FEDERAL COURT OF AUSTRALIA

Burgess v Assistant Minister for Home Affairs [2019] FCA 34

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review 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 proceeding began as an application for an order to show cause in the High Court of Australia (High Court Rules 2004 (Cth), r 20.01 and Pt 25). On 6 April 2018, the High Court exercised the power in s 44 of the Judiciary Act 1903 (Cth) to remit the action to this Court. The plaintiff seeks judicial review of a decision made by the Assistant Minister for Home Affairs (Assistant Minister) on 13 February 2018 cancelling the plaintiff’s class BF Transitional (Permanent) visa under s 501(3) of the Migration Act 1958 (Cth) (the Act). For the purposes of 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).

2    The plaintiff is a national of the United Kingdom. His visa has been cancelled on three occasions. On 3 June 2016, the Minister for Immigration and Border Protection (the Minister) cancelled the plaintiff’s visa under s 501(3) of the Act. The plaintiff issued proceedings in this Court seeking judicial review of that decision. On 16 September 2016, this Court made orders by consent quashing the decision. On the same day, the Minister made a second decision to cancel the plaintiff’s visa under s 501(3) of the Act. The plaintiff again issued a proceeding in this Court seeking judicial review of the Minister’s decision. On 12 February 2018, this Court quashed the Minister’s decision made on 16 September 2016 (Burgess v Minister for Immigration and Border Protection [2018] FCA 69). The Assistant Minister then made the decision which is the subject matter of this proceeding.

3    At the time it was issued, the application contained six grounds of judicial review. Ground 1 has been dismissed. I will address the grounds of review by reference to their original numbering. The bulk of the oral submissions were directed to Grounds 2, 3 and 4 which, broadly speaking, relate to the Assistant Minister’s “decision” to proceed under s 501(3) rather than s 501(2) of the Act. With respect to Ground 5, the plaintiff did not address the matter in his oral submissions, but relied on his written submissions. That ground relates to the accuracy of a statement of fact which appeared in the submission provided to the Assistant Minister. The plaintiff formally pressed Ground 6. That ground involves a challenge to the Assistant Minister’s decision as to the national interest. The plaintiff accepts that, as the law presently stands, this ground cannot succeed.

The Evidence

4    The evidence on the application consists of a court book comprising three volumes, an affidavit sworn by the plaintiff on 28 August 2018, and an affidavit of Ms Jennifer Anne Green affirmed on 20 September 2018. I will deal with the evidence first.

5    Ground 5 of the application is that the Assistant Minister’s decision to cancel the plaintiff’s visa was affected by jurisdictional error because the decision was unreasonable or, in the alternative, one in respect of which the decision-maker had failed to take into account a relevant consideration. These matters were said to result from the fact that the Assistant Minister had acted on incorrect statements to the effect that the plaintiff was “currently in the community” following the decision of the Federal Court of Australia on 12 February 2018, and that he was “released from immigration detention” on Christmas Island. As developed in the plaintiff’s written submissions, the complaint seemed to be more along the lines that the Assistant Minister had made an error of finding a fact for which there was no evidence.

6    The incorrect statements were said to have been made in the submission provided to the Assistant Minister.

7    The evidence of the plaintiff was designed to show that the statements in the submission were incorrect. The evidence of Ms Green, who at the relevant time was the superintendent for the Christmas Island Immigration Detention Centre (CI IDC), was adduced by the Minister in order to establish that the statements were not incorrect. Neither witness was cross-examined.

