FEDERAL COURT OF AUSTRALIA

FRH18 v Minister for Home Affairs [2018] FCA 1769

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 30 April 2018 to cancel the applicant’s Partner (Residence) (Class BS) Subclass 801 visa be quashed.

2.    The respondent pay the applicant’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    The applicant is a citizen of Pakistan who was 20 years old when he arrived in Australia lawfully on a 3-month visa in August 1996. He applied for a protection visa in September 1996 that the Minister’s delegate refused in March 1998. In May 1999, the Refugee Review Tribunal affirmed the delegate’s decision and in March 2000, the Minister declined to exercise his power under s 417 of the Migration Act 1958 (Cth) to substitute a more favourable decision.

2    In July 2001, the applicant married an Australian citizen and they had three children together in 2001, 2003 and 2004. Earlier, he and an ex-partner had a son, who was also an Australian citizen. After July 2003, the applicant remained in Australia unlawfully until early 2008 when he was placed in immigration detention. He again applied to the Minister under s 417. In August 2008, the applicant was released from detention. In August 2009, the then Minister intervened under s 417 and ultimately granted the applicant a bridging visa to enable him to progress with his application for a partner visa. In August 2012, the applicant’s wife died.

3    During his residence in Australia, the applicant had committed numerous criminal offences and had been sentenced to a term of imprisonment of 12 months, so that he had a substantial criminal record, within the meaning of s 501(7) of the Act. Accordingly, it was common ground that he did not pass the character test in s 501(6).

4    On 12 August 2016, a delegate of the Minister conducted an international treaties obligations assessment (ITOA) and found that Australia owed the applicant non-refoulement obligations. That was because the delegate accepted that the applicant was a Christian and had suffered harm in Pakistan between September 1994 and April 1996, due to his involvement with a Christian organisation and the practice of his religion. The harm included threats and being shot at on one occasion. The delegate found, despite January 2016 advice of the Department of Foreign Affairs and Trade (DFAT), recent, credible country information indicated that attacks against Christians in Pakistan had increased in recent years and that a majority of these had occurred in Punjab, whence the applicant hailed. The delegate found that, in Pakistan, effective State protection measures were not available to the applicant as a Christian. The delegate found that Christians were part of a minority of only about 5% of Pakistan’s population who did not identify as Muslims. The delegate also found that it was not reasonable for the applicant to relocate from Punjab were he to return to Pakistan. The delegate found that the applicant met the criteria for him to be considered a refugee and that there was a real chance that he would be subject to significant harm were he to be returned to Pakistan.

5    On 23 September 2016, another delegate decided to exercise the discretion under s 501(1) not to refuse to grant the applicant a Partner (Residence) (Class BS) Subclass 801 visa (the partner visa), and as a result, the applicant was granted the partner visa.

6    However, s 501A(2) gave the Minister, personally, the power to set aside the delegate’s decision under s 501(1) not to refuse to grant the partner visa. And, after considering submissions of the applicant and others, on 30 April 2018, the Minister exercised that power. The Minister cancelled the partner visa on the grounds that he reasonably suspected that the applicant did not pass the character test and was satisfied that it was in the national interest to do so.

Issues

7    The applicant challenged the Minister’s decision to cancel his partner visa on two grounds, namely that the Minister had failed to give proper, genuine and realistic consideration to:

(a)    Australia’s non-refoulement obligations owed to, or in respect of, the applicant; and

(b)    a mandatory relevant consideration for the exercise of his power under s 501A(2), namely, the real possibility that, as a consequence of cancelling the partner visa, the applicant would be held in immigration detention indefinitely.

The legislative scheme

8    The Minister has the following powers that are relevant:

48B    Minister may determine that section 48A does not apply to non-citizen

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

(2)    The power under subsection (1) may only be exercised by the Minister personally.

