FEDERAL COURT OF AUSTRALIA

McCulloch v Minister for Home Affairs [2019] FCA 54

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended originating application filed on 4 September 2018 be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant, Te Ahu McCulloch, seeks judicial review of a decision of the Assistant Minister for Home Affairs (Assistant Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the decision made by a delegate of the respondent (Minister) to cancel his Class TY Subclass 444 Special Category (Temporary) Visa (Visa). The delegate’s decision (Cancellation Decision) was made under s 501(3A) of the Act.

2    Mr McCulloch raises two grounds of review in his amended originating application filed on 4 September 2018 (Amended Originating Application) which are respectively set out at [19] and [48] below. In summary, Mr McCulloch contends that first, the Minister did not have jurisdiction pursuant to s 501CA(4) of the Act to consider whether or not to revoke the Cancellation Decision, thereby making the Assistant Minister’s purported decision void; and that secondly, the Minister misconstrued material information before him, resulting in him constructively failing to exercise his jurisdiction.

3    For the following reasons, the application should be dismissed.

Background

4    Mr McCulloch is a citizen of New Zealand. On 1 July 2003 he entered Australia and was granted the Visa.

5    On 1 June 2016 Mr McCulloch was convicted by the District Court of New South Wales (District Court) of one count of persuading a witness to give false evidence with intent to procure an acquittal, two counts of contravening an apprehended domestic violence order and one count of assault. He was sentenced to an aggregate of three years and six months imprisonment.

6    By letter dated 6 April 2017 (Cancellation Decision Letter) Mr McCulloch was notified of the Cancellation Decision. That letter informed Mr McCulloch, among other things, that:

You were granted a Class TY Subclass 444 Special Category (Temporary) visa on 01 July 2003 (your visa). The purpose of this notice is to advise you that on 06 April 2017 your visa was cancelled under s 501(3A) of the Migration Act 1958 ('the Act').

…

Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act.

Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 01 June 2016 you were convicted of Persuading a witness to give false evidence with intent to procure an acquittal, Contravening an apprehended domestic violence order (two counts) and Assault and sentenced to an aggregate of three years and six months imprisonment.

…

Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

...

Opportunity to seek revocation of the cancellation decision

While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations about revoking the decision to cancel your visa.

You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled "How to make representations about revocation of the decision to cancel your visa" and "Timeframe to make representations about revocation".

The decision to cancel your visa may be revoked by the Minister under s501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:

•    you pass the character test (as defined by s 501 of the Act); or

•    there is another reason why the decision to cancel your visa should be revoked.

…

(original emphasis)

7    Under the signature appearing on the Cancellation Decision Letter was the following:

Position Number:    60011903- JE

National Character Consideration Centre

Department of Immigration and Border Protection

8    On 13 April 2017 Mr McCulloch sent his completed form requesting revocation of the Cancellation Decision together with several other documents to the Department of Immigration and Border Protection (now the Department of Home Affairs) (Department).

9    On 18 April 2017 Mr McCulloch’s national police certificate, which provided details of all disclosable court outcomes recorded against him, was sent to the Department (Police Certificate).

10    On 2 May 2018 the Assistant Minister decided not to revoke the Cancellation Decision pursuant to s 501CA(4) of the Act. Mr McCulloch was notified of that decision on 4 May 2018.

The assistant Minister’s decision

11    The Assistant Minister was satisfied that Mr McCulloch had made representations seeking revocation of the Cancellation Decision as required by s 501CA(4)(a) of the Act.

12    The Assistant Minister noted that the Visa was cancelled under s 501(3A) of the Act because a delegate was satisfied that he did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c) of the Act. That is, because he was serving a sentence of imprisonment on a full time basis of three years and six months for various convictions. Having considered Mr McCulloch’s representations and documents he provided, and noting that Mr McCulloch did not dispute the information contained in the Police Certificate regarding his criminal convictions and sentences or that he did not pass the character test, the Assistant Minister found that Mr McCulloch did not pass the character test. Accordingly, the Assistant Minister found that s 501CA(4)(b)(i) of the Act was not satisfied.

13    The Assistant Minister then turned to consider whether he was satisfied that there was another reason why the Cancellation Decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act. The Assistant Minister considered the following matters:

(1)    the strength, nature and duration of Mr McCulloch’s ties to Australia in relation to which the Assistant Minister noted that:

(a)    Mr McCulloch had resided in Australia for some 14 years, having arrived as a child at the age of 11 years old. Given that he had lived in Australia from a young age, the Assistant Minister was of the view that the Australian community may afford him a higher tolerance of criminal conduct. However, the Assistant Minister gave this consideration less weight as Mr McCulloch began offending when he was 16 years old and continued to do so as an adult;

(b)    Mr McCulloch had made some positive contributions to the community through his limited employment and familial and social relationships;