8    The plaintiff states that he was detained at the CI IDC from 21 April 2017 to 1 August 2018. On 12 February 2018, he received a telephone call from his fiancée who advised him that the second visa cancellation had been overturned by the Court. The plaintiff was then called into a meeting by officers at the CI IDC. He was advised that his visa had been reinstated and that he was free to leave the detention centre. He was advised that there was no departing flight off Christmas Island until the following day at around 2 pm. The plaintiff knew that flights only departed Christmas Island on Tuesdays and Thursdays as these were the days that other detainees would leave the detention centre. The plaintiff was advised that he could stay at a hotel overnight, but that he would not be given a telephone or any money. The plaintiff did not have any money in the detention centre. He did not understand that the Department for Home Affairs (the Department) would be paying for hotel accommodation. The plaintiff was advised that the other option was for him to agree to remain at the detention centre overnight on a voluntary basis. The plaintiff said that he wanted to talk to his family so he told the person to whom he was speaking that he wished to remain at the detention centre. The plaintiff states that he had no other way of arranging a flight to the mainland from Christmas Island. He was provided with a form to sign, but he was not given a copy of the form at the time. The form which the plaintiff signed contained an acknowledgement by the plaintiff that his visa had been reinstated and that from that point he had ceased to be in immigration detention. The plaintiff also acknowledged that he continued to reside in the detention centre in order to facilitate transportation logistics. The form also contained the following acknowledgements:

1.    my continued residence at NWPIDC, which is an immigration detention facility, is for the above reasons and I am consenting to this continued residence.

2.    while I reside at NWPIDC, I will not be in immigration detention.

3.    I am free to leave and re-enter NWPIDC at any time subject to arrangements necessary to ensure my safety and the safety of others.

…

7.    I can withdraw this consent at any time, recognising however, that if I do so, I must make alternative arrangements for my accommodation and care in the community.

…

9.    DIPB consents to my remaining at NWPIC until 13 February 2018 after which I must make alternative arrangements for my accommodation and care in the community.

9    The plaintiff states that in terms of his accommodation, food and all other arrangements, they were the same as any other day in the detention centre and he was treated like any other detainee.

10    The following day, the plaintiff wished to leave the detention centre and explore Christmas Island for a few hours before his flight. He was advised by a Serco officer at the detention centre that he could not leave as there were no cars available to take him anywhere.

11    The plaintiff states that there was a van which travelled past the detention centre on a regular basis that was able to pick up passengers. The plaintiff states that he believed the officers did not want him to leave and he saw no point in arguing with them. During the course of the morning of 13 February 2018, the plaintiff was told that his flight would be departing at 2 pm approximately. Later that morning he was asked to attend a meeting at which he was advised that his visa had been re-cancelled.

12    Ms Green states that in her experience as a departmental officer on Christmas Island, in cases where a person’s status changes from being an unlawful non-citizen to a lawful non-citizen as a result of a court decision, the person needs to agree to abide by the rules and procedures at the CI IDC while he or she elects to remain there. Otherwise, the person would need to leave the detention centre. Any change in the status of a person as a result of a court decision quashing a cancellation decision would be recorded as such on one of the Department’s record management systems. Ms Green has made inquiries about the alleged conversation the plaintiff had with the Serco officer during the morning of 13 February 2018. She has not been able to identify the person with whom the plaintiff is alleged to have had the conversation. Ms Green states that the CI IDC is located near the far west coast of Christmas Island and is surrounded by many acres of uninhabited scrub and the ocean. The town centre, Flying Fish Cove, is located approximately 13 km from the CI IDC. There is no town between the CI IDC and Flying Fish Cove. Ms Green states that given the location of the CI IDC on Christmas Island, transport would have been required for the plaintiff to travel to any shops or facilities on Christmas Island. Ms Green states that there is no van that passes the detention centre on a regular basis. She states that Serco vehicles are used for pre-planned escorts, such as taking a detainee to a hospital appointment, or to transport detainees for excursions, or to the airport for transfers to the mainland. These transport activities are planned in advance and are facilitated by Serco transport and escort staff. They are not like a “bus service” or something similar. Ms Green said that notification of flight details usually takes place on the day of departure and that, in the usual course, the person will be taken to the property area at the appropriate time prior to being transported to the airport for his or her flight.

The Assistant Minister’s Decision

13    As I have said, the Assistant Minister was given a submission which contained a number of attachments. The decision itself was in the following terms:

(d)    I reasonably suspect that Paul William BURGESS does not pass the character test and I am satisfied that cancellation of Paul William BURGESS’ Class BF Transitional (Permanent) visa is in the national interest. I have decided to exercise my discretion under s501(3) of the Act to cancel Paul William BURGESS’ visa. I hereby cancel Paul William BURGESS’ Class BF Transitional (Permanent) visa. My reasons for this decision are set out in the attached Statement of Reasons.