…

195A    Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

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

…

197AB    Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

…

501A    Refusal or cancellation of visa — setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

…

Action by Minister—natural justice applies

(2)    The Minister may set aside the original decision and:

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

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

if:

(c)   the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)   the person does not satisfy the Minister that the person passes the character test; and

(e)   the Minister is satisfied that the refusal or cancellation is in the national interest. (emphasis added)

…

9    In addition, s 197C provides:

197C    Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen. (emphasis added)

10    Relevantly, s 198(2A) provides that an officer must remove, as soon as reasonably practicable, an unlawful non-citizen if the Minister personally has made a decision to cancel a non-citizen’s visa under, among other provisions, s 501A, and he or she has not made a valid application for a substantive visa that can be granted when he or she is in the migration zone.

The Minister’s decision and reasons

11    On 30 April 2018, the Minister circled the cancellation outcome on the decision page attached to the Departmental submission before him. That outcome stated that the Minister reasonably suspected that the applicant did not pass the character test, the applicant had not satisfied him that he did pass it and that “I am satisfied that it is in the national interest to cancel [the applicant’s] visa” under s 501A(2) for the reasons set out in the attached statement of reasons.

12    The Minister also circled “please discuss” in item 6 of the cover page of the Departmental submission which relevantly read:

As protection obligations are owed to [the applicant], if you decide to cancel his visa, you may consider alternative management options in [the applicant’s] case (which encompass the possibility of granting a visa under s 195A). (emphasis added)

13    Early in his reasons, the Minister discussed the question of whether cancellation of the applicant’s visa was in the national interest. He said that s 501A(2) made clear that this issue was separate and distinct from whether or not the person passed the character test. The Minister said that s 501A did not define the national interest and that the Courts had been reluctant to do so in statutory contexts “but the national interest has been determined to be a different concept to the public interest” ([14]). He referred to what the Full Court had said in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at 352 [86], namely that the Minister had to determine what was or was not in the national interest according to his or her own satisfaction, that had to be attained reasonably, and:

The Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest.

14    The Minister also referred to Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 and to what Gaudron J had said, after referring to that decision, in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 419 [79]. He concluded, by reference to those cases, that matters of national interest included, among other matters, the seriousness of the criminal conduct, having regard to its circumstances, its nature and any judicial “disposition in respect of it”. He continued ([18]):

I also find that matters of national interest include a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated. (emphasis added)

15    The Minister then considered the applicant’s considerable criminal history, in particular from 2008 to 2014, noting that it included violent offences, which he said were viewed “very seriously”, and a sentence of imprisonment. The Minister set out the various circumstances in which the applicant had been convicted and sentenced, including on 11 March 2014 to 12 months imprisonment for driving furiously in a motor vehicle causing bodily harm ([25], [53]).

16    He also noted the applicant’s earlier offences that involved convictions for assault and stalking or intimidating the mother of his partner, with whom, the Minister accepted, the applicant and his partner (while she was alive) had a difficult relationship. In convicting the applicant on those and other charges on 29 January 2013, the magistrate sentenced him to a fine, placed him on a 12 month good behaviour bond and made an apprehended domestic violence order naming the mother and her husband as protected persons ([22]). The Minister concluded that the applicant’s criminal conduct in Australia was serious ([36]).

17    The Minister then turned to consider the risk to the Australian community if the applicant reoffended, noting that this consideration “may assist in founding a satisfaction that it is in the national interest to cancel his visa” ([37]). The Minister discussed the psychiatric report that the magistrate considered when sentencing the applicant on 11 March 2014 and the applicant’s personal circumstances, including his having been sexually abused as a child, having his life threatened by a mob after publishing a religious manuscript in Pakistan when he was about 18, the psychiatrist’s opinion that he had developed post traumatic distress disorder, his drug and alcohol abuse and the terminal illness that led (with similar drug and alcohol abuse by his late wife) to the removal of his children by child protection services and, later, the death of his wife ([39]).

18    Ultimately, the Minister found that the applicant’s “substance abuse and mental health issues have been significant contributing factors in his history of offending, and his grief over the death of his wife is likely to have contributed to the offences he was convicted of on 29 January 2013 and 11 March 2014” (being his last convictions) ([46]).

19    The Minister next considered the applicant’s efforts to rehabilitate himself. He noted that the applicant’s psychiatrist opined in his report of 3 March 2014 that ([47]):

there are good prospects for his future rehabilitation… especially if he addresses his underlying emotional problems, continues to work, and receives the ongoing support of his pastor, friend and AA/NA groups.