(c)    Mr McCulloch’s mother, the only person he considers to be a member of his immediate family, lives in Australia. Mr McCulloch submitted that his mother has health problems and requires support, which he would be unable to provide should the Visa be cancelled, but the Assistant Minister observed that Mr McCulloch had not provided any details regarding the nature of the assistance he provides to her or any medical or similar evidence corroborating his claims. The Assistant Minister also considered Mr McCulloch’s mother’s reported comments in the 2016 pre-sentence report that it would not be advisable for Mr McCulloch to reside with her as she believed that he had unresolved violent behaviour problems. The Assistant Minister accepted that non-revocation would cause Mr McCulloch’s mother to experience emotional hardship;

(2)    the extent of impediments if removed. The Assistant Minister noted that Mr McCulloch had not indicated any physical or psychological health conditions that would prevent him from working or require treatment and that New Zealand citizens have similar access to health and other services as Australian citizens. While Mr McCulloch claimed he had no immediate family members in New Zealand, the Assistant Minister noted that the sentencing remarks indicated that he has a father and an older brother in New Zealand but that because of his claims that he was subjected to violence from them during his childhood, it was reasonable that Mr McCulloch may not want to contact them upon his return. The Assistant Minister accepted that Mr McCulloch had not returned to New Zealand in the past 14 years; has no support networks there; would face some difficulty settling in New Zealand without those networks or financial support; and that it would be an emotional, financial and practical hardship for him to return there without his Australian based mother and social networks in place;

(3)    protecting the Australian community in relation to which the Assistant Minister:

(a)    noted Mr McCulloch’s claims that he is remorseful, has changed for the better, and is unlikely to reoffend;

(b)    found that, given the violent crimes he has committed, the Australian community would expect that he not revoke the Cancellation Decision;

(c)    noted that Mr McCulloch has many violent offences in his criminal history. The Assistant Minister set out Mr McCulloch’s criminal history and concluded that it should be regarded as very serious in nature as it included repeated offences of violence, both as a juvenile and as an adult and that, as an adult, it included domestic violence offences; and that Mr McCulloch’s disregard of the conditions of apprehended domestic violence orders demonstrated a disregard for Australian laws; and

(g)    found that on balance, while Mr McCulloch had expressed genuine remorse, completed courses which will assist in the provision of skills to prevent re-offending, and received good behaviour reports in prison, his ability to live up to his stated aims had not yet been tested in the community. The Assistant Minister accordingly concluded that there is an ongoing risk that Mr McCulloch will re-offend because, despite Mr McCulloch’s recent progress towards rehabilitation, there was evidence that he had a history of repeated violent offending, a 2016 pre-sentence report indicated that there was a medium to high risk that he would re-offend, and his mother had given evidence that she was reluctant to allow him to reside with her due to his unresolved violent behaviour problems.

14    The Assistant Minister concluded that there was not another reason why the Cancellation Decision should be revoked. In coming to that conclusion the Assistant Minister gave significant weight to the serious nature of the crimes committed by Mr McCulloch, could not rule out the possibility of further offending and found that, even having regard to the ties Mr McCulloch has formed as a result of having resided in Australia for over 14 years and the consequences of the decision on his mother, Mr McCulloch represented an unacceptable risk of harm to the Australian community. The Assistant Minister noted that protecting the community outweighed any other consideration.

statutory framework

15    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because, relevantly, pursuant to s 501(6)(a) they have a substantial criminal record on the basis of s 501(7)(a), (b) or (c) and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory. A person has a substantial criminal record if, among other things, he or she has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act.

16    Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) of the Act to cancel a visa that has been granted to a person: subs (1). That section relevantly continues:

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

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

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

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

   (b)    the Minister is satisfied:

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

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

…

17    Section 496 of the Act provides for the Minister to delegate his powers under the Act and relevantly provides:

(1)    The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.

(1A)    The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.

…

18    Section 497 of the Act relevantly provides:

497    Delegate not required to perform certain administrative tasks

…

(2)    If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.

   (3)    Nothing in subsection (1) or (2) shall be taken to imply that:

(a)    a person on whom a power is conferred by or under this or any other Act; or

(b)    a delegate of such a person;

is required personally to perform all administrative and clerical tasks connected with the exercise of the power.

Ground one

19    The first ground raised by Mr McCulloch in the Amended Originating Application (numbered 4) is:

4.    The Respondent did not have jurisdiction to consider whether or not to revoke the original decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to s.501CA(4) of the Migration Act 1958 (“the Act”) thus the purported decision made by the Respondent not to revoke the cancellation is void.

Particulars

(a)    The letter dated 6 April 2017 from an officer of the Respondent’s Department addressed to the Applicant stating the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled on 6 April 2017 is not a notice to the Applicant pursuant to s.501CA(3) of the Act as it was not given by the Minister personally or by a person properly delegated under s.496 of the Act.