14    Paragraphs 4 to 10 in the Assistant Minister’s statement of reasons are as follows:

4.    Section 501(3)(b) of the Act enables me to, without natural justice, cancel a visa that has been granted to a person if:

-    I reasonably suspect that the person does not pass the character test (as defined by s501(6)); and

-    I am satisfied that the cancellation is in the national interest.

5.    Under s501(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 s501(3).

6.    Pursuant to s501C(3), following a decision under s501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be notified of the decision and given information relevant to it (other than “non-disclosable information”) and, except in a case where the person is not entitled to make representations, invited to make representations about possible revocation of the decision. Under s501C(4), if, and only if, the person makes representations in accordance with the invitation and satisfies me that they pass the character test, may I revoke the cancellation decision.

7.    I note that any representations made by Mr BURGESS in response to an invitation under s50lC at the revocation stage can bear only on the question of whether or not he passes the character test not on the exercise of my residual discretion under s501(3).

8.    I am cognisant of the fact that because Mr BURGESS has been sentenced to a term of imprisonment of 12 months or more and therefore objectively fails the character test by virtue of s501(6)(a) and s501(7)(c), it would be futile for him to seek revocation under s501C(4) as he cannot satisfy me that he passes the character test.

9.    I note that I could have instead elected to consider Mr BURGESS’ visa cancellation under s501(2) of the Act, with natural justice, and that under that provision the person is provided with a Notice of Intention to Consider Cancellation and given 28 days in which to respond to the notice. Under that process the person is afforded an opportunity to provide the Department with information pertaining to their circumstances and to respond to any adverse information, before a decision is made.

10.    However, I decided to proceed to make a decision in Mr BURGESS’ case under s501(3), without natural justice.

15    The Assistant Minister then turns to consider whether he reasonably suspects that the plaintiff does not pass the character test. He notes that on 22 December 2003, the plaintiff was convicted in the District Court of South Australia of the offences of robbery in company and common assault on person other than family member, for which he was sentenced to 15 months imprisonment. The Assistant Minister states that as a result of this sentence of imprisonment, he reasonably suspects that the plaintiff does not pass the character test on account of his substantial criminal record by virtue of s 501(6)(a) of the Act with reference to s 501(7)(c) of the Act. There is no issue or ground of review with respect to this conclusion.

16    The Assistant Minister then turns to consider the national interest and, in that respect, he considers the seriousness of the criminal conduct, prior warnings, and the risk to the Australian community. The Assistant Minister then reaches the following conclusions (at [90]–[91]):

90.    Overall, I find that there is an ongoing likelihood that Mr BURGESS will continue to engage in criminal conduct and, given his past serious offending particularly that involving violence, that if he were to commit further violent offences members of the community would be placed at risk of physical and/or psychological harm.

91.    In sum, having regard to the above, including his criminal history, the ongoing likelihood of re­offending and the risk to the Australian community, I conclude that it is in the national interest to cancel Mr BURGESS’ visa.

17    The Assistant Minister then turns to consider other considerations. I do not need to address how he dealt with these matters. The Assistant Minister concludes that the considerations favouring non-cancellation are outweighed by the national interest considerations.

The Legislative Provisions

18    Section 501(3) of the Act provides as follows:

(3)    The Minister may:

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

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

  if:

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

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

19    Subsection (4) provides that the power under subsection (3) may only be exercised by the Minister personally, and subsection (5) provides that 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 subsection (3A).

20    Section 501C(3) provides that in the case of a decision under, inter alia, s 501(3), the Minister must, as soon as practicable after making the original decision, give the person a written notice that sets out the original decision and particulars of the reason or part of the reason for making the original decision and information the Minister considers is specifically about the person or another person and is not just about a class of persons about which the person or other person is a member. The Minister must invite the person to make representations to the Minister about revocation of the original decision. Subsection (4) provides that the Minister may revoke the decision if the person makes representations in accordance with the invitation and satisfies the Minister that the person passes the character test as defined by s 501. The plaintiff in this case could not satisfy the Minister that he passed the character test.

