FEDERAL COURT OF AUSTRALIA

Ozer v Minister for Home Affairs [2019] FCA 104

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    Pursuant to s 501BA of the Migration Act 1958 (Cth) (the “Act”), on 9 January 2018, the respondent (the “Minister”) personally cancelled the applicant’s Class BC Subclass 100 Partner (Permanent) visa (the “Visa”). By an application filed 13 February 2018, the applicant sought judicial review of that decision and an order in the nature of certiorari setting it aside. The sole ground of review was that the Minister’s decision was legally unreasonable or irrational.

Background

2    The applicant was born in Turkey and came to Australia in 2005 to get married. He was initially issued a Spouse (subclass 309) visa. The applicant’s domestic arrangements thereafter were somewhat complex but need not be described. In 2014, the applicant was involved in a welding accident at work. He lost the sight in his left eye and the sight in his right eye was greatly damaged. He was diagnosed with depression (which he does not admit). During that year the applicant continued to suffer from mental health issues. He came to suspect that his wife was having an affair. An incident then took place. The applicant went to his wife’s house armed with a knife. He screamed out threats, kicked and dislodged a flywire door, reached through a window, and, by slashing a curtain with his knife, entered the house. He scuffled with and punched a man who was there. He threatened to kill.

3    In 2016, the applicant pleaded guilty in the County Court of Victoria to charges of aggravated burglary, recklessly causing injury, and threatening to kill. He was sentenced to an aggregate term of imprisonment of 12 months. The Court also imposed a Community Correction Order (“CCO”) which came into force upon completion of his term of imprisonment and was for a period of two years. It required the applicant to report to the Community Correctional Services (the “CCS”) within two days of the end of his sentence; to undergo ongoing supervision; to be referred to healthcare providers and to undergo mental health assessments as directed; to undergo testing for drugs and remain unaffected by drugs; and to participate in offending behaviour programs as directed.

4    On 2 June 2016, a delegate of the Minister cancelled the applicant’s Visa pursuant to s 501(3A) of the Act on the basis that the applicant did not pass the “character test” in s 501(6) of the Act. It is not disputed that this test had been failed. Thereafter, the applicant made representations in accordance with an invitation he had received, seeking to have that cancellation decision revoked pursuant to s 501CA(4) of the Act. By a decision dated 3 April 2017, a delegate of the Minister decided that there was not “another reason why the original decision should be revoked” for the purposes of s 501CA(4)(b)(ii).

5    The applicant sought to have that decision reviewed by the Administrative Appeals Tribunal (the “Tribunal”). He was successful. By a decision dated 26 June 2017, the Tribunal found that the applicant’s risk of reoffending was “minimal”; that the Australian community would be of the view that the applicant should be given “another chance”; and that it was in the best interests of the applicant’s children that he remain in Australia. The decision under review was set aside.

6    Following this, a “Contravention of Community Correction Order by Conditions” report dated 30 August 2017 (the “Contravention Report”) was prepared by the Victorian Department of Justice and Regulation. It recorded that after the applicant’s release from detention the CCS had attempted to contact him for induction, but that he was unable to be reached or contacted. Because of this, and his “potentially remain high risk to the community” (sic), contravention proceedings were initiated. The Contravention Report recommended that the CCO be cancelled and that the applicant be resentenced on the original charges. It stated that the applicant was “not considered as suitable for a further community-based disposition at this time”.

7    It was not disputed that the applicant missed two appointments with the CCS scheduled for 6 and 19 July 2017. He was thus in breach of the CCO. It was also not in dispute that he also breached that order in the following ways:

(1)    The CCS was unable to refer the applicant to relevant treatment providers for assessment and treatment;

(2)    The applicant was unable to be directed to undergo urinalysis testing;

(3)    The applicant failed to attend a general practitioner for the purposes of his Mental Health Care Plan;

(4)    The CCS were unable to refer the applicant to the Corrections Victoria - Offending Behaviour Programs Unit for assessment and treatment.

8    Later on in 2017, the applicant made attempts to comply with his CCO. Thus:

(1)    The applicant attended at the Melbourne County Court for a contravention hearing with respect to his CCO on 6 December 2017 and agreed to certain new conditions;

(2)    The applicant attended an appointment with the CCS as required on 28 December 2017. A record of that meeting states that the applicant was polite and cooperative. It also states that the applicant was disappointed with his previous breaches which he described as a case of miscommunication.

9    The Minister pointed out that a few days after his decision in January 2018 there was evidence that the applicant attended at the CCS where he tested positive for cannabis. Further, by the date of the Minister’s decision here, the applicant had still not obtained a mental health plan, had still not been treated by any health provider, and had still not been referred to any offending behaviour program or anger management program.