(b)    The revocation request made by the Applicant on 17 April 2017 was not a representation made in the manner described in s.501CA(4)(a) as the Applicant have not been given a valid notice pursuant to s.501CA(3). It follows the Minister’s power to revoke and not revoke under s.501CA(4) is not enlivened.

(underlining omitted)

Submissions

20    Mr McCulloch accepts that the Visa was validly cancelled under s 501(3A) of the Act. However, he contended that the Cancellation Decision Letter was not given in accordance with s 501CA(3) of the Act because the officer who sent the letter was neither a delegate of the Minister nor authorised by the Minister to send it.

21    Mr McCulloch submitted that s 501CA(4) gives the Minister a discretionary power to revoke a decision made under s 501(3A) of the Act to cancel a person’s visa if all relevant matters described in s 501CA(4)(a) and (b) are satisfied. He submitted that the Minister’s discretionary power to revoke or not revoke the Cancellation Decision only arises in circumstances where each of the following questions is answered in the affirmative:

(1)    has Mr McCulloch been invited to make representations about the revocation of the Cancellation Decision as required by s 501CA(3)(b) of the Act?

(2)    are the representations made by Mr McCulloch in accordance with the invitation given to him as required by s 501CA(3)(b) of the Act?

(3)    is the Minister satisfied that Mr McCulloch passes the character test (as defined in s 501 of the Act) or is there another reason why the Cancellation Decision should be revoked?

22    Mr McCulloch submitted that until each of those questions is answered in the affirmative, the Minister has no power to decide to revoke or not revoke the Cancellation Decision and any purported decision under s 501CA(4) of the Act is void. Mr McCulloch further submitted that if all of the matters prescribed by s 501CA(3) are not lawfully performed, as was the case here, the power in s 501CA(4) of the Act is not enlivened.

23    Mr McCulloch observed that s 501CA(3) requires the Minister to do more than simply notify the person whose visa is cancelled of that fact, it also requires the Minister to provide the person with relevant information as defined in s 501CA(2) of the Act. Mr McCulloch submitted that the latter requirement underlines the importance of s 501CA(3) to the operation of s 501CA(4) because its purpose is to provide the person affected by the original cancellation decision with procedural fairness. He said that if the task required by s 501CA(3) is not properly performed by the Minister or his or her delegate then the person affected by the decision may not have been provided with the relevant information and would not have been afforded procedural fairness.

24    Mr McCulloch contended that the Cancellation Decision Letter was invalid for the purposes of s 501CA(3) of the Act. He relied on the decision of the Federal Circuit Court of Australia (Federal Circuit Court) in Aciek v Minister for Immigration and Border Protection (2017) 327 FLR 412; [2017] FCCA 3237 (Aciek) at [75] where Judge Manousaridis found that a notice given by an officer of the Department who was not delegated with the tasks prescribed by s 501CA(3) was not a notice given in accordance with s 501CA(3) which means “there was in law no notice given to the applicant under s 501CA(3) of the decision to cancel the [visa] … and that there remains unperformed the obligation specified in s 501CA(3) of the Act…”.

25    Mr McCulloch submitted, based on that authority, that the Cancellation Decision Letter was invalid for the purposes of s 501CA(3) of the Act because there was no evidence that the author of that letter was delegated power under s 496 of the Act to perform the tasks under s 501CA(3) of the Act. Mr McCulloch contended that it followed any invitation to make representations contained in the Cancellation Decision Letter was similarly not in accordance with s 501CA(3)(b) and any purported representations made by him cannot be in accordance with the invitation under s 501CA(3)(b) as the obligation to invite remains unperformed.

26    Mr McCulloch further submitted that, accordingly, the requirements of s 501CA(4)(a) are incapable of being satisfied by him until such time as the obligation specified in s 501CA(3) of the Act is lawfully performed. He contended that it followed that the Assistant Minister’s purported decision not to revoke the Cancellation Decision is void on the basis that the Minister’s power under s 501CA(4) cannot be enlivened until at least after the obligation specified in s 501CA(3) is lawfully performed.

Consideration

27    In effect Mr McCulloch alleges that the Assistant Minister’s decision not to revoke the Cancellation Decision is invalid because of a failure to comply with essential preconditions to the exercise of the power in s 501CA(4) of the Act, namely the issue of an invitation under s 501CA(3).

28    The Minister concedes that the officer who sent the Cancellation Decision Letter was neither a person to whom the Minister had delegated his authority under the Act nor expressly authorised by the Minister to send the letter.

29    Central to the applicant’s submissions in support of this ground is the decision in Aciek. Before proceeding further it is useful to set out that decision in some detail. In that case Mr Aciek’s visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act. He was notified of the cancellation of his visa by letter dated 22 February 2016 (referred to in the reasons as the Cancellation Notice) which was prepared by a Departmental officer or a person on her behalf.