21    Section 501G provides, inter alia, that the cancellation of a visa made under certain subsections and sections engages an obligation on the part of the Minister to give the person, the subject of the cancellation, written notice setting out the decision, the provision under which the decision was made and the effect of that provision, and reasons for the decision. Section 501(3) is not one of the subsections subject to the requirements in s 501G.

22    By contrast with a decision under s 501(3), a decision under s 501(2) does not need to be made by the Minister personally, the decision is subject to the rules of natural justice and the obligation to give reasons under s 501G, and the decision is subject to review.

Ground 2

23    After setting out particulars relating to the history of prior cancellations and the cancellation on 12 February 2018, Ground 2 provides:

h.    at some point after the making of the order by the Federal Court of Australia, materials were provided to the first defendant requesting that he consider cancelling the plaintiff’s visa;

 i.    in considering those materials, the first defendant correctly recognised that:

i.    he was empowered to consider cancelling the plaintiff’s visa under each of ss 501(2) and 501(3) of the Migration Act; and

ii.    had he elected to consider cancellation under s 501(2) of the Migration Act, the plaintiff would be afforded an opportunity to provide the first defendant with information and to respond to adverse information, before a decision was made;

iii.    an effect of electing to make a decision under s 501(3) was that the plaintiff could apply for revocation of that decision but that, since the plaintiff could not satisfy the first defendant that he passed the character test, any such application would be futile;

j.    the first defendant decided to proceed to make a decision under s 501(3) of the Migration Act, “without natural justice”;

k.    the materials before the first defendant at the time that he decided to proceed to make a decision under s 501(3) of the Migration Act, “without natural justice”, did not identify any reason why he should proceed to consider cancellation under s 501(3) rather than s 501(2), and identified no considerations in relation to whether to proceed under s 501(3) rather than under s 501(2); and

l.    the decision to consider cancelling the visa pursuant to s 501(3) rather than s 501(2) was made arbitrarily, capriciously and/or for no reason (or, in the alternative, for no permissible reason) and/or was unreasonable and/or was not reached by reasoning which is intelligible.

24    The essence of Ground 2 in the application for judicial review is that the Assistant Minister’s decision to cancel the plaintiff’s visa was affected by jurisdictional error in that he identified no reason why he should proceed to consider cancellation under s 501(3) rather than s 501(2), and identified no considerations in relation to whether to proceed under s 501(3) rather than s 501(2) and, as a result, the decision cancelling the plaintiff’s visa pursuant to s 501(3) rather than s 501(2) was made arbitrarily, capriciously and/or for no reason (or, in the alternative, for no permissible reason) and/or was unreasonable and/or was not reached by reasoning which is intelligible.

25    The plaintiff referred to paragraph 10 of the Assistant Minister’s reasons and the fact that he does not identify any reasons for the conclusion. He submitted that, although the Assistant Minister was not obliged to provide reasons for his decision, the fact is that he has done so and, in those circumstances, it is open to the Court to draw inferences about what the Assistant Minister considered material to his decision and what he did not consider at all. In this respect, the plaintiff relied on the decision in Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [68]–[72] and, in particular, the following statement at [72]:

The fact that a statement of reasons for a decision is provided voluntarily, rather than pursuant to an obligation, cannot prevent a Court drawing inferences about what the Minister considered material to his decision and what he did not consider at all: Assistant Treasurer v Cathay Pacific Airways Limited [2009] FCAFC 105; 179 FCR 323 at [51]. The nature of the statement of reasons may, of course, affect the confidence with which an inference can be drawn. In the present case, however, the Minister has provided a document to the affected visa holder that the Minister described as a “statement of reasons for cancellation of visa under s 501(3)(b) of the Migration Act”. Reference to the contents of the document confirms the accuracy of this description. The document gave a fulsome and apparently exhaustive account of the matters that the Minister considered relevant to his cancellation decision. Whether or not the statement of reasons was given voluntarily does not prevent the Court from inferring in Mr Taulahi’s case that the Minister did not advert to the proper operation of s 501C. Plaintiff M64/2015 at [25] does not assist the Minister’s case at this point, because the document at issue in that case did not purport to be a statement of reasons that exhaustively explained the decision that had been made.