The Legislation

10    Section 501BA of the Act provides:

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

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

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

11    In Weti-Safwan v Minister for Immigration and Border Protection [2018] FCA 1761, Jagot J helpfully described the operation of s 501BA in the following terms at [10]:

Section 501BA(2) provides that the Minister may set aside the original decision and cancel the visa if the Minister is satisfied that (a) “the person does not pass the character test”; and (b) “cancellation is in the national interest”. That is, the Minister has a discretion to set aside the original decision and cancel the visa if satisfied in respect of the character and national interest criteria. The Minister’s states of satisfaction in respect of these criteria are jurisdictional facts or conditions precedent to the exercise of a discretionary power: see eg Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 61 and Re Minister for Immigration and Multicultural Affairs; Ex part Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59.

12    The Act does not define the concept “national interest”. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, the Full Court of this Court said at [156]-[158]:

156.    There can be no doubt that, in this particular statutory context, the expression “national interest” is, like the expression “public interest”, one of considerable breadth and essentially involves a political question which was entrusted to the Minister. For example, in Pilbara [(2012) 246 CLR 379] at [42], in the context of construing a statutory discretion which vested a power in the Minister to declare a service under Pt IIIA of the Trade Practices Act 1974 (Cth), where one of the criteria was whether access, or increased access to a service “would not be contrary to the public interest”, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (footnotes omitted and emphasis in original):

It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492], when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.

157.    We consider that the observations in Pilbara have even stronger force when the relevant statutory expression is the “national interest” (see Plaintiff S156/2013 [(2014) 254 CLR 28] at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ and Madafferi [(2002) 118 FCR 326] at [89] per French, O’Loughlin and Whitlam JJ).

158.    … We accept the Minister’s submission that it is a matter for the Minister to decide, on the merits of any particular case, what national interest factors are engaged in that case (see Leiataua [(2012) 208 FCR 448] at [21] per Jessup J). There is no obligation on the Minister, in determining whether or not to exercise his power under s 501(3), to advert to all and every possible consideration which may inform an assessment of the national interest in the particular case. ... Nothing we have said above is intended to deny the established view that the Minister’s satisfaction that cancellation is in the national interest must be a satisfaction which is attained reasonably (see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [167] per Gummow and Hayne JJ, with whom Gleeson CJ agreed and Madafferi at [89] per French, O’Loughlin and Whitlam JJ).

13    Echoing these sentiments, Sankey J once observed in In Re Denaby and Cadeby Main Colleries Ltd & Ors (1927) 43 TLR 322 at 323, when considering whether the merger of certain coal mining companies was in the “national interest”, the following:

What constituted the national interest was a very different question, upon which opinions differed and which might become a political question more suitable to be decided by the High Court of Parliament than by the High Court of Justice.

14    In Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 Bromberg J with respect to the analogous power in s 501A(2) said at [43]-[44]:

The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [89] (French, O’Loughlin and Whitlam JJ); Huynh [(2004) 139 FCR 505] at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship (2011) 125 ALD 57 at [12] and [32] (Katzman J); Maurangi v Bowen [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gummow J); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

15    In Weti-Safwan, Jagot J was of the view that the foregoing observations of Bromberg J also applied to s 501BA. I respectfully agree.

The Minister’s Decision

16    The Minister made his decision to cancel the applicant’s Visa more than six months after the Tribunal’s decision which had been made on 26 June 2017. That timing is important to the applicant’s case. The Minister’s reasons for decision summarise the applicant’s history and considered the reasons of the Tribunal. It is unnecessary to set out that reasoning. The Minister also noted that the Tribunal had found that the applicant’s risk of reoffending was “very low” and that this “weighed in favour of revocation of his visa cancellation”. However, the Minister recorded that he had given “significant weight” to the Contravention Report he had received from the CCS. The Minister reasoned at [56]:

I note that upon his release from immigration detention, Broadmeadows Community Correctional Services attempted to contact [the applicant] for induction. [The applicant] was unable to be contacted and due to his disengagement a contravention proceeding has been initiated based on non-compliance. Broadmeadows Community Correctional Services have been unable to refer [the applicant] to relevant treatment providers for assessment or treatment and therefore this condition has not been fulfilled. [The applicant] has been unable to undergo urinalysis testing and therefore this requirement has not been fulfilled. [The applicant] was also required to attend a General Practitioner for the purpose of obtaining a Mental Health Care Plan. He has not done so and therefore has failed to meet this requirement. [The applicant] was also ordered to attend Corrections Victoria - Offending Behaviours Programs Unit for further assessment and treatment. He has failed to fulfil this condition. I note a request has been made that [the applicant’s] CCO be cancelled and he be resentenced on the original charges. I note it was reported [the applicant] is not considered as suitable for a further community based disposition at this time.

17    The Minister said that the applicant’s behaviour in the community had “been tested for some four months”. That observation was, for reasons which will be explained, of importance to the applicant’s case. The Minister found that the applicant had a history of contravening judicial orders and that this showed a disregard for judicial authority and law enforcement. He found at [60] that there was an ongoing “likelihood that [the applicant] will reoffend particularly if faced with stressors such as family issues and if he does not undertake treatment programs and assessment and/or treatment for his mental health”.