20    The Minister considered that the applicant’s rehabilitative efforts from 29 January 2013 to be positive, even though soon after that time he had committed the driving offence in March 2013 (that led to the 11 March 2014 conviction and sentence of imprisonment). The Minister also noted that, while in prison, the applicant had completed drug, alcohol and anger management programs that the Minister accepted were “likely to have assisted him address his substance abuse issues” and to have reduced his risk of offending. He considered that the applicant’s completion of vocational courses in person was “further evidence that he made productive use of his time in prison”. He also noted that following his release from prison, the applicant continued treatment for his mental health issues and that this was also likely to contribute to his rehabilitation ([50]).

21    The Minister also noted that the applicant’s adult son had reconciled with his father since his release from detention and found him a changed man, as had other persons who were close to the applicant and who had written letters in support of him to the Minister.

22    The Minister noted that the applicant had appeared to have abstained from drug and alcohol use for over five years, attended community programs and peer support groups to address the substance abuse and mental health issues that had contributed to his offending behaviour and that his ongoing medical treatment for his mental health conditions was likely to reduce his risk of reoffending. The Minister accepted that the applicant’s positive behaviour in the community since his release from immigration detention on 6 December 2016 “is further evidence of his rehabilitation” ([51]-[64]).

23    However, the Minister observed that the applicant’s substance abuse issues dated from his childhood and that a considerable part of the recent period of abstinence occurred during his imprisonment and detention. The Minister considered that the period that the applicant had spent in the community, in which his rehabilitation had been tested since December 2016, “to be relatively short” ([64]-[65]).

24    The Minister noted that after his release, the applicant had travelled voluntarily to South Australia to face charges under warrants that had been outstanding in that State since 2011, and that the charges then had been dismissed. He accepted that the applicant’s conduct indicated genuine remorse and a willingness to face the consequences of his actions. He found that the applicant had also made arrangements with three government agencies to pay off his outstanding debts and that this insight lessened the likelihood of his re-offending ([72]-[74]).

25    The Minister noted that the applicant had secured full-time employment in April 2017 and that his employer had written a letter of support. In addition the applicant, after residing, for some months after his release, with a supportive couple who were longstanding friends, had found his own secure accommodation and had a stable lifestyle in the community with family and social supports. However, the Minister said that he remained “guarded about the protective effect they will have against him offending in the future” since some (but not all) of these positive factors had existed at the time of the offending ([75]-[80]).

26    The Minister referred to the applicant having been an unlawful non-citizen for four and a half years up to January 2008, his having breached a 12 month bond and a bail undertaking when he committed offences on 22 March 2013 and in 2012, as demonstrating a disregard for the law, indicative of a propensity to reoffend ([81]-[84]).

27    Next, under the heading “Conclusion – Risk”, the Minister said ([86]-[87]):

I could not rule out the possibility that he will reoffend. I find there is an ongoing risk that [the applicant] will continue to engage in criminal conduct, albeit a low risk. If [the applicant] did engage in further criminal conduct of a violent nature, it could cause psychological and/or physical harm to a member of the Australian community.

Conclusion – National Interest

In sum, having regard to the above, including the seriousness of his criminal conduct and the risk to the Australian community, I conclude that it is in the national interest to cancel [the applicant’s] visa. (emphasis added)

28    The Minister next said that he had considered whether to exercise his discretion to cancel the applicant’s visa by weighing factors for and against that outcome. He said that in doing so, he was mindful of Australia’s sovereign right to determine whether non-citizens who “are of character concern are allowed to remain in Australia” ([88]) (emphasis added).

29    He noted that the applicant’s three minor children were, until they turn 18, in the care of his late wife’s mother. That was because the child welfare authorities considered that those children had been at risk when in their parents’ care. The Minister noted that despite his attempts to do so, the applicant had not had, or been able to have, any contact with his children since 2011, and that his former mother-in-law and he were estranged. The Minister considered that the applicant’s removal was likely to cause the children significant hardship if they wished to rebuild a relationship with him in the future and that, treating this factor as a primary consideration, cancellation of the visa was not in their best interests ([97]-[98]). The Minister gave less weight to his finding that cancellation was also not in the best interests of the grandchildren of a woman, who said that, since 2014, she and her family had “adopted” the applicant into their family and his removal would emotionally destroy her grandchildren.