30    Mr Aciek’s grounds of review were directed to the lawfulness of the giving of the Cancellation Notice. While not expressly pleaded, in submissions Mr Aciek alleged that the Cancellation Notice was invalid because the Departmental officer who purported to send it was not delegated the power provided for in s 501CA(3) of the Act. As is the case here, the Minister conceded that the power under s 501CA(3) of the Act had not been specifically delegated to the relevant Departmental officer. The hearing proceeded before Judge Manousaridis on the basis that one of the grounds raised by Mr Aciek was that the Cancellation Notice was of no effect because it was not given personally by the Minister and the power to give the notice and provide the particulars of “relevant information”, as set out in s 501CA(3), had not been delegated to the Departmental officer who purported to give it: Aciek at [22]-[23].

31    As Mr Aciek filed his application out of time, the court had to first consider whether it should grant an extension of time within which to file the application under s 477(2) of the Act. In doing so, Judge Manousaridis concluded that Mr Aciek had an arguable case that the Departmental officer did not have the power to give the Cancellation Notice. In coming to that view, in his detailed reasons, Judge Manousaridis first considered whether the tasks prescribed by s 501CA(3) of the Act were one of the powers of the Minister under the Act. His Honour found that they did and at [58]-[60] said:

58    Despite the ubiquity of the use of the word “power” in public and private law, and its analysis in jurisprudence, the concept of “power” has not received any substantial analysis in the cases. One reason may be that “power” has a well-understood and sufficiently unambiguous meaning in the various contexts in which the word is usually employed. For present purposes it is sufficient to refer to one denotation of the notion of “power”, namely, a relationship or potential relationship between two persons or two classes of persons in which the first mentioned person (power repository) has the legal capacity to affect the legal rights or interests of the other person or persons. Whether or not in any given case a person has such legal capacity depends on the existence of a basis (power source) which the law recognises gives the power repository the capacity to affect the legal rights or interests of another or others. In the sphere of private law the power source is usually a contract or some other instrument; and in the sphere of public law the power source is usually a statutory provision. Whether in any given case the power repository can lawfully exercise the capacity conferred by the power source depends on the terms contained in the power source. A statutory provision, for example, expressly or impliedly sets out the acts or classes of acts the power depository may or must do or not do, the circumstances in which the power repository may or must do or not do the acts or classes of acts, and the legal consequences of the power repository’s doing or not doing the acts the statutory provision requires the power repository to do or not do.

59    This notion of “power” — the capacity or obligation of a power repository to do or not do an act authorised by the power source that affects the interests or legal rights of another or others — is present in the language by which the principles governing the implication of a duty to accord procedural fairness are stated and expounded. The following is an example:

The implication of procedural fairness is the product of a strong common law presumption applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests.

60    In my opinion it is reasonably arguable that the word “powers” that appears in the expression “Minister’s powers under this Act” in s 496 of the Act has the meaning I have concluded is carried by the word “power”; and that the expression “Minister’s powers under this Act” denotes all of the acts that provisions of the Act permit the Minister to do or not do, or which require the Minister to do or not do, that affect the legal rights and interests of other persons. In those circumstances, it is reasonably arguable that, subject to the potential application of the Carltona principles (which I briefly address later in these reasons), the set of tasks identified in s 501CA(3) of the Act is a “power” and, hence, is one of the “Minister’s powers under [the] Act” which the Minister must exercise personally, or which he or she may under s 496 of the Act delegate to another person to exercise.

a)    First, s 501CA(3) identifies the acts the Minister must do. The Minister must, as soon as practicable after making the original decision, give to the person a “written notice that sets out the original decision” and “particulars of the relevant information”, being the information identified in s 501CA(2), namely, information the Minister considerers (sic) “would be the reason, or a part of the reason, for making the original decision” and which is “specifically about the person or another person and is not just about a class of persons of which the person or other person is a member”. The Minister must invite the person whose visa has been cancelled to make representations to the Minister “about revocation of the original decision”. The Minister must also consider the way that is “appropriate in the circumstances” to give to the person whose visa has been cancelled written notice of the decision to cancel and particulars of the “relevant information”. Further, from the fact the Minister is required to give “particulars of the relevant information”, it follows that s 501CA(3) requires the Minister at the very least to undertake the far from trivial task of identifying and expressing in some way the information he or she considered “would be the reason, or a part of the reason, for making the original decision”.

b)    Second, the proper exercise of the tasks prescribed by s 501CA(3) of the Act creates a legal right for the benefit of persons whose visa has been cancelled under s 501(3A). If properly exercised, the giving of a notice under s 501CA(3) creates a right to make representations to the Minister to revoke the cancellation; and the making of such representations, assuming they are made according to the requirements of the notice properly given under s 501CA(3) of the Act, confer a right on the person to apply to a court of appropriate jurisdiction for a writ of mandamus to compel the Minister to consider according to law the representations with a view to determining whether the Minister should exercise the power under s 501CA(4) of the Act to revoke the cancellation of the visa. If, on the other hand, the tasks prescribed by s 501CA(3) are not undertaken, or properly undertaken, by the Minister or his delegate, the person whose visa has been cancelled would be entitled to compel the performance of those tasks by mandamus.