18    The Minister was of the view that even if he were to be satisfied that the applicant had not passed the character test and that it was in the national interest to cancel his Visa, he still retained a discretion as to what he should do. For that purpose, he considered the best interests of the applicant’s children, the expectations of the Australian community, the strength, nature and duration of the applicant’s ties to Australia and the existence of any impediments the applicant would face if he were to return to Turkey. These factors were then balanced against the Minister’s satisfaction that the applicant did not pass the character test and that it was in the national interest to cancel his Visa. At [100] of the Minister’s reasons for decision, he concluded as follows:

I find that the considerations favouring non-cancellation, in particular [the applicant’s] ties to Australia and the hardship on [the applicant’s] family members including his two minor children … as a primary consideration, are outweighed by the national interest considerations referred to above and I have decided to exercise my power under s501BA of the Act to set aside the decision of the Administrative Appeals Tribunal of 26 June 2017, and to cancel [the applicant’s] Class BC Subclass 100 Partner (Permanent) visa.

Applicant’s Submissions

19    The applicant provided particulars of his grounds of review in the following terms:

The circumstances of this case included:

i.    The rules of natural justice did not apply to the Minister’s decision under s 501BA(2) of the Act, and the applicant was not able to make submissions or present material to the Minister;

ii.    The Minister was aware that the information before him to him was likely to be incomplete or out of date (Minister’s reasons, para [11]);

iii.    In its 26 June 2017 decision to revoke the mandatory cancellation of the applicant’s visa, the Administrative Appeals Tribunal found ‘no evidence to support the concept that [the applicant] has anything other than a low risk of reoffending’ (Minister’s reasons, para [55]);

iv.    The Minister’s finding that ‘there is an ongoing likelihood that [the applicant] will reoffend’ (Minister’s reasons, para [60]) was based on the applicant’s non­attendance of two appointments on 6 July 2017 and 19 July 2017 within a community corrections order (the CCO), communicated in a report dated 30 August 2017 (affidavit of Lawson Bayly, page 113);

v.    There was no evidence of any ongoing breach of the CCO between the 30 August 2017 report and the Minister’s 9 January 2018 decision to cancel the applicant’s visa, and the Minister made no relevant enquiries into this matter.

20    Before me, Mr Wood of counsel appeared for the applicant and, with respect, presented the applicant’s case with commendable skill. In essence, he submitted that the Minister’s decision was legally unreasonable because, in the particular circumstances here, the delay between the date of the Contravention Report, which was August 2017, and January 2018 when the Minister made his decision, should have prompted the Minister to inquire again of CCS or the Department of Justice and Regulation before making his cancellation decision. Those circumstances included that I should infer that the reference in the Minister’s decision to the applicant being in the community for “four months” meant that the Minister had delayed consideration of the Departmental draft reasons for a further two months. If the Minister had made the additional inquiry in January, he would have discovered that the applicant had commenced some compliance with the CCO. Mr Wood did not contend that this would have compelled the Minister to a contrary conclusion. Rather, it was put that it could have led to a contrary conclusion and that was sufficient. In that respect, Mr Wood did not contend that the Minister’s conclusion about what was in the national interest was itself legally unreasonable. Instead, he submitted that the “manner” in which the residual discretion to cancel had been exercised was legally unreasonable. In that respect, he relied upon the observation of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [54]-[55] that legal unreasonableness can include “irrational finding” on the way to making a decision. Mr Wood also relied upon Gbojueh for the proposition that s 501BA(2) conferred on the Minister a residual discretion as part of a two-step process. That commenced with the Minister’s satisfaction about the matters in subs (2) and then moved to an exercise of discretion. That discretion had to be exercised reasonably. In Gbojueh, Bromberg J was concerned with s 501A(2) of the Act, which is in these terms:

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

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

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

if:

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

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

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

21    Bromberg J decided that s 501A(2) involved a “two stage process”, namely was cancellation of the visa in the national interest and secondly whether the Minister should exercise his discretion to cancel the visa. At [14], his Honour said:

The drafting of s 501A(2) utilises a well recognised format, requiring the satisfaction of prerequisite conditions (set out in ss 501A(2)(c), (d) and (e)) before the residual discretion is enlivened. One of the preconditions to the exercise of the discretion is the Minister’s satisfaction that the cancellation of a visa is in the national interest. The availability of the Minister’s discretionary power to set aside the original decision and to refuse to grant a visa or cancel a visa that has already been granted, is only enlivened when the Minister is satisfied of each of the preconditions to the exercise of the power. The question whether the discretion should be exercised does not arise until the Minister is satisfied that each of the preconditions are met, including that cancellation would be in the national interest. Decision-making in accordance with the structure of the section requires the Minister to consider the national interest precondition before considering the exercise of the residual discretion. A two step process is necessarily required of the Minister.