30    The Minister considered Australia’s international non-refoulement obligations in the following passage ([102]-[107]):

International non-refoulement obligations

[The applicant] is a national of Pakistan. [The applicant] has made claims which were assessed in the International Treaties Obligations Assessment of 12 August 2016. [The Applicant] has expressed fears he will be killed, tortured, or otherwise subjected to inhumane treatment in Pakistan due to his Christian faith. He states he is known to be of Christian faith in Pakistan because of his previous involvement with Christian groups and publications.

I accept that my Department has found that [the applicant] is a person in respect of whom Australia has non-refoulement obligations.

I understand that if I decide to cancel [the applicant’s] visa, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa, and that in respect of a Protection visa, he will be prevented by s48A of the Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s48B that s48A does not apply to him).

I am aware that the statutory consequence of a decision to cancel [the applicant’s] visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

I am also mindful that at the time of the insertion of s197C in the Act, the Government indicated that Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198. These mechanisms included the use of the Minister’s personal non-compellable powers in the Act, including the power in s195A under which I may grant a visa to a person who is in immigration detention if I think it is in the public interest to do so. I am aware that the potential for using s195A in order to meet Australia’s international non-refoulement obligations is pertinent to [the applicant’s] case and this potential is encompassed in my consideration of alternative management options in relation to him.

I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [the applicant’s] criminal offending in the making of my decision whether to cancel [the applicant’s] visa. (emphasis added)

31    The Minister then considered the strength, nature and duration of the applicant’s ties to Australia. He found that the applicant’s removal would cause, first, his adult son significant emotional and practical hardship and might exacerbate his mental health issues, and, secondly, members of the applicant’s extended family and social networks would experience sadness, disappointment and practical hardship ([117], [121]).

32    The Minister found that the applicant “has been making a positive contribution to the community for over 20 years through his employment and volunteer activities, and I have taken this into account”.

33    Under the heading “Conclusion”, the Minister said that he had considered all relevant matters including an assessment under the character test, the national interest and “all other evidence available to me”. He found that he was satisfied that the cancellation of the applicant’s visa was in the national interest ([128]). He explained that, in doing so, he had given primary consideration to the best interests of the applicant’s three minor Australian citizen children and found that their best interests would be served by not cancelling the visa and that it was also in the best interests of another person’s grandchildren to whom the applicant was a father figure that the visa not be cancelled ([129]).

34    The Minister then found that the Australian community could be exposed to significant harm should the applicant reoffend in a similar fashion and commit further violent crimes. He said ([132]-[135]):

I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm.

I found the above consideration outweighed the countervailing considerations in [the applicant’s] case, including the best interests of the affected children treated as a primary consideration [sic], non-refoulement obligations. I have also considered the significant period of time [the applicant] has made a positive contribution to the Australian community and the hardship to be endured by his family, in particular his adult son…and other family members…and his network of friends and associates in the church and wider community.

I am cognisant that where harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would because he has lived in Australia for most of his adult life.

I find that the considerations favouring non-cancellation, in particular the best interests of the affected children treated as a primary consideration, and [the applicant’s] ties to Australia and the hardship on him and his family members, are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to cancel [the applicant’s] Partner (Residence)(Class BS) Subclass 801 visa under s501A(2) of the Act. (emphasis added)

The Minister’s submissions

35    The Minister argued that both grounds of review concerned the erroneous proposition that he, in fact, had failed to give proper, genuine and realistic consideration of the applicant’s case in relation to Australia’s non-refoulement obligations or the likelihood of indefinite detention. As to the non-refoulement issue, the Minister contended that he had addressed the question sufficiently in [104]-[107] of his reasons. He submitted that there were distinct phases in administrative decision-making about the applicant’s future and that, as contemplated in [106], it was legitimate to defer consideration of how Australia’s non-refoulement obligations could be dealt with to a later phase, following the visa cancellation, being the phase in which the Minister would consider the “alternative management options in relation to [the applicant]”. He relied on what Griffiths J had said in DOB18 v Minister for Home Affairs [2018] FCA 1523 at [31] about the need to pay regard to the particular stages of decision making with which the Minister is engaged, and that it was open to the Minister to leave for later decision the way in which to deal with non-refoulement.