26    In this case, the statement of reasons consists of 165 paragraphs and, on the face of it, is very thorough.

27    The plaintiff submits that the Assistant Minister made what the plaintiff described in the course of his submissions as an “anterior decision” to proceed under s 501(3) rather than s 501(2) prior to the substantive decision he made under s 501(3). As I have said, the plaintiff referred to this “decision” as an anterior decision. Other terms used in the course of submissions included “personal preliminary decision” and “procedural decision”. At one point, the plaintiff seemed to suggest that, in fact, there were three decisions made by the Assistant Minister as follows: (1) a decision to consider cancelling the plaintiff’s visa; (2) a decision whether to proceed under s 501(2) or s 501(3); and (3) a substantive decision under s 501(3). The plaintiff further submits that the Assistant Minister could not have decided to proceed under s 501(3) rather than s 501(2) by having regard to national interest considerations because he had not yet considered those matters. In effect, that matter was yet to be considered. The plaintiff submits that it should be inferred that the relevant consideration in the decision to proceed under s 501(3) rather than 501(2), must have been whether or not natural justice should be accorded. It should be observed at this point that the according of natural justice is not the only difference between the subsections. Section 501(3)(d) requires a consideration of the national interest.

28    As I understood the plaintiff’s submission, it was that the anterior decision it has identified may be struck down for legal unreasonableness. The plaintiff accepts that the rules of natural justice did not apply to the anterior decision. As the plaintiff put it, that must be the case otherwise there would be an obligation to accord natural justice with respect to a decision about whether the rules of natural justice should be applied.

29    In order to support his claim that there was an anterior decision which may be struck down if it is legally unreasonable, the plaintiff relied on the decision of the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 (SZSSJ) and, in particular, the observations of the Court at [52]–[55]. These paragraphs address the non-compellable powers in ss 48B, 195A and 417 of the Act. They are as follows:

52.    Three principles are to be drawn from Plaintiff M61/2010E and Plaintiff S10/2011 concerning the construction and relevant application of ss 48B, 195A and 417 of the Act.

53.    First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.

54.    Secondly, processes undertaken by the Department to assist in the Minister’s consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister’s consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.

55.    Thirdly, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact.

30    The plaintiff submits that the anterior decision was one made without reasons and was legally unreasonable because the criterion was whether or not natural justice should be accorded to the person affected. The only cases, so the submission goes, where it would not be legally unreasonable not to accord natural justice to the person affected are those of an exceptional nature or where a decision must be made as a matter of urgency (Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 (Re Patterson) at [326]–[327], [332]–[333] per Kirby J). The plaintiff pointed to the history of visa cancellations and submitted that the case was not exceptional and there were no circumstances of urgency.

31    The Assistant Minister also made a preliminary point about the obligation to give reasons. He referred to the decision of the High Court in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [31]–[32] per French CJ and Kiefel J (as her Honour then was) and made the point that an inference that a matter not mentioned in reasons was not considered may, not must, be drawn and that there was no obligation to give reasons with respect to a personal preliminary decision. The Assistant Minister submits that in this case there is no anterior decision or “personal procedural decision”, to use the words of the High Court in SZSSJ. The Assistant Minister submits that he was free to proceed under s 501(3). There is no two stage process as there was in SZSSJ. He submitted that a decision under s 501(3) could involve simultaneously rejecting, or just making inapplicable, s 501(2) and that there is no prior procedural decision.

32    In my opinion, the Assistant Minister’s submissions are correct. I accept that the Assistant Minister himself refers to having decided to proceed to make a decision under s 501(3). I also note that in the submission to the Assistant Minister, including the recommendations, there is reference to the Assistant Minister being able to decide to proceed under s 501(2) or s 501(3). Nevertheless, I do not think that that is a “decision” which is subject to judicial review for legal unreasonableness. It does not involve the exercise of a statutory power and it is the statutory power which brings with it the implication that the power will be exercised in a matter which is legally reasonable (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [29] per French CJ; at [63] per Hayne, Kiefel and Bell JJ; at [89]–[90] per Gageler J). In my opinion, SZSSJ is distinguishable. The important point in that case is that the Minister had made a personal procedural decision which meant that the Minister’s consideration had a statutory basis and the rules of natural justice applied. That is not what has happened in this case. In this case, the statutory basis emerges as the Assistant Minister proceeded down the s 501(3) path, not before. I should add that even if I am wrong, I am not convinced that any decision to proceed under s 501(3) rather than s 501(2) is necessarily legally unreasonable. The test of legal unreasonableness is articulated in Li as being a decision which lacks an evident and intelligible justification (at [76] per Hayne, Kiefel and Bell JJ). The problem for the plaintiff is that he links the unreasonableness to an approach to the scope of the national interest which, in addressing Ground 6, he accepted was not in line with the authorities.

