by Mr Ibrahim that he faces a risk of harm if he is returned to Nigeria. The Assistant Minister dealt with this matter in the following way:

94.    Mr IBRAHIM is a citizen of Nigeria; and a Christian of the Hausa tribe. Mr IBRAHIM was born in Lagos in southern Nigeria and resided in Lagos before emigrating from Nigeria to Australia and I note that he has advised the Department as recently as 25 July 2017 that his mother, Esther Ibrahim continues to reside In Lagos.

95.    I considered Ms Rutherford’s submission that Mr IBRAHIM’s case warrants an International Treaties Obligations Assessment. 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.

96.    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’.

97.    I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr IBRAHIM for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application.

98.    A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referring of the application for consideration under s501. I am therefore confident that Mr IBRAHIM would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

99.    I have also considered Mr IBRAHIM’s claims of harm upon return to Nigeria outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr IBRAHIM’s claims are such as to engage non-refoulement obligations, Mr IBRAHIM may face hardship arising from his Christian faith were he to return to Nigeria.

14    In expressing his final conclusions, the Assistant Minister again referred to Mr Ibrahim’s claims of harm if he is returned to Nigeria in a way that indicates that the Assistant Minster took them into account in Mr Ibrahim’s favour.

The Grounds of the Application for Judicial Review

15    In his application for judicial review, Mr Ibrahim advances two broad grounds, each supported by a number of particulars. Grounds 2d and 2g are not pursued. The fundamental contention in each of the two grounds is that the Assistant Minister was bound to proceed on a correct understanding of the law and the legal consequences of the decision and that he failed to do so.

16    As developed in written and oral submissions, two errors were alleged under the rubric of Ground 1. The first error was that the Assistant Minister erred in failing to appreciate the difference between an assessment of the facts against the criteria for a protection visa and taking account of, for the purposes of exercising a discretion under s 501BA(2), the risk of harm to a person if he is returned to the country of his nationality. The second error is that it may be inferred that the Assistant Minister failed to understand that even if, on a protection visa application, it is found that Australia owed protection obligations to Mr Ibrahim, the application for such a visa might be refused, having regard to s 36(1B), s 36(1C), or the public interest criteria in cl 4001 of Schedule 4 of the Regulations.

17    Two errors were alleged under the rubric of Ground 2. The first error is that the Assistant Minister misunderstood his power to alleviate or eliminate the disadvantages he acknowledged in proceeding under s 501BA(2) of the Act, particularly in terms of natural justice. The argument was that the Assistant Minister failed to appreciate that he could have provided natural justice in the course of his decision-making process under s 501BA(2), or at least sought updated submissions, and that his misunderstanding in this respect amounted to a jurisdictional error. The second error was that the Assistant Minister’s decision to proceed under s 501BA(2) without according natural justice to Mr Ibrahim, or at least an opportunity to make submissions, was unreasonable within the principles identified by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li).

Authorities

18    In the course of oral submissions, counsel for Mr Ibrahim made it clear that he is not arguing “non-refoulement obligations, risk of harm” is a mandatory relevant consideration in terms of the exercise of the power in s 501BA(2). That is not how he puts the argument. The argument in relation to both Grounds is that the Assistant Minister was bound to proceed on the basis of a correct understanding of the law, but that he failed to do so.

19    Mr Ibrahim referred to a long line of cases which articulate the principle that a decision-maker must proceed by reference to a correct understanding of the law starting with R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430 per Latham CJ. In Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391, Gummow and Hayne JJ said (at [196]):

In the absence of any evidence providing a further explanation of the reasons, or the parts of the reasons, for the respondent making her cancellation decision of 30 June, it is to be taken that she exercised her discretion under s 501(3) to cancel the prosecutor's transitional (permanent) visa on an erroneous footing. This is that, if she did cancel the visa, the legislation required there then to be given to the prosecutor, in terms of par 14 of the minute, “an opportunity to make representations seeking revocation of [that] decision”. The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3). On that footing, prohibition and certiorari properly lay.