22    In support of the submission that the Minister erred in not making further inquiries, the applicant relied upon a thread of authorities which commenced with the judgment of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. In that case, his Honour said that a decision could be an improper exercise of power if it was reached in a manner devoid of plausible justification because the decision-maker had failed to make an obvious inquiry about a critical fact. Wilcox J said at 169-170:

A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision – which perhaps in itself, reasonably reflects the material before him – in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in an manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.

23    There was debate before me as to whether the test of legal unreasonableness was concerned with a failure to make an inquiry that, if made, would have altered the outcome or at least be decisive of it, as against a failure to make an inquiry that, if made, could have been relevant to the outcome. Mr Wood submitted that it was sufficient if the evidence or information could have affected a “critical” consideration. He referred to Luu v Renevier (1989) 91 ALR 39. In that case, a French citizen, who had a record in Australia for offences involving sexual assaults, sought permanent residence on the basis of the compassionate and humanitarian grounds in former s 6A of the Act. There was material before the decision-maker which should have prompted further inquiry concerning the Frenchman’s risk of recidivism. It was not sought. Davies, Wilcox and Pincus JJ said at 50:

One may say that the making of a particular decision was unreasonable -- and, therefore, an improper exercise of the power -- because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.

It seems to us that this is such a case. The question of recidivism was one of critical importance. It was one of some complexity, requiring the best possible medical advice; especially having regard to the importance of the decision to be made, both to Mr Renevier and his family and the Australian community. The medical material before Mr Luu was quite inadequate for the purpose of that decision, yet no attempt was made even to obtain a report from the psychiatrist known to be attending Mr Renevier, still less to obtain the opinion of a specialist endrocrinologist, such as Dr Perry-Keene. Had that course been taken, and yielded the information which was placed before the primary Judge, the conclusion could not rationally have been reached that there was a real risk of recidivism by Mr Renevier.

Mr Wood emphasised the phrase “likely to be of critical importance”.

24    In Minister for Immigration and Citizenship v Le (2007) 164 FCR 151, the issue for determination was whether the Tribunal had acted legally unreasonably, in the particular circumstances of that case, by not making certain inquiries of the Minister’s delegate about his interview with Ms Le. At [63], Kenny J said:

The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterized as so unreasonable that no reasonable decision-maker would proceeded to make the decision without making the inquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 8 FCR 167 (Videto) at 178 per Toohey J; Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ (Luu v Renevier); Detsongjarus v Minister for Immigration and Ethnic Affairs (1990) 21 ALD 139 (Detsongjarus) at 143 per Pincus J; Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571 at 579 per Ryan and Finkelstein JJ (Yang). This proposition is also discussed in other cases, such as Li v Minister for Immigration and Multicultural Affairs [1997] FCA 289; (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J. In this circumstance what vitiates the decision is the manner in which it was made. Since this is a limited proposition, it does not conflict with the larger statement that the Tribunal is under no general duty with respect to making enquiries: see Prasad at 169-170 per Wilcox J and Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24; (2002) 120 FCR 48 at 73-74 per Allsop J; but contrast SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [20] - [22] per Edmonds J.

Describing at [77] the case as “rare and exceptional”, Kenny J found that the Tribunal had not acted in a legally reasonable way. Her Honour said at [78]:

These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal’s review. Of course, once the Tribunal received this information, it was bound to deal with it as the Act required and the ultimate decision on the merits of Ms Le’s application was a matter for it to decide in conformity with the Act and the Regulations.

25    The applicant emphasised the phrase “at least some relevant information”.

26    In Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15, the issue for determination was whether the Refugee Review Tribunal had acted legally unreasonably by not making its own further inquiries into the authenticity of certain documents relied upon by the respondent and which were said to be forgeries. At [16], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

SZIAI complained that failure by the Tribunal to inquire rendered its decision “manifestly unreasonable”. That complaint involves several steps and assumptions. Was there an obligation or duty imposed by the Migration Act to make the inquiries in question? If so, was there deficiency in process which was so linked to the decision reached as to make it manifestly unreasonable?

Their Honours observed that the term “duty to inquire” was apt to “direct consideration” away from the issue for determination. Specifically, their Honours said at [25]-[26]:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. …

(footnote omitted)

See also Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [49] per Nettle J.

27    Mr Wood submitted that the Minister’s failure here to obtain an updated report was an obvious inquiry about a critical fact the existence of which was easily ascertainable. The applicant’s compliance with the CCO was an essential matter; it was central to the Minister’s assessment of the risk that the applicant could reoffend. An update, it was said, could easily have been secured. This inquiry was “obvious”, it was said, because of the great delay between the date of the Contravention Report in August 2017 and the date on which the Minister made his decision. It was also “obvious” because the CCO imposed obligations on the applicant which were ongoing during the two-year period of its application. In that respect, relying upon Luu and Le, Mr Wood submitted that he did not need to demonstrate that any information that might have been obtained in this way in January 2018 would have altered the outcome here. It was sufficient that it could have affected the way in which the Minister balanced the factors for and against cancellation of the Visa. In Mr Wood’s submission, the evidence concerning the applicant’s compliance with the CCO towards the end of 2017 fell into this category.