(footnotes omitted and emphasis added)

32    Secondly, Judge Manousaridis considered whether s 497 of the Act applied to the tasks prescribed by s 501CA(3), noting that the answer to this question turned on whether the tasks prescribed by s 501CA(3) of the Act are tasks in connection with the cancellation of a visa. His Honour held that it was reasonably arguable that they were not and at [62] set out four reasons why that was so:

a)    First, s 501CA(3) is premised on the Minister already having made a decision under s 501(3A) of the Act to cancel a visa. That is clear from s 501CA(1) which provides that s 501CA applies “if the Minister makes a decision (the original decision) under subsection 501(3A) … to cancel a visa that has been granted to a person”.

b)    Second, the word “cancellation” in s 497 of the Act denotes the action of cancelling. That implies that “cancellation” in s 497 covers only those actions that lead up to the decision to cancel the visa, but not any actions that occur after the decision to cancel the visa is made. The decision to cancel a visa under s 501(3A) is effective when the decision is made. It does not require the giving of a notice under s 501CA(3) of the Act.

c)    Third, the Ministers submissions appear to assume that the only task prescribed by s 501CA(3) of the Act is the relatively trivial task of communicating a notice to the person whose visa has been cancelled, and that this is an administrative or clerical task to which s 497 applies. Subsection 501CA(3) of the Act, however, requires the Minister to do more than simply communicate a notice. The notice must specify the “relevant information” which includes particulars of the information that “would be the reason, or a part of the reason, for making the original decision”. That implies an active intellectual process which, first, articulates the information that would be the reason, or a part of the reason, for making the original decision and, second, formulates the particulars of that information for inclusion in the notice. These tasks cannot reasonably be characterised as administrative or clerical.

d)    Fourth, it is difficult to see how any person, other than the person who made the decision to cancel the visa in the first place, could articulate the information that “would be the reason, or a part of the reason, for making the original decision” to cancel the visa and, hence, formulate the particulars of that information for inclusion in the notice that is given under s 501CA(3) of the Act. That suggests that s 501CA(3) requires the person who made the decision to cancel the visa under s 501(3A), rather than some other person, to undertake at least the task of formulating with a view to including them in the notice to be given under s 501CA(3) the particulars of the information that “would be the reason, or a part of the reason, for making the original decision” to cancel the visa.

33    Thirdly, Judge Manousaridis held that it was reasonably arguable that the power to delegate the power to cancel a visa does not impliedly carry with it a delegation of the tasks prescribed by s 501CA(3) of the Act: Aciek at [63].

34    Fourthly, Judge Manousaridis considered whether it was reasonably arguable that the principle in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (Carltona) applied to the issue of correspondence pursuant to s 501CA(3) of the Act. His Honour found that it did not because there was nothing in the material before the court to suggest that the Departmental officer was appointed to act as agent for the Minister or purported to so act.

35    Having found that Mr Aciek had a reasonably arguable case that the Cancellation Notice did not constitute the giving by the Minister of a notice required by s 501CA(3) of the Act and weighing that against other relevant factors, Judge Manousaridis was satisfied that it was necessary in the interests of the administration of justice that an order be made under s 477(2) of the Act extending the time for Mr Aciek to file his application: Aciek at [71]-[72]. Having done so, his Honour then turned to consider the sole ground raised by Mr Aciek that his Honour found was reasonably arguable. At [74] Judge Manousaridis found that the following conclusions, listed at [73], were not only reasonably arguable but correct:

a)    if it is assumed that the tasks prescribed by s 501CA(3) of the Act are properly characterised as a “power” and, for that reason, are to be counted as one of the “Minister’s powers under this Act” within the meaning of s 496; and that s 497 of the Act does not apply to the tasks prescribed by s 501CA(3) of the Act, the following conclusions are reasonably arguable:

i)    the tasks prescribed by s 501CA(3) of the Act can only be undertaken by the Minister personally or by a person to whom the Minister has delegated the tasks in writing pursuant to s 496 of the Act;

ii)    given the Departmental Officer had not been delegated the tasks prescribed by s 501CA(3) of the Act, the Cancellation Notice cannot be said to have been validly given by the Minister and, thus, is of no effect; and

iii)    the Minister is liable to a writ of mandamus requiring him to give a notice under s 501CA(3) in relation to the cancellation of the Applicant’s Visa; and

b)    the following conclusions are also reasonably arguable:

i)    the tasks prescribed by s 501CA(3) of the Act are properly characterised as a “power” and, for that reason, are to be counted as one of the “Minister’s powers under this Act” within the meaning of s 496 of the Act;

ii)    s 497 of the Act does not apply to the tasks prescribed by s 501CA(3) of the Act;

iii)    delegating the power to cancel a visa does not implicitly carry with it the delegation of the tasks prescribed by s 501CA of the Act; and

c)    there is nothing in the material before me to suggest that the Departmental Officer acted as agent for the Minister in giving the Cancellation Notice.