36    The Minister also argued that because the power under s 501A(2) was personal to him, as Minister, and it conferred a wide discretion to decide what is in the national interest, it was not appropriate to seek to discern some unstated requirement that he had to consider specific factors that were personal to the visa holder. He relied on the decision Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 606-607 [125]-[129] per Heydon and Crennan JJ, with whom Gleeson CJ at 571[1] and Gummow and Hayne JJ at 582-583 [39]-[41] relevantly agreed.

37    The Minister’s written submissions also asserted that, because he had stated that he would subsequently deal with non-refoulement in considering “alternative management options”, he “had not closed his mind to taking some other decision under a different provision in the future in order to give effect to Australia’s non-refoulement obligations”. And, he contended, in respect of both grounds of review, that while consideration of those options remained pending, there was no immediate obligation to remove the applicant, contrary to what Moshinsky J had held in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944. On that premise, he submitted that his decision to cancel the visa under s 501A(2) “had no direct or immediate consequence on Australia’s non-refoulement obligations” and so they did not have to be taken into account at the time of the cancellation decision.

38    To the extent that Moshinsky J came to a different decision, that could not be distinguished on the facts before me, the Minister argued that his Honour’s decision was “plainly wrong” and so could not be followed.

Consideration

39    I am of opinion that the authorities that have discussed the nature of the Minister’s discretion under s 501(2) and (3) and the construction of those provisions are of considerable assistance in construing s 501A(2). Of course, the discretion in s 501(2) is wider because it does not require (unlike ss 501(3)(d) and 501A(2)(e)) that a condition for its exercise is that the Minister be satisfied that cancellation is in the national interest.

40    Ordinarily, where a statute confers a discretion, which is in its terms unconfined, a decision-maker is, similarly, not confined in the factors which he, she or it may take into account in exercising the discretion except to the extent that the subject-matter, scope and purpose of the statute may imply some limitation on the factors to which the decision-maker lawfully may have regard: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 per Mason J. And, as his Honour explained, analogously, the subject-matter, scope and purpose of the statute can also give rise to an implication that the decision-maker is bound to take into account a particular factor when exercising the discretion.

41    The criterion prescribed by s 501A(2)(e), 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]. The Minister must give his reasons for a decision to cancel a visa under s 501A(2) to the person affected (s 501G(1)(e)).

42    Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ explained the operation of s 501(3), which conferred a similar power of cancellation to that in s 501A(2), 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)

43    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].

44    In considering whether to exercise his discretion to cancel the applicant’s visa under s 501(2), the Minister had an obligation to take into account the legal consequences of his decision by reason of his knowledge that Australia had currently existing non-refoulement obligations in respect of him: cf: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at 6 [17] per Allsop CJ and Katzmann J and see too at 39 [177] per Buchanan J; Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 at 66 [46], 70-71 [60]-[61] per Allsop CJ, Griffiths and Wigney JJ. In addition, as the Full Court explained in Le 244 FCR at 70 [60], if at the time that the Minister is considering the exercise of personal powers under s 501(2), there is any material before him or her relevant as to the likelihood of exercising another power personal to the Minister in relation to the non-citizen under provisions such as ss 48B, 195A or 197AB, he or she must also take that material into account. That is because, if the Minister cancels a visa under s 501(2), and Australia currently has non-refoulement obligations in respect of the holder of that visa, the effect of s 197C is that those obligations are irrelevant to the duty of officers to remove the person, as an unlawful non-citizen, from Australia as soon as reasonably practicable. As Allsop CJ, Griffths and Wigney JJ said in Le 244 FCR at 70 [60]: “Necessarily, therefore, to the extent that that issue is material it must be addressed at an earlier stage in the decision-making process”. Their Honours explained (244 FCR at 60-71 [61]):