33    I reject Ground 2 of the application.

Grounds 3 and 4

34    It is convenient to deal with these grounds together because they both rely on the principle that a decision-maker who proceeds on an incorrect understanding of the law as it affects the decision commits a jurisdictional error. The grounds are in the following terms:

3.    The decision of the first defendant to cancel the visa held by the plaintiff was affected by jurisdictional error in that:

   a.    the plaintiff repeats paragraphs 2(a) to 2(j) above;

b.    the Minister made the decision to act under s 501(3) of the Migration Act, “without natural justice”, on the basis of a misunderstanding as to the legal and practical operation of the alternative power in s 501(2), in that he understood that, in order to make a decision under s 501(2), the plaintiff would be required to be provided with a Notice of Intention to Consider Cancellation and given 28 days in which to respond to that notice, when in fact the rules of natural justice are flexible and did not necessarily require that the plaintiff be given 28 days’ notice of the proposed decision, and s 501(2) is not conditioned upon any such requirement; and

c.    consequently, the Minister proceeded on the incorrect basis that he had a binary choice between providing the plaintiff with 28 days’ notice under s 501(2) and making a decision under s 501(3).

4.    The decision of the first defendant to cancel the visa held by the plaintiff was affected by jurisdictional error in that:

   a.    the plaintiff repeats paragraphs 2(a) to 2(j) above;

b.    the Minister made the decision to act under s 501(3) of the Migration Act, “without natural justice”, on the basis of a misunderstanding as to the legal and practical operation of s 501(3), in that he failed to appreciate that although, if he acted under s 501(3) of the Migration Act, he was not bound by law to afford natural justice to the plaintiff, it was nevertheless open to him to afford the plaintiff an opportunity to be heard in relation to the proposed decision and its basis, and proceeded on the basis that the power in s 501(3) could only be exercised by the Minister if the plaintiff was not given such an opportunity; and

c.    consequently, the Minister proceeded on the basis that he had a binary choice between providing the plaintiff with (his understanding of) natural justice under s 501(2) and making a decision under s 501(3) without providing the plaintiff any opportunity to be heard of any kind.

35    There is no dispute as to the relevant principle. In Re Patterson, Gummow and Hayne JJ said (at [196]):

… 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).

36    In Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 91 ALJR 890; (2017) 347 ALR 350, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said (at [68]):

… 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.)

37    Ground 3 of the application purports to identify an error in paragraph 9 of the Assistant Minister’s reasons (set out above at [14]). The error is said to be that the Assistant Minister, in considering the operation of s 501(2) of the Act, proceeded on the basis that the person who is provided with a notice of intention to consider cancellation is to be given 28 days in which to respond to the notice. The error is said to be that neither the subsection, nor any other section in the Act, specifies a period which must be allowed to a person in order to respond to a notice.

38    I reject this ground. First, it seems to me to fall within my rejection of Ground 2. The Assistant Minister was entitled to go straight to s 501(3) of the Act and the validity of his decision under that subsection is not affected by any misunderstanding as to the operation of s 501(2). Secondly, and in any event, I am not satisfied that it should be inferred from the reasons that the Assistant Minister necessarily considered that s 501(2) of the Act required that the notice must provide for a response period of 28 days. It may be that he was simply referring to the practice of the Department. Nothing different emerges from the submission to the Assistant Minister. In any event, it is difficult to see how the matter would have been in any way material.