28    In his written submissions, the applicant also contended that the Minister’s decision was legally unreasonable because it was based on a fundamentally wrong fact, namely that the applicant had been out in the community for four months. Before me, that submission was only faintly pressed.

Minister’s Submissions

29    The Minister submitted that the applicant’s expression of the applicable legal test of unreasonableness was mistaken. Ms Gory of counsel, who appeared for the Minister, submitted that the content of the test for the purposes of s 501BA did not impose upon the Minister any duty or obligation to make inquiries. In that respect, she emphasised that the cases relied upon by the applicant, such as Luu and SZIAI, were cases concerning judicial review of the decision making processes of tribunals: cf Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202 at [130]. For the purposes of delimiting here the area of “decisional freedom” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] per French CJ), Ms Gory highlighted:

(1)    the exclusion of the rules of natural justice by s 501BA(3);

(2)    the reposing of the power of cancellation in the Minister “personally”;

(3)    the inherently political nature of deciding what is in the national interest; and

(4)    that no merits review of the Minister’s decision is available.

30    In that respect, Ms Gory rejected the existence of a residual discretion which was a separate and distinct step which needed to be considered by the Minister once she or he had become satisfied of the matters set out in s 501BA(2). As I understood it, Ms Gory was not contending that once satisfied of the matters required by s 501BA(2), the Minister had an obligation to cancel the Visa: cf Finance Facilities Pty Ltd v Commissioner of Taxation (1971) 127 CLR 106. Rather, I was urged to read the word “may” as connoting the conferral of authority or power.

31    Ms Gory relied upon several passages from the judgment of Gageler J in Li, where his Honour said that the test of legal reasonableness is stringent and observed that special difficulties arise where the power involves questions of public policy. His Honour said in Li at [108]:

Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. … [one of which is] the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.

32    At [111] in Li, Gageler J also observed:

It has nevertheless been observed that “in practice the comparative familiarity of an appellate court with judicial discretions and the usual confines of a judicial discretion make the appellate court more sensitive to an unreasonable exercise of discretion and more confident of its ability to detect error in its exercise”. That is because it is “harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience”. Similar observations have been made as to the inability of a court “effectively” to review a state of satisfaction forming a pre-condition to an exercise of a statutory power or performance of a statutory duty “where the matter of which the [repository] is required to be satisfied is a matter of opinion or policy or taste”.

(Footnotes omitted and emphasis added.)

33    Subsequently, in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [52]-[53] Gageler J said:

Expression of the standard of legal reasonableness in terms of the minimum to be expected of any “reasonable repository of the power” in the circumstances of the impugned decision or action has the benefit of emphasising both the “extremely confined” scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words.

Whatever room might remain for argument about the most appropriate expression of the standard of legal reasonableness, however, the nature of legal unreasonableness should be taken to be settled by the explanation of it in Quin. The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power. The implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds. The presumption prevails to condition the exercise of the power on the repository complying with the standard of legal reasonableness absent statutory indication that the repository must meet some higher standard (an example of which is where the repository is restricted to exercising the power only on reasonable grounds) or will sufficiently comply with the statute by meeting some lower standard (an example of which is where the statute requires no more than that the repository exercise the power in good faith and for a purpose permitted by the statute). Where the presumption prevails so as to condition the exercise of the power on the repository complying with the standard of legal reasonableness, a decision made or action taken in purported exercise of a statutory power in breach of the standard of legal reasonableness is a decision or action which lies beyond the scope of the authority conferred by the power.

(Footnotes omitted.)

34    The Minister also relied upon the recent decision of Siopis J in Farah v Minister for Immigration and Border Protection [2018] FCA 461. Like the case before me, Farah concerned an exercise of the power contained in s 501BA following receipt of a report of the Adult Parole Board that the applicant in that case had breached his parole conditions. Siopis J rejected the submission that the Minister had acted in a legally unreasonable way by not making a formal inquiry of the Board as to the basis of its report. Siopis J said at [48]:

The question of whether the Minister acting under s 501BA(2) of the Migration Act, is under a duty to carry out a reasonable inquiry to ascertain facts which were not before the Tribunal and upon which he or she relies to set aside the Tribunal decision, when he or she has not afforded the applicant natural justice, is a large question.

Siopis J did not ultimately need to answer that “large question”.