All these factors have a bearing upon the issue whether Australia’s non-refoulement obligations and the prospect of indefinite detention are mandatory considerations at the time when consideration is being given to the exercise of the powers in s 501(1) or s 501(2). Given the inherent complexity of the matter, it would be unwise to be overly prescriptive in summarising the relevant legal principles, however, the Full Court decisions referred to above support the following non-exhaustive summary of some of the relevant principles:

(a) in determining whether or not to exercise the powers in s 501(1) or s 501(2) of the Migration Act, the decision-maker must take into account the legal consequences of the decision made under either of those provisions;

(b) those legal consequences may include the prospect of the affected person being held in indefinite detention because of the operation of ss 189, 196 and 198 of the Migration Act;

(c) the test is whether, on the basis of all the material which is before the decision-maker at the time of considering whether or not to exercise the powers in s 501(1) or s 501(2), there is at least a real possibility that the person’s removal from Australia would not be reasonably practicable with the consequence that the person faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Migration Act;

(d) the factual circumstances which can give rise to the prospect of indefinite detention can vary considerably — for example, that real possibility may exist because Australia owes the person protection obligations and there is no other country to which the person can be removed consistently with Australia’s non-refoulement obligations. Or there may be some other reason which is personal to the individual concerned as to why that real possibility exists, such as the state of the person’s health, which affects the duty under s 198(6) to remove the person as soon as reasonably practicable;

(e) in determining whether or not to exercise the powers in s 501(1) or s 501(2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused;

(f) this position is generally unaffected by the presence in the Migration Act of various provisions which confer personal powers on the Minister to “lift the bar” (such as s 48B) or to grant a visa to a detainee which would have the effect of changing the detainee’s status from being an unlawful non-citizen (such as s 195A). There is no legal duty on the Minister to consider whether to exercise such a personal power, whether he or she is requested to do so by any person or in any other circumstances (see, for example, ss 48B(6) and 195A(4)). Hence there is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia’s non-refoulement obligations or the prospect of indefinite detention. This difficulty may be overcome in a case where, at the time consideration is being given to the exercise of the powers under s 501(1) or s 501(2), there is some material which indicates the real possibility of the Minister exercising his or her personal powers in favour of the affected person; and

(g) the position is also different where, in a case such as NBMZ or NBNB [v Minister for Immigration and Border Protection (2014) 220 FCR 44], the person whose visa application has been refused or whose visa has been cancelled under s 501(1) or s 501(2) respectively is prevented by the Migration Act from applying in Australia for a protection visa. In such a case, the Minister’s obligation to consider the legal consequences of a decision in the circumstances under either of those provisions will include consideration of Australia’s non-refoulement obligations and the prospect of indefinite detention, where those matters are relevant to the person’s particular circumstances. (emphasis added)

45    Although their Honours discussed this issue using the expression “mandatory consideration”, they did not do so because the Migration Act made it obligatory for the Minister to have regard to the most recent known material relevant to whether there was a likelihood of the visa holder becoming subject to indefinite detention or refoulement if the visa were revoked. Rather, the Minister’s obligation to have regard to these matters arose because this consequence was the most up to date material before him relevant to his consideration of the detriment to the applicant from the exercise of his power to cancel the visa under s 501(2): Peko-Wallsend 162 CLR at 44-45 per Mason J with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue; which I applied in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571-574 [27]-[42] in a manner approved by Kenny, Griffiths and Mortimer JJ in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 452-453 [75]-[77]; and see too S156/2013 254 CLR at 46-47 [39]-[43] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.

46    I am of opinion that the above considerations also apply to s 501A(2). The nature of the issues relevant to the Minister exercising his or her personal power under ss 501(1), (2), or (3) or 501A(2) to cancel a visa and the consequences for the individual concerned are materially similar, save that in the cases of ss 501(3) and 501A(2), the Minister must also be satisfied that the cancellation is in the national interest.