20    In Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22, Gageler and Keane JJ said (at [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. …

    (Citation omitted.)

21    Finally, in Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350, the High Court said (at [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.)

22    Both parties referred at some length to the decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 (BCR16). In that case, the Assistant Minister made a decision under s 501CA(4) of the Act not to revoke the cancellation of the appellant’s visa under s 501(3A) of the Act. The appellant had submitted to the Assistant Minister that another reason why the cancellation should be revoked was that he feared that he would be harmed if he was forced to return to his home country. The Assistant Minister did not consider that claim because she considered that whether Australia owed non-refoulement obligations to the appellant could be raised and would be considered were the appellant to make an application for a protection visa and that he was not prevented from making such an application.

23    Bromberg and Mortimer JJ found that the Assistant Minister had proceeded by reference to two “misunderstandings” of the law (at [66]). The first was that she had misunderstood the course of decision-making under the Act with respect to an application for a protection visa and the fact was that such an application may be refused by reference to character criteria without any need to give consideration to Australia’s non-refoulement obligations (at [67]-[69]). Secondly, the Assistant Minister had erred in deciding that the fear of harm identified by the appellant did not extend beyond the scope of Australia’s non-refoulement obligations (at [70]-[73]).

24    It is convenient for me to set out how Bromberg and Mortimer JJ dealt with the second “misunderstanding” because a similar error is said to have been made by the Assistant Minister in this case. Their Honours said (at [70]-[73]):

If contrary to the opinion we have expressed above, there was no misunderstanding by the Assistant Minister of the course any application for a protection visa by the appellant could be likely to take, we would in any event accept the appellant’s alternative submission that an error of the kind identified by Robertson J in Goundar is present in the Assistant Minister’s reasoning process.

Both the briefing note, and the Assistant Minister’s reasons, move immediately to describing the relevant issue as “whether non-refoulement obligations are owed to [the appellant]”. We respectfully agree with Robertson J in Goundar that the harm comprehended by such obligations, whether under the Refugees Convention or under CAT and the ICCPR, does not describe the universe of harm which could be suffered by a person on return to her or his country of nationality. Rather, those international instruments are directed at state parties’ obligations to avoid particular kinds of harm befalling a person who may be returned to her or his country of nationality (and in the case of the Refugees Convention, for particular reasons).

Here, as we have noted several times in these reasons, the appellant did not describe the harm he feared by reference to “non-refoulement”. It may well be the case that the harm he identified was not viewed as having a sufficient likelihood to bring him within either kind of international protection obligations. Or, it may be the nature of the harm he feared was necessarily outside either kind of international protection obligations. The Assistant Minister’s reasons disclose no understanding of those possibilities. Rather, her reasons betray two misunderstandings: first that the appellant was identifying non-refoulement obligations as a concept when he had not; and second that the harm he feared was necessarily within that protected by Australia’s international non-refoulement obligations. Whether or not the harm the appellant feared had a “private quality” as the harm identified in Goundar, there were other reasons it might be harm outside the kind covered by Australia’s international non-refoulement obligations. Nevertheless, the harm as the appellant expressed it was put forward by him as a “reason” the Assistant Minister should revoke the cancellation. She did not consider it. Her failure to do so flowed from the misunderstandings we have identified and is properly characterised as an error of a jurisdictional kind because it went to the lawful discharge of her task.

We reject the Minister’s submission that it is enough to avoid error on the part of the Assistant Minister that there was a “real possibility” the risk of serious or significant harm to the appellant might be addressed during consideration of any protection visa application he made. There are several reasons for this. First, as we have noted above, the kind of harm identified by the appellant was not restricted to harm as that concept is understood in either set of domestic protection obligations, or in either kind of international non-refoulement obligations. Second, as we have noted above, the role of the consideration of whether serious or significant harm might befall the appellant in Lebanon (for Convention or non-Convention related reasons) has a quite different place in a discretionary decision about revocation, to the place it may have, if reached, in a protection visa assessment. In the former, it need not have any particular quality to affect the exercise of discretion – the weight of the prospect of harm is a matter for the Assistant Minister rather than part of any fixed visa criterion. That is in stark contrast to the role these matters play under s 65 of the Act.