35    Besanko J considered s 501BA in Ibrahim v Minister for Home Affairs [2018] FCA 1592. Amongst other errors contended for by the applicant in that case, it was said that the Minister had acted in a legally unreasonable way because the applicant had not been asked to make submissions about the application of the provision. His Honour summarised this argument in the following terms at [39]:

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

36    Besanko J rejected the contention that the Minister had acted unreasonably. Critically, at [42] his Honour accepted that the Minister had a “capacity” to invite submissions, but that this was a course the Minister was not “bound to consider”. His Honour said at [44]:

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

The Minister relied upon this passage for the proposition that the Minister here was not under any duty to make inquiries.

37    I note that the applicant does not accept the relevance of this case. He said that the issue here is different because the Minister had elected to make the relevant inquiry concerning compliance with the CCO.

38    The Minister also submitted that s 501BA largely left it to him as to how he should exercise the power reposed in him (see Gbojueh, supra), and that, as such, he could adopt any decision-making processes subject only to:

(1)    the need to act in good faith and for a proper purpose; and

(2)    that satisfaction of the two jurisdictional facts upon which the power is predicated (failure of the character test and the national interest) must not be attained in a legally unreasonable way. That is, the Minister’s satisfaction as to these matters must not be one which no rational or logical decision-maker could have arrived at on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ.

39    Even if there was here a potential duty to inquire, the Minister submitted, in the alternative, that in the circumstances of this case that duty was not enlivened. Seeking an update from the CCS or the Department of Justice and Regulation was not, it was contended, an “obvious inquiry”. There was, it was submitted, nothing in the Contravention Report that put the Minister on notice of the need for further inquiry; the case, in that respect, was quite unlike Luu or Le.

40    It was also submitted that it would only be legally unreasonable to decline to make an inquiry if the outcome of such an investigation would lead to material which would be critical or decisive of the final outcome; mere relevance of material to an outcome was not sufficient. This stricter test, it was said, better reflected the stringency of the test of legal unreasonableness. Thus, in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167, the test was expressed by Toohey J as a failure to consider details that “if known must have played an important part in” consideration of the application. In Prasad at 169 the test was expressed perhaps more narrowly as an unreasonable failure “to ascertain relevant facts which [the decision-maker] knew to be readily available to him”. The Minister also relied upon the language used to express the applicable test from Luu at 50 where the Court said:

… one may be able to say that a decision is unreasonably made were, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.

The Minister emphasised the word “likely”.

41    In Tickner v Bropho (1993) 40 FCR 183, Black CJ held that a certain decision not to make a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), involved an exercise of power that was unreasonable. That was because the Minister should not have exercised that power without first obtaining information as to the status of certain development proposals under the Aboriginal Heritage Act 1972 (WA). Black CJ said at 199:

It should be inferred that up-to-date information about a matter that went directly to the fundamental basis for the Minister’s decision was readily available to him for the asking. Given the crucial importance of that information and the serious prospect of a fundamental change in the situation with regard to the protection of the site under state law, the making of the decision to refuse the s 9 application without obtaining up-to-date information was, I conclude, an improper exercise of the Minister’s power. It was improper because the making of the decision involved an exercise of power that was unreasonable …

The Minister emphasised the phrase “serious prospect”. Finally, the Minister also relied upon the decision of the High Court in SZIAI and the passages at [25]-[26] set out above. The Minister’s contention was that for a failure to inquire to be legally unreasonable it must “supply a sufficient link to the outcome” such that it could have yielded a “useful result”.

42    Here, had the Minister updated the Contravention Report, no “useful result” would have been yielded, according to the Minister. The applicant may have commenced some degree of compliance with the CCO, but this could not alter the historical fact that he had been in breach of the CCO and had still, by the end of 2017, failed to commence to undertake medical and like treatment. His compliance was tentative and would have made no difference to the outcome. In that respect, the applicant did not dispute that a decision to cancel the Visa based only upon the historical breaches would have been legally reasonable if it had, for example, been made in August 2017.

Consideration

43    The following principles are of assistance in the disposition of this application for review:

(1)    First, by its terms s 501BA does not impose on the Minister any express obligation as to how he or she is to be satisfied of the preconditions to the exercise of the power to cancel a visa. Generally speaking, it is a matter for the Minister to consider such material and to make such inquiries that will permit him or her to reach the required state of satisfaction (see Carrascalao; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; Gbojueh, supra).

(2)    Secondly, the Minister in reaching that required state of satisfaction is not acting as a tribunal of review.

(3)    Thirdly, it was accepted by the Minister that it should be implied from the function and purpose of s 501BA that Parliament intended that the Minister reach his state of satisfaction in a legally reasonable way.

(4)    Fourthly, legal unreasonableness is invariably fact dependent and requires careful evaluation of the evidence: SZVFW at [84] per Nettle and Gordon JJ.

(5)    Fifthly, the evaluation of whether a decision was made within the boundaries of power (the limits of “decisional freedom”) is conducted by reference to the relevant statute, its terms, scope and purpose in the factual and legal context of the decision in question, as well as from the values drawn from the common law, in particular, of reasonableness: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [7]; SZVFW at [59] per Gageler J, [79] and [88] per Nettle and Gordon JJ, [135] per Edelman J.