36    At [75] Judge Manousaridis concluded that, based on those findings, the Cancellation Notice provided to Mr Aciek was not given in accordance with s 501CA(3) of the Act and that accordingly, as there was no notice given pursuant to law, the obligation specified in s 501CA(3) of the Act remained unperformed.

37    The Minister sought to appeal the decision in Aciek: see Minister for Home Affairs v Aciek [2018] FCAFC 120 (Aciek Appeal). A Full Court of this Court (Flick, Griffiths and Derrington JJ) concluded that the appeal should be permanently stayed. This was because any question as to the validity of the Cancellation Notice had been rendered moot by intervening events and the Court declined to exercise its discretion to hear the appeal: Aciek Appeal at [9]-[10].

38    The Minister’s position is that Aciek was wrongly decided and that I would not follow it. He submitted that there were three respects in which the reasoning in Aciek disclosed error: first, s 501CA(3) does not confer a statutory power on the Minister but imposes an obligation or duty to provide the notice/invitation referred to therein; secondly, the tasks to be undertaken under s 501CA(3) are “in connection with the cancellation” of a visa and thus within s 497(2) of the Act; and thirdly, that it was incorrect to find that the Carltona principle did not apply to the issue of the correspondence required by s 501CA(3) because there was no evidence that the Departmental officer was authorised by the Minister to perform the function.

39    In the alternative, the Minister submitted that the decision in Aciek can be distinguished from this case.

40    I turn first to consider the decision in Aciek. Given Mr McCulloch’s reliance on it and the Minister’s submissions in relation to it, it is necessary for me to consider his Honour’s reasons and whether they are wrong in the respects urged by the Minister.

41    Despite the Minister raising the above three bases upon which he contended that the decision in Aciek was wrong, the Minister focused on the second alleged error. The Minister urged the Court to consider the second articulated issue, namely whether the steps to be taken under s 501CA(3) of the Act require delegated authority or whether they are, contrary to the conclusion reached in Aciek, in connection with the cancellation of a visa and thus within s 497 of the Act, before turning to the remaining two issues raised. Indeed, the Minister’s argument that his Honour had erred in the first articulated respect was only faintly made and the Minister identified potential difficulties in relation to the third way in which there was said to be error in the reasons in Aciek. The Minster observed that if he is correct on the second alleged error then that is a complete answer to ground one. That being so, I will turn to consider that issue.

42    In order to do so it is necessary to examine each of the reasons given by Judge Manousaridis at [62] of Aciek (set out at [32] above) for reaching his conclusion that the tasks prescribed by s 501CA(3) of the Act were not tasks in connection with the cancellation of, in that case, Mr Aciek’s visa:

(1)    the first and second of those reasons rely on the temporal sequence within which his Honour considers steps would be undertaken. That is, Judge Manousaridis says that s 501CA(3) is premised on the Minister already having made a decision under s 501(3A) of the Act to cancel a visa. That is so. Section 501CA does not come into operation until such time as the Minister makes a decision to cancel a visa under s 501(3A): see s 501CA(1). But that does not mean that, from that point on, s 497(2) ceases to have any effect with respect to the particular cancellation decision that has been made. Judge Manousaridis focused on the word “cancellation” in s 497 noting that, as it denotes the action of cancelling, it implies that “cancellation” when used in the section only covers those actions that lead up to the decision to cancel a visa but not any actions that occur after the decision to cancel is made. In my respectful opinion, that approach does not take account of the preceding words “any task in connection with” the cancellation. A task in connection with the cancellation can arise after the making of a decision to cancel a visa and such a task would encompass notifying a person of the delegate’s decision to cancel their visa. That is, that a decision to cancel a visa under s 501(3A) is effective when the decision is made, as Judge Manousaridis observed at [62(b)] of Aciek, does not mean that notification of that decision, which must be a task in connection with the cancellation, cannot be undertaken pursuant to s 497(2) of the Act after the decision has been made;

(2)    the third of those reasons focuses on the requirements of s 501CA(3). That is, the notice must do more than simply inform the person that his or her visa has been cancelled. It must include particulars of the information that “would be the reason, or a part of the reason, for making the original decision”. His Honour found “[t]hat implies an active intellectual process” which first, articulates the information that would be the reason or part of the reason for making the original decision; and secondly, formulates the particulars of that information for inclusion in the notice. His Honour concluded that those tasks could not “reasonably be characterised as administrative or clerical”. In reaching that conclusion it seems that Judge Manousaridis relied on s 497(3) of the Act (see [18] above) which clarifies what is not implied by subs (1) and (2) of that section and speaks more generally to the exercise of powers conferred by the Act. There is no reference in s 497(2) to administrative or clerical tasks, the only parameter set by s 497(2) is that the delegate is not required personally to perform “any task in connection with the cancellation” except that of the taking of a decision as to whether a visa should be cancelled. The only relevant question to ask in determining whether, in connection with the cancellation of a visa, a task can be undertaken by a person other than the delegate is whether the task was connected with the cancellation; and