25    On 5 September 2017, the Minister gave Direction No 75 under s 499 of the Act. The Direction requires that a decision-maker dealing with an application for a protection visa must consider first, those aspects of the claim relating to refugee status and complementary protection.

26    In Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali), the Assistant Minister had decided under s 501CA(4) not to revoke a cancellation under s 501(3A). The unsuccessful applicant sought judicial review. He argued that the Assistant Minister had made a similar error to that made by the Assistant Minister in the case of BCR 16.

27    Flick J rejected the argument. His Honour noted the existence of Direction No 75 and he rejected the submission that the Assistant Minister had proceeded by reference to an incorrect understanding of the law. By reason of Direction No 75, the applicant’s claims to refugee status or complementary protection or both would be considered and it was on that basis that the Assistant Minister proceeded (emphasis added).

28    It seems that the applicant in Ali put some further arguments as to difficulties that might confront the Minister or Assistant Minister in dealing with an application for a protection visa or other kind of visa. With respect, I find the description of the arguments somewhat difficult to follow. However, Flick J’s conclusion is, with respect, clear. His Honour’s conclusion is expressed in the following passage (at [34]):

Of present concern is the fact that the reasoning process of the Assistant Minister in respect to the decision now under review exposes no misunderstanding as to the power then being exercised. That reasoning process exposes no misunderstanding as to:

•    the sequence in which claims would be resolved in accordance with Direction No 75.

Nor does the reasoning process expose any misunderstanding, or even say anything with respect to:

•    the manner in which any future applications may be resolved or the decisions which may be made by the Minister if called upon to do so.

29    It is unnecessary to address his Honour’s treatment of the second ground of judicial review in Ali.

30    Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene) also involved an application for judicial review of a decision of the Assistant Minister under s 501CA(4) to refuse to revoke a decision to cancel a visa under s 501(3A). The applicant in Greene applied for judicial review and one of the grounds was the Assistant Minister’s failure to take into account a relevant consideration, namely, Australia’s non-refoulement obligations. It seems that a similar submission was put to the Assistant Minister as had been put in Ali and was dealt with by the Assistant Minister in the same way. Upon a similar argument being put to Logan J, his Honour said that he agreed with the approach taken by Flick J in Ali and would follow it (at [19]).

31    In Ibrahim (No 2), White J applied the reasoning in BCR16 which concerned an exercise of the power in s 501CA(4) to an exercise of the power in s 501BA(2). In this case, the Assistant Minister did not suggest that such an approach was in error. In dealing with a submission by the Assistant Minister that it should be inferred that the Assistant Minister had made an assumption as to the manner in which an application for a protection visa, if made, would be dealt with (that the question of non-refoulement obligations would be considered before the other criteria for such a visa), White J said (at [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.

Ground 1

32    In my opinion, the Assistant Minister did not make the first error alleged by Mr Ibrahim. He did not proceed on the basis that the risk of harm to Mr Ibrahim if he is returned to Nigeria was encompassed by, and only encompassed by, refugee status or complementary protection. He considered the risk of harm to Mr Ibrahim if he is returned to Nigeria as one of the discretionary factors and he weighed it in the balance in reaching his conclusions. As he said, he considered it outside the concept of non-refoulement and the international obligations framework (see [99] of the Assistant Minister’s reasons set out at [13] above).