(6)    Sixthly, the statutory scheme here does not suggest that there exists any independent and distinct discretion in s 501BA(2), in addition to the express requirements of that provision, operative as an additional step to be satisfied, and whose exercise is to be informed by ordinary principles of administrative law. The phrase “may set aside” in s 501BA(2) is apt to refer to the conferral of power which can be personally exercised so long as the Minister’s state of satisfaction as to each of the two jurisdictional matters found in subs (2) is validly reached. It is the formation of that state of satisfaction which must be completed in a legally reasonable way. The statutory architecture here is relevantly analogous to s 501CA(4) where the Minister “may” revoke a cancellation decision. In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, Colvin J said at [73]-[74]:

Finally, if the Minister is satisfied that there is a reason why the cancellation decision should be revoked then, given the way in which s 501CA(4)(b) is expressed, the Minister must revoke. As the failure to meet the character test will be the only reason why a person’s visa will be revoked under s 501(3A), it would be strange if the Minister was satisfied for the purposes of s 501CA(4)(b)(i) that the person passed the character test, yet there remained a discretion whether to revoke. Such a construction would mean that the power to revoke could be withheld even though the Minister was satisfied that the basis on which the visa had been cancelled was not actually satisfied. Equally, it would be strange if the Minister found that there was another reason for the purposes of s 501CA(4)(b)(ii) why the original decision should be revoked, but nevertheless retained a discretion to refrain from revoking the cancellation of the visa.

Therefore, the opening words to s 501CA(4) are in all likelihood an example of those cases where ‘may’ means ‘must’: Marzano [(2017) 250 FCR 548] at [31]; Julius v Lord Bishop of Oxford (1880) 5 App Cas 214; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134-135, 138-139 and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [38]. If there remains a discretion once the Minister is satisfied as to one of the matters in s 501CA(4)(b) it would be a very narrow one that, in most circumstances, could not be reasonably exercised by refusing to revoke the original decision to cancel the visa.

Reeves and Rangiah JJ agreed with Colvin J. In my view Colvin J’s observations apply with equal force to the use of the word “may” in s 501BA(2), notwithstanding the observations of Bromberg J in Gbojueh. In my view, and with respect, I am obliged to apply the reasoning of Viane. There is thus no residual discretion and no two-step process: cf Cumins v Federal Commissioner of Taxation [2007] FCAFC 21; 66 ATR 57 at [41] per Ryan, Tamberlin and Middleton JJ. The absence of such a residual discretion, however, does not deny the obligation on the part of the Minister to reach the required states of satisfaction under s 501BA reasonably. As Gageler J observed in Li at [90]:

Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty.

(Footnote omitted.)

(7)    Seventhly, s 501BA is a potential final step in a process that commences with the automatic cancellation of a visa under s 501(3A) of the Act because a person has not passed the character test in the prescribed way; that is followed by the giving of an invitation pursuant to s 501CA(3) to that person to make representations to the Minister about the revocation of the cancellation decision; that is then followed either by a decision not to revoke the original cancellation decision pursuant to s 501CA(4) or by a decision to revoke the original cancellation decision; if the former there may be review of the merits of the decision in the Tribunal or judicial review of the decision in this Court (depending on who exercised the power); it is only when the merits of an application for revocation have been reviewed by a delegate of the Minister or by the Tribunal in favour of an applicant that the power conferred by s 501BA is enlivened for the first time. In other words, the power is only exercisable following a decision reached on the merits in favour of an applicant. Grounded thereafter in part on the personal judgement of the Minister as to what is in the “national interest”, I would characterise the power conferred by s 501BA as one of Ministerial intervention to be exercised when the Minister judges it to be in the “national interest” and is satisfied that the applicant fails the identified parts of the character test. As such, it may not necessarily be directed at the same considerations considered for the purpose of s 501CA(4), such as of the best interests of any children, the expectations of the Australian community, the ties to Australia, and the like. It may be concerned, as here, with new or fresh evidence, or with general political oversight of administrative review. For that the Minister is accountable to the Houses of Parliament. In that respect, it is notable that the power is not engaged where a court has quashed a decision of a delegate or the Minister in judicial review proceedings.

(8)    Eighthly, it follows from the foregoing, and from what was said in Carrascalao, that the boundaries of decisional freedom should be wide and not narrow in the exercise of the power under s 501BA. As Wigney J said in Uriaere v Minister for Home Affairs [2018] FCA 2084, at [48]-[50]:

48    As for whether the decision could be said to be “plainly unjust”, the subject matter, scope and purpose of the Act, and s 501BA in particular, would tend to suggest that the area of decisional freedom in relation to decisions under s 501BA is very broad indeed. While many decision-makers would not have made the same decision as the Minister, as perhaps evidenced by the Tribunal’s decision, it cannot be concluded that the Minister’s decision was outside the area of decisional freedom. It accordingly could not be said to be plainly unjust.