(3)    in a similar vein to the third reason is the fourth and final reason given by his Honour, namely that no person, other than the delegate who made the original decision to cancel the visa, would be able to identify the information that “would be the reason, or a part of the reason, for making the original decision” to cancel the visa. His Honour was of the view that that suggested that s 501CA(3) requires the person who made the decision to cancel the visa, rather than some other person, to undertake at least the task of formulating the particulars of that information, with a view to including them in the notice to be given under s 501CA(3). Two issues arise. First, s 497(2) permits a person other than a delegate to perform any task in connection with the cancellation. The provision of “particulars of the relevant information” is, in my opinion, a task connected with the cancellation. Secondly, his Honour’s reasoning assumes that no one other than the delegate who made the decision to cancel a visa could perform the function required by s 501CA(3). That is, an officer other than that delegate could not determine the “relevant information” as required by s 501CA(3) or could not be informed of it by the delegate who made the decision. With respect, I do not think that could be so.

43    I therefore respectfully take a different view to that taken by Judge Manousaridis in relation to whether the tasks to be undertaken pursuant to s 501CA(3) of the Act are “in connection with the cancellation” of a visa and thus required to be undertaken by a delegate of the Minister. In my opinion, they are tasks that are in connection with the cancellation of a visa and thus, pursuant to s 497(2), are not required to be undertaken by the delegate.

44    Mr McCulloch submitted that s 497(2) of the Act was silent on who, other than the delegate with the power to cancel visas, could undertake “any task in connection with the cancellation” of a visa and said that it would have to be another person with the requisite delegation. I reject that submission. To read s 497(2) in that way would render the section otiose.

45    There is no dispute between the parties that the Cancellation Decision was made by an officer with the requisite delegation from the Minister. The only question is whether the notification of the Cancellation Decision pursuant to s 501CA(3) of the Act by an officer who was not a delegate of the Minister has an effect on the decision not to revoke the Visa. In my opinion, it does not. Given my finding, contrary to the conclusion reached in Aciek, the tasks set out in s 501CA(3) of the Act are in connection with the decision to cancel a visa.

46    In the circumstances of this case, the Cancellation Decision Letter was therefore given in accordance with s 501CA(3) of the Act. Mr McCulloch’s argument that no invitation was made pursuant to s 501CA(3)(b) must fail. Given that finding it is not necessary for me to consider the Minister’s remaining two challenges to the decision in Aciek nor his alternate argument that the facts of this case are distinguishable from those in Aciek.

47    Ground one is not made out.

ground two

48    The second ground raised by Mr McCulloch in the Amended Originating Application (numbered 5) is:

5.     The Respondent misconstrued material information before him thus constructively failed to exercise his jurisdiction.

Particulars

(a)     The Respondent erred in stating the Applicant juvenile offending included two counts of robbery in company.

(underlining omitted)

Submissions

49    Mr McCulloch submitted that the Assistant Minister misconstrued material information in the Police Certificate. He observed that, in both the submission made by the Department to the Minister and the reasons for the Assistant Minister’s decision, there was an express reference to Mr McCulloch’s juvenile offending including two counts of robbery in company. Mr McCulloch contended that that fact is materially incorrect as the Police Certificate states that Mr McCulloch’s juvenile offences include only one instance of robbery in company, an offence of which he was convicted on 11 December 2007 in the Parramatta Children’s Court, and that the second event recorded therein on 17 December 2008 was a “call up” for resentencing of the same conviction.

50    Mr McCulloch did not contend that the Minister’s reasoning was legally unreasonable or illogical. Rather, he contended that there was a factual error in the material before the Assistant Minister on which he relied which was critical to his consideration of the matter and the ultimate way in which he exercised his power and determined whether to revoke the Cancellation Decision.

Consideration

51    It is not in dispute that the Police Certificate records a single offence which was the subject of two sentencing events as follows:

…

52    It is also not in dispute that the Assistant Minister’s reasons at [34] refer to Mr McCulloch’s juvenile offending as including “two counts of robbery in company”. That is, there is a factual error in the Assistant Minister’s reasons.