33    The second alleged error raises a matter of greater difficulty. It is said that the Assistant Minister did not understand that even if Mr Ibrahim established that he fell within the criteria for refugee status or complementary protection, an application for a protection visa could be refused by reference to other criteria and, in particular, the public interest criteria in cl 4001 of Schedule 4 of the Regulations. That public interest criteria refers to the character test. Mr Ibrahim went further and submitted that not only could a delegate refuse a protection visa on that basis, but was highly likely to do so in view of a prior decision of the Assistant Minister. Mr Ibrahim called in aid the observations of White J in Ibrahim (No 2) set out above (at [31]) and submitted that I should infer that the Assistant Minister misunderstood the legal position otherwise he would not have made the decision not to determine whether non-refoulement obligations were owed. It is to be noted that the observations of White J were made in a context where there was no Direction No 75 and a protection visa might be refused without any consideration being given to non-refoulement obligations.

34    It is important to bear steadily in mind that the error alleged relates to the Assistant Minister’s understanding of the law. I am not satisfied that in considering that it was unnecessary to determine whether non-refoulement obligations were owed in respect of Mr Ibrahim, the Assistant Minister proceeded on the basis that if, on a protection visa application, Mr Ibrahim established that such obligations arose that he would be granted a protection visa. He certainly proceeded on the basis that whether such obligations arose would be considered and there was a basis for that, having regard to Direction No 75, but I am not satisfied that the further step should be taken. This, as I understand it, is the approach taken by Flick J in Ali (see also Logan J in Greene) and I am not satisfied that that approach is clearly wrong. The second error alleged by Mr Ibrahim is not made out.

35    Ground 1 is rejected.

Ground 2

36    Mr Ibrahim tendered, without objection at the hearing, an affidavit of Ms Raelene Lee Ibrahim affirmed on 15 June 2018. Ms Ibrahim married Mr Ibrahim on 8 January 2018 and she sets out the matters they would have advanced to the Assistant Minister had Mr Ibrahim been given the opportunity to make representations. Those matters included the couple’s plans to have children and an explanation of some of Mr Ibrahim’s criminal conduct.

37    It is convenient to reiterate how the various sections operate in a case such as the present. A visa holder who is serving a full-time sentence of imprisonment and of whom the Minister is satisfied that he or she does not pass the character test because of a defined substantial criminal record, must have his or her visa cancelled and the rules of natural justice do not apply to the decision which is a mandatory one. Upon the making of representations by the person affected by the decision, there is provision for the Minister to revoke the cancellation. Natural justice is provided at this stage and the Minister may revoke the decision if satisfied, inter alia, that there is another reason why the original decision should be revoked. That is clearly a broad basis upon which the decision might be revoked. There is then a further power in the Minister, assuming a delegate or the Administrative Appeals Tribunal made the decision to revoke the cancellation of the visa, to set aside the revocation and cancel the visa if the person affected does not satisfy the character test on certain grounds and the Minister is satisfied that the cancellation is in the national interest. The authorities make it clear that the seriousness of the crime or crimes may of itself be sufficient to engage the power. In the usual case, to the extent a person’s personal circumstances are considered relevant, the Minister could, if he or she wished, have regard to the representations made under s 501CA. Mr Ibrahim pointed out that in his case the Minister did, in fact, have regard to his personal circumstances and that there was a considerable delay between the provision of the information in or about September 2015 in connection with the decision under s 501CA(4) and the Minister’s decision in February 2018 causing the information provided under s 501CA to become out of date.

38    With respect to the first alleged error, Mr Ibrahim’s submissions are as follows. Section 501BA(3) provides that the rules of natural justice do not apply to a decision under s 501BA(2). This means that there is no legal duty on the Minister to comply with the rules of natural justice and a decision made under s 501BA otherwise than in accordance with natural justice is not by reason of that fact invalid. However, s 501BA does not, on its proper construction, mean that the Minister is legally precluded from providing natural justice or, if not that, a hearing which falls short of compliance with the natural justice hearing rule.