47    I reject the Minister’s argument that the majority decision in Nystrom 228 CLR 566 was that the Minister did not have to consider factors personal to the visa holder when exercising his or her power to cancel a visa under s 501(2) or, as the Minister’s submission went, under s 501A(2). The position in 2006 when Nystrom 228 CLR 566 was decided was different because s 197C had not been enacted. (The endnotes to the Act state, accurately if curiously, the history of s 197C, namely that a section so numbered was inserted and repealed by Act No 85 of 2001 (the Migration Legislation Amendment (Immigration Detainees) Act 2001 (Cth)) and later the present s 197C was inserted by Act No 135 of 2014 (the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)). The 2001 amendment temporarily applied Ch 2 of the Criminal Code in the Criminal Code Act 1995 (Cth) to all offences against the Division in the Migration Act in which the previous s 197C was. The current s 197C was inserted into the Act only in 2014).

48    The issue in Nystrom 228 CLR 566 concerned whether, in cancelling a visa under s 501(2) of the Act as it was at that time, the Minister had also to consider the consequence of the automatic cancellation, by force of s 501F, of any other visa that the person held. As Gummow and Hayne JJ (228 CLR at 583 [41]) and Heydon and Crennan JJ (at 605-606 [124]-[125]) held, the primary purpose of s 501F was to ensure that a person who failed the character test was liable to be removed from Australia notwithstanding any other visa that he or she may have held concurrently with the visa cancelled under s 501(2).

49    In the applicant’s case, the Minister’s reasons revealed what he understood that he was deciding and why he had decided to delay considering how Australia’s non-refoulement obligations could be addressed. However wide the scope of the Minister’s discretion to consider what is in the national interest, the question whether to make a decision that would have the prima facie effect of putting Australia in breach of its non-refoulement obligations owed in public law to other nations party to treaties with Australia whence those obligations derive, suggests that this factor must be considered (and not put to one side) by the Minister in exercising the power under s 501A(2) (cf: Graham 347 ALR at 363-364 [57], [59]).

50    Moreover, the presence of s 197C made it necessary for the Minister to consider the existence and impact of Australia’s non-refoulement obligations in relation to the applicant at the time the Minister was considering the cancellation of the applicant’s visa under s 501A(2). The Minister was bound to have regard to Australia’s non-refoulement obligations because of the subject-matter, scope and purpose of the discretion that s 501A(2) confers on the Minister to cancel a visa. That is because, if the decision is adverse for the visa holder, the exercise of the discretion will cause that person detriment. The Minister was bound to evaluate the existing non-refoulement obligations reasonably in deciding whether to cancel the applicant’s partner visa, including if it would be possible to meet those obligations in the way he suggested in [106] of his reasons, in light of a finding that any risk of the applicant reoffending required the cancellation of his visa.

51    No reasonable person in the Minister’s position could have found any potential for using his discretion to grant another visa under s 195A or his other non-compellable powers as an “alternative management option” to meet Australia’s non-refoulement obligations would remain available to him if, as he found, the national interest required cancellation of the partner visa because of the risk of a mere possibility that the applicant would reoffend: Graham 347 ALR at 363-364 [57], [59].

52    As the Minister’s reasons demonstrated at [86], [132] and [134]-[135], he regarded as determinative, the existence of the likelihood, however remote, of the applicant reoffending if the visa were not cancelled. He found (at [132]) that “I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm” (emphasis added). Although the Minister asserted that he had considered Australia’s non-refoulement obligations in respect of the applicant (at [133]) he found that these, and other factors favouring the status quo, did not outweigh the national interest considerations based on the risk that the applicant posed to the Australian community by the mere possibility that he might reoffend if the visa were not cancelled. The “consideration” in [106] was perfunctory and not carried out with any reasoning or analysis, given the Minister’s conclusion about the applicant’s risk of reoffending.

53    It is as clear as burning daylight that the Minister had closed his mind to the possibility of granting the applicant a visa in the future, or at least within any reasonable time after he cancelled the partner visa. That is because the Minister’s reasons explained pellucidly that the mere possibility, however low the risk, that the applicant would reoffend was unacceptable and necessitated the cancellation of the visa (see eg at [86], [132] and [134]). In that context, the Minister’s assertion of his awareness of “the potential for using s 195A in order to meet Australia’s non-refoulement obligations is pertinent to [the applicant’s] case and this potential is encompassed in my consideration of alternative management options” (at [106]) was a man of straw.