49    In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, the Full Court said (at [103]):

Parliament has entrusted the power to cancel a visa on character grounds under s 501(2) of the Act to the Minister. Where the Minister exercises that power personally, Parliament has expressly provided for no merits review of that decision, unlike the situation which prevails if the decision is made by the Minister’s delegate. In such circumstances, the Court must be astute to ensure that it is not seen to engage in a form of impermissible merits review under the guise of the legal unreasonableness ground of judicial review. In such circumstances, one would expect (consistently with the observation of Gageler J in Li at [113]) that in the case of decisions made by the Minister personally, intervention on the ground of legal unreasonableness would be fairly rare and would only occur in relatively clear cases. This was not such a case.

50    The same applies to the Minister’s exercise of power under s 501BA of the Act …

I respectfully agree with his Honour. It follows that the observations of Gageler J in Li at [108] and [111], supra, are applicable. Parliament has reposed the power of intervention in the Minister personally and not in the Court. The Minister must be satisfied that cancellation is in the national interest. The Minister must decide when to intervene. Contrary to the submission of the applicant, the exclusion of the rules of natural justice, in the specific statutory context here, does not confine the boundaries of power for the purposes of determining the content of the implied requirement that the power be exercised reasonably. Rather, the exclusion of the rules of natural justice makes the Minister’s accountability to Parliament all the more important.

(9)    Ninthly, I do not think it is of assistance to ask, in abstract form, whether there was or was not here a duty to inquire, or whether the test should turn upon whether fulfilment of such a duty “could have” altered the outcome, or “would have” been decisive or critical of the ultimate result. Generally speaking, there is no duty on an administrative decision-maker to inquire or conduct investigations, save in the limited circumstances described by the High Court in SZIAI; Westlake v Attorney-General [2017] FCA 1058 at [27] per Bromwich J; Gondarra at [128] per Kenny J; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [48] per Rares and Robertson JJ. Prescriptions or formulae that make distinctions between what “could have” or “would have” occurred are not apt to define the evaluative analysis a court must undertake with respect to the particular facts before it in determining whether the Minister’s state of satisfaction for the purposes of s 501BA was reached in a legally unreasonable way. Having said that, I accept that the obligation to exercise the power in s 501BA in a legally reasonable way could, in an extreme case, require a decision-maker to make an inquiry. The content and nature of that inquiry would turn upon the particular applicable facts.

44    As already mentioned, the applicant’s case based upon legal unreasonableness was put in two ways. First, it was said that the decision was unreasonable because it was based upon an “undeniably errant finding as to the period of time that had elapsed since the Tribunal’s decision made on 26 June 2017”. This ground was not pressed at the hearing. In my view the mistaken reference to the applicant having been on release for a period of four months, was not a significant or material error of fact. It was a mistake made within jurisdiction having regard to the broader boundaries of decisional freedom conferred by s 501BA. It was not material because, in my view, the Minister must be taken to have known when he made his decision in January 2018 that the applicant had been released from detention in June 2017. His record of decision records the fact of the issue of a visa to the applicant at that time.

45    Secondly, Mr Wood submitted that it was unreasonable for the Minister to have failed to obtain an update about the applicant’s compliance with the CCO. I respectfully agree with Mr Wood that the Minister should have obtained an update directed to the applicant’s compliance with the CCO before making his decision in January 2018. However, that criticism does not sound in jurisdictional error. It went, in my view, to the manner in which the Minister exercised the power in s 501BA and fell within the broader boundaries of decisional freedom conferred upon him by that provision. The Minister’s failure to obtain an update, notwithstanding a delay of six months, was not an abuse of his power and did not take what he did beyond power. It was imprudent but was not, I find, legally unreasonable. That is not to say that there may not be cases where extreme delay in the exercise of a power will require a decision-maker to seek an update of the evidence before her or him if the power is to be exercised reasonably. Each case, however, will turn on its facts and will require the Court to “evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful”: Stretton at [12] per Allsop CJ.

46    The applicant’s reliance upon Prasad, Luu, Le and SZIAI, does not justify any contrary conclusion. That is because, in the particular circumstances of this case, the need to make a further inquiry was not so “obvious” as to render the decision one made beyond the boundaries of decisional freedom.

47    In that respect, I otherwise accept Mr Wood’s submission that I should infer that the Minister probably received a Departmental draft of the decision four months after the applicant’s release from detention. Thereafter, there was about another two month delay before the Minister reached his decision. That delay, whilst regrettable, was not extreme. Nor was it irrational or obviously disproportionate for the Minister to fail to obtain an update from the CCS. There was nothing in the Contravention Report which put the Minister on notice that the applicant’s compliance might improve over the course of six months, although that possibility should have occurred to the Minister. Again, for that oversight, he is accountable to Parliament.

48    For the foregoing reasons, the application should be dismissed with costs.

Associate:

Dated:    14 February 2019