39    Mr Ibrahim submitted that the Assistant Minister could have and, in the circumstances, should have, invited Mr Ibrahim to make further submissions before making his decision under s 501BA(2) of the Act. His failure to appreciate that he could do that meant that he did not proceed to make his decision on a correct understanding of the law. In the alternative, if he did appreciate that, or, it is not shown that he failed to proceed with a correct understanding of the law then nevertheless, his decision to proceed without inviting Mr Ibrahim to make further submissions was legally unreasonable. This was a jurisdictional error even if it was not shown that the substantive decision itself was legally unreasonable. As I understood it, Mr Ibrahim did not argue that the substantive decision was legally unreasonable. As I understood the submissions made by Mr Ibrahim, they were that the Assistant Minister’s power to invite him to make further submissions was a discretion the Assistant Minister had in aid of a statutory power, being the power in s 501BA(2).

40    The relevant paragraphs in the Assistant Minister’s reasons are set out above (at [12]). Mr Ibrahim submitted that I should infer from those passages that the Assistant Minister erroneously believed that he could not accord natural justice or call for further submissions. Three matters are relied on. First, the statement by the Assistant Minister in paragraph 10 of his reasons that the fact that the rules of natural justice do not apply to s 501BA(2) means that Mr Ibrahim had not been advised that the matter was being considered by the Assistant Minister and he was not given any opportunity to make submissions. Secondly, it can be seen from the paragraphs which follow that the Assistant Minister clearly recognised the disadvantages to Mr Ibrahim in the way he proposed to proceed. Thirdly, the Assistant Minister recognised that the information he had about Mr Ibrahim’s circumstances was likely to be out of date. The recognition of the imperfections in the material suggests, so it is argued, that if the Assistant Minister thought that he could have done something about it, then he would have.

41    The Assistant Minister’s answers to these submissions started with the proposition that it should not be inferred from his reasons that he misunderstood the law. In addition, or alternatively, the Assistant Minister submitted that he was not bound to consider any power he might have had to invite further submissions and, in those circumstances, whether his understanding of the law was correct or not, there was no jurisdictional error. The Assistant Minister described any power he might have to invite Mr Ibrahim to make further submissions as a capacity, although he submitted that the extent to which that capacity was affected by s 501BA(5) was a “large question”.

42    The nature and extent of any power the Assistant Minister might have to invite further submissions was not the subject of detailed submissions and I was not referred to any authorities directly on point. I am not disposed to think that it is a discretion, as submitted by Mr Ibrahim, as distinct from a course he may choose to take in particular circumstances. Perhaps that is what the Assistant Minister meant when he submitted that it was, at best, a capacity. At all events, I do not think that it was a course that he was bound to consider. In those circumstances, I fail to see how, even if he proceeded on the basis that he was bound not to accord natural justice, that could constitute a jurisdictional error as a constructive failure to exercise jurisdiction.

43    For the sake of completeness, I will address the contentions of the parties as to what inference should be drawn from the Assistant Minister’s reasons. The reasons suggest that he either did not bring any power he had to mind, whether it be a discretion as Mr Ibrahim characterised it or, at best, a capacity as the Assistant Minister characterised it, or he considered he had no power to accord natural justice or to invite Mr Ibrahim to make submissions. For the reasons advanced by Mr Ibrahim and summarised above (at [40]), I am disposed to think that the latter alternative is the conclusion which should be drawn. However, that does not assist Mr Ibrahim for the reason I have given.

44    As to the alternative argument of legal unreasonableness, that is to say, that the Assistant Minister had the power and, in the circumstances, it was legally unreasonable for him to proceed in the way he did, I reject that argument. Whether it be described as a power, capacity or, even as Mr Ibrahim described it, a discretion, it is not founded in the Act and I do not think its non-exercise can be described as legally unreasonable (Li at [29] per French CJ; at [63] per Hayne J, Kiefel J (as her Honour then was) and Bell J; at [89] per Gageler J).

45    Ground 2 is rejected.

Conclusion

46    The application for judicial review dated 19 April 2018 should be dismissed.

Associate:    

Dated:    24 October 2018