54    A person’s immigration detention will be lawful while the Minister considers whether he or she will exercise a non-compellable power, such as are found in ss 48B, 195A and 197AB: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 205 [76]-[78] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ applying Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 353 [76]-[77]. There, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said (at [77]):

The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised. (emphasis added)

55    Section 197C precludes an officer from having regard to Australia’s non-refoulement obligations in complying with his or her duty to remove an unlawful non-citizen (as the applicant would become were the Minister to cancel his visa) as soon as reasonably practicable in accordance with s 198(2A). Thus, the only basis open to the Minister to meet Australia’s non-refoulement obligations would be for him to grant the applicant a new visa or make a residence determination despite the continued existence of the risk of reoffending that was determinative in the exercise of the cancellation power under s 501A(2).

56    A decision-maker exercising a statutory power that may adversely affect a person’s legal rights or interests, and in particular, an individual’s life or liberty, ordinarily (unless the statute provides otherwise) must give proper, genuine and realistic consideration to the merits of the case: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174-176 [26]-[30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

57    Once the Minister cancelled the applicant’s visa, s 197C would entail that the applicant be removed to Pakistan as soon as reasonably practicable. That removal would occur unless the Minister continued the applicant’s detention solely for the purpose of considering the exercise of his non-compellable powers to grant other visas or to make a residence determination under ss 48B, 195A or 197AB. All of those powers could only be exercised if the Minister found that it was in the public interest to do so. The Minister had already concluded that any possibility or risk of the applicant reoffending meant that he could not be permitted to be at liberty in the community on his existing visa. It follows there was no likelihood that the Minister would use the “alternative management options” to grant a visa to, or make a residence determination for, the applicant.

58    The Minister stated in [106] that, after cancellation of the partner visa, he still would have “alternative management options in relation to” the applicant. However, that statement could not amount to proper, genuine or realistic consideration of whether it would be in the national interest to exercise the power in s 501A(2) to cancel the applicant’s visa. Because the Minister had formed the view that the possibility of the applicant reoffending in the future was unacceptable, the grant of another visa or residence determination was out of the question because the risk of the applicant reoffending would be unchanged. Accordingly, any future “consideration” of the exercise of the Minister’s personal non-compellable powers to grant another visa or make a residence determination would necessarily result in a negative decision. Once that occurred, ss 197C and 198(2A) would entail the applicant’s removal from Australia as soon as reasonably practicable. Nor could the Minister continue to hold the applicant in immigration detention in the hope that the reason (the real change of persecution of Christians in the applicant’s situation in Pakistan) for existence of the non-refoulement obligations might cease to exist at some indefinite further time: M61/2010E 243 CLR at 353 [76]-[77].

59    In the present context, once the Minister decides to cancel a visa under s 501A(2), s 197C makes irrelevant the existence of non-refoulement obligations to the duty of an officer to remove the person from Australia. Accordingly, having regard to the subject-matter, scope and purpose of the Act, a decision to cancel under s 501A(2) may cause Australia to be in breach of its international non-refoulement obligations under treaties that this country has entered into so as to make it necessary to take this into account as a relevant consideration in the determination of what is or is not in the national interest.

60    I agree with the analysis of Moshinsky J in AQM18 [2018] FCA 944 at [80]-[89] that, in a similar case to this, the Minister, in substance, had misunderstood, and therefore failed to take into account the legal consequences of his decision. That was because he had not considered how, in light of the cancellation of the visa and ss 197C and 198, any “alternative management option” could lead to an outcome other than refoulement by force of ss 197C and 198: see too DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at 581 [26]. In the applicant’s case here, after cancelling the visa the Minister circled that he wished to discuss the alternative management options. This reinforces the conclusion that the Minister did not think through, indeed even consider, how, if at all, these could be engaged to enable Australia to comply with its international non-refoulement obligations.

Conclusion

61    For the reasons above, I am of opinion that the applicant has established the first ground of review. The second ground is, perhaps, best understood as a corollary of the first on the supposition that the Minister had power to hold the applicant in immigration detention indefinitely. He does not have such a power as ss 197C and 198(2A) make clear: DMH16 253 FCR at 581 [26].

62    The Minister’s decision must be quashed with costs.

Associate:

Dated:    16 November 2018