39    Ground 4 is that the Assistant Minister proceeded on the erroneous understanding that under s 501(3) he could not accord any type of hearing to the visa holder in exercising the power under s 501(3). I considered a similar argument in Ibrahim v Minister for Home Affairs [2018] FCA 1592 (Ibrahim). Even assuming that the Assistant Minister considered that he was bound not to accord natural justice, the argument should be rejected for the reasons I gave in Ibrahim. In that case, I said:

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. …

…

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.

40    Another way of perhaps putting the point is that an incorrect understanding of the law will often be capable of being characterised as failing to take into account a relevant consideration or taking into account an irrelevant consideration. The Assistant Minister was not bound to consider the possibility of according some type of “hearing” to the plaintiff and, therefore, there is no jurisdictional error in not considering it whatever the reason.

41    Grounds 3 and 4 in the application are rejected.

Ground 5

42    Ground 5 is as follows:

5.    The decision of the first defendant to cancel the visa held by the plaintiff was affected by jurisdictional error in that:

   a.    the plaintiff repeats paragraphs 2(a) to 2(h) above;

b.    the materials provided to the defendant described in paragraph 2(h) above stated that the plaintiff was “in the community following the decision of the Federal Court of Australia on 12 February 2018” and that he was “released from immigration detention on Christmas Island”;

   c.    As a matter of objective fact, these statements were incorrect in that:

 i.    after the making of the order stated in paragraph 2(f) above, officers of the Department had requested that the plaintiff give written consent to his remaining at the detention centre pending his flight back to mainland Australia;

ii.    the plaintiff had given that consent and his freedom of movement was thus effectively restrained;

iii.    in any event, in the circumstances of the plaintiff’s detention since June 2016, he had no means of returning from Christmas Island to mainland Australia other than through the Department;

iv.    the plaintiff was still at the detention centre as described in paragraph 2(g) above and awaiting a flight to the mainland at the times that the materials described in paragraph 2(h) above were drafted, when they were provided to the defendant, and then when they were considered by the defendant;

v.    the author of the materials knew, or alternatively ought to have known, of the matters in sub-paragraphs i, ii, and iii above;

vi.    by reason of these matters, the defendant ought to have known of the matters in sub-paragraphs i, ii, and iii above;

d.    Consequently, the defendant in acting on the incorrect statements made a decision that was unreasonable or, alternatively, failed to take into account a relevant consideration.

43    I have already set out the evidence which is relevant to Ground 5. In my opinion, it is not incorrect to say that the plaintiff had been released from immigration detention. It is more difficult to say that he was in the community. However, whatever conclusion is reached about that, it is a matter of no consequence. The statement is in the submission, not in the Assistant Minister’s reasons and I was not referred to anything in those reasons to suggest that the statement in the submission that the plaintiff was in the community played any part in the Assistant Minister’s decision.

44    Ground 5 in the application is rejected.

Ground 6

45    Ground 6 is as follows:

6.    The decision of the first defendant to cancel the visa held by the plaintiff was affected by jurisdictional error in that:

  a.    The plaintiff repeats paragraphs 2(a) to 2(j) above.

b.    In making the decision, the defendant was satisfied that the cancellation of the plaintiff’s visa was in the national interest.

c.    The materials upon which the defendant based his decision did not afford any reasonable or rational foundation for a conclusion that cancellation of the plaintiff's visa was in the national interest.

46    Ground 6 is to the effect that the Assistant Minister’s decision to cancel the plaintiff’s visa was affected by jurisdictional error in that the materials upon which the Assistant Minister based his decision that the cancellation was in the national interest did not afford any reasonable or rational foundation for a conclusion that cancellation of the plaintiff’s visa was in the national interest.

47    As I have said, this ground was put formally by the plaintiff, but not developed. The plaintiff accepts that on the authorities as they stand, his argument must be rejected (Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 at [85]–[90]; Rangiwai v Minister for Immigration and Border Protection [2015] FCA 621). He accepts that the decision of Kirby J in Re Patterson (at [326]–[327], [332]–[333]) represents a minority view. The plaintiff wishes to preserve his position should this matter proceed further on appeal.

Conclusion

48    The application must be dismissed.

Associate:    

Dated:    25 January 2019