53    As submitted by the Minister, unless the factual error makes the Minister’s decision irrational or unreasonable or can otherwise be characterised as an error of law, then Mr McCulloch cannot establish the prerequisite to the exercise of this Court’s jurisdiction. In Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] Charlesworth J (with whom Flick and Perry JJ agreed) said:

[35]    The alleged error is one affecting the process of reasoning adopted by the Minister in the exercise of a discretionary power. It is well settled that a discretionary power conferred by a statute is to be construed as subject to the condition that it be exercised reasonably. The principles to be applied are considered at length in the various judgments in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and in the decisions of the Full Court of this Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. They may be briefly summarised as follows:

…

(6)    nevertheless, as Wigney J said (with respect correctly) in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (at [55]):

…allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

54    An examination of the Assistant Minister’s reasons discloses that the offence of robbery in company is briefly referred to at [34] as follows:

34.    Mr MCCULLOCH's juvenile offending consists of some 16 offences over a two year period. These offences include a number of violent matters: assault occasioning actual bodily harm; assault occasioning bodily harm (dv); three instances of Common assault; two counts of robbery in company; affray and intimidate police officer in execution of duty w/o abh. As a juvenile offender, Mr MCCULLOCH received one sentence of imprisonment for four months, a sentence of eight months juvenile detention, community service orders, probation, juvenile justice orders, fines, bonds and cautions.

(emphasis added)

55    In contrast, the Assistant Minister’s substantive reasoning focused on Mr McCulloch’s adult offending for which he had received prison sentences and, in particular, the offending which involved violence and domestic violence.

56    Commencing at [26] of his reasons, the Assistant Minister considered the protection of the Australian community. At [27] he concluded that “[g]iven the violent crimes committed by Mr MCCULLOCH, I am of the view that the Australian community would expect [his] visa would remain cancelled and that I would not revoke the mandatory cancellation decision”. In the following paragraphs the Assistant Minister set out his reasons for coming to that conclusion under two subheadings: “Criminal conduct” and “Risk to the Australian community”. Insofar as Mr McCulloch’s criminal history was referred to, in summary, the Assistant Minister:

(1)    expressed the view that, in considering the nature and seriousness of Mr McCulloch’s criminal offending, violent offences were to be viewed very seriously and offences involving domestic violence were of particular concern in light of the vulnerability of domestic victims and the very harmful effect of such violence on family life;

(2)    noted that Mr McCulloch had many violent offences in his criminal history, in particular assaults of various types against domestic partners as well as stalking and contravention of prohibition/restriction in apprehended violence orders;

(3)    referred to Mr McCulloch’s conviction in the District Court on 1 June 2006 and:

(a)    highlighted the sentencing remarks in relation to the conviction at that time for domestic violence offences. He noted that those offences were committed while Mr McCulloch was on a bond which had been imposed in September 2014 and that the offence underlying the imposition of the bond was also an offence involving domestic violence;

(b)    referred to the conviction of “act with intent to influence witness to procure acquittal” and considered the sentencing remarks in relation to that offence. The Assistant Minister was concerned by the ongoing control Mr McCulloch exerted upon the victim to “further his objective in reducing the consequences of his violent offending” and adopted the view of the sentencing judge that “the attempt to influence a witness ‘strikes at the heart of the criminal justice system’”;

(4)    then turned to Mr McCulloch’s prior history of convictions:

(c)    noting that between June 2012 and March 2015 he was convicted as an adult of five other offences and found that he had a history of “repeated domestic violence offending, compounding the very serious nature of his more recent offending of this type”; and

(d)    referred to Mr McCulloch’s juvenile offending as set out at [54] above; and

(5)    found that the sentences Mr McCulloch received were a further indication of the seriousness of his offending, noting that dispositions involving incarceration are the last resort in the sentencing hierarchy.

57    At [36] of his reasons the Assistant Minister concluded as follows:

36.    In conclusion, I find that Mr MCCULLOCH's criminal history should be regarded as very serious in nature, as it includes repeated offences of violence, in particular domestic violence, over both the juvenile and adult phases of his offending history. It also includes a very serious matter of attempting to influence a witness to procure an acquittal. Mr MCCULLOCH's disregard of the conditions of apprehended domestic violence orders demonstrates a disregard for Australian laws.

58    Having regard to the context in which the erroneous reference to the two counts of robbery in company was made, it is clear that it was not a matter which loomed large in the Assistant Minister’s reasons on this topic. Mr McCulloch submitted that in his view the Assistant Minister gave equal weight to his offending as an adult and as a juvenile and that the juvenile offences listed were clearly material and relevant to the Minister’s ultimate decision. But, while the Assistant Minster set out the whole of Mr McCulloch’s criminal history, his reasons indicate that he placed particular emphasis on those offences which involved violence, especially domestic violence, and for which Mr McCulloch received a custodial sentence, which he considered were more serious in nature.

59    While there is no excuse for such an error, given the important decision being made by the Assistant Minister affecting Mr McCulloch’s rights, it could not be said and, I find, that the error in relation to the number of robbery offences committed by Mr McCulloch as a juvenile did not have any material bearing on the Assistant Minister’s ultimate conclusion. The error on the part of the Assistant Minister can be characterised as an error of fact but it does not rise to or constitute a jurisdictional error. It was not material or critical to the decision.

60    Ground two is not made out.

Conclusion

61    Mr McCulloch’s application should be dismissed and, as he has been unsuccessful, he should pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    31 January 2019