FEDERAL COURT OF AUSTRALIA

SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s decision dated 12 July 2019 be set aside.

2.    Within seven days hereof, the parties are to seek to agree an order as to costs and, if they are unable to agree within that time, each is to file and serve an outline of submissions not exceeding three pages stating their respective positions on costs.

3.    If necessary, the question of costs will be heard and determined on the papers and without a further oral hearing.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    By a second further amended originating application dated 19 November 2019, the applicant seeks judicial review of the Minister’s personal decision under s 501A(2) of the Migration Act 1958 (Cth) (Act) to set aside a decision dated 23 November 2018 of the Administrative Appeals Tribunal (AAT) and refuse the applicant’s visa application. The AAT had decided, contrary to an earlier decision of the Minister’s delegate, not to exercise the power conferred by s 501(1) to refuse to grant the applicant a protection visa. The AAT set aside the delegate’s decision and remitted the matter for reconsideration with a direction that the discretion under s 501(1) be exercised in the applicant’s favour so that he be granted a protection visa. The Minister overruled this decision under s 501A(2), by setting it aside and refusing the applicant’s application for a protection visa.

2    As will emerge, the Minister’s discretionary power under s 501A(2) is only enlivened if (relevantly):

(a)    the Minister reasonably suspects that the person does not pass the character test, as defined by s 501;

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

(c)    the Minister is satisfied that refusing the visa is in the national interest (emphasis added).

3    The applicant presses four grounds of judicial review (grounds 2, 3, 4 and 5). They are that the Minister’s decision was legally unreasonable, relied on an error of fact which affected the Minister’s exercise of jurisdiction, proceeded on an incorrect construction of the expression “national interest” in s 501A(2)(e) and was arrived at without the Minister engaging meaningfully with the applicant’s submissions. Ground 1 was not pressed.

4    It might be noted that this proceeding initially began on 13 June 2019 as an application for judicial review alleging that, after the AAT’s decision, there had been an unreasonable delay in making a decision with respect to the applicant’s protection visa application. Before that application was heard, on 12 July 2019 the Minister exercised his personal powers under s 501A(2), which decision now gives rise to the present proceeding.

Summary of background facts

5    The applicant is a 61 year old Iraqi national. He has been in immigration detention for almost seven years. His is a somewhat unusual migration history in that he has arrived in Australia as an undocumented or unauthorised maritime arrival on two separate occasions. The first occurred in 1999 after he arrived here with the assistance of a people smuggler. He arrived using a different name. On 24 May 2000, he was granted a temporary protection visa, which ceased on 16 May 2003. On that day he was granted a further temporary protection visa. On 7 January 2003, he was charged with the offence of having a false instrument with intent to use. On 2 August 2003, he was charged with breaking and entering a building, destroying or damaging property, common assault, driving with a licence expired less than two years before first offence and driving with high-range prescribed content of alcohol. On 21 May 2003 he was convicted in the Local Court on three counts of having a false instrument with intent to use, for which he was sentenced on each count to 12 months imprisonment. The applicant lodged a severity appeal and was released on bail pending the appeal.

6    Prior to the appeal hearing, the applicant departed Australia using an assumed identity and the New Zealand passport of a friend. He returned to Iraq. On 16 March 2005, his temporary protection visa ceased.

7    On 20 July 2009, the United Nations High Commissioner for Refugees (UNHCR) recognised the applicant and his five sons (including his two minor sons, then aged 8 and 7 respectively), as refugees.

8    On 14 December 2012, the applicant returned to Australia, together with his two minor sons, using the services of a people smuggler. The Minister found that the applicant had again used his friend’s New Zealand passport. The Minister now accepts that this was in error and that in fact the applicant used his own Iraqi passport. This error of fact provides the basis for ground 3.

9    The family was initially detained on Christmas Island and was then held in other immigration detention centres on the mainland. While in immigration detention, the applicant’s two young sons were sexually assaulted by another minor detainee.

10    After the sexual assaults occurred, on 6 August 2015, the Minister exercised his power under s 197AB to allow the two minor sons to be transferred to community detention, but the applicant remained in detention.

11    On 13 October 2016, the applicant applied for a temporary protection visa for himself and his two minor sons. This application was refused on 22 March 2017. The matter was referred to the Immigration Assessment Authority (IAA) and, on 10 May 2017, the matter was remitted for reconsideration. On 19 December 2017, the applicant’s two minor children were granted temporary protection visas. They currently live in community detention. Their natural mother (the applicant’s second wife) has emigrated to Finland, has her own new family and has had no contact with the two boys for many years. The applicant’s first wife (whom he divorced) lives in Australia, as do the three adult sons of that marriage. The fourth child of that marriage, a daughter, remains in Iraq with her family.

12    On 31 August 2018, the applicant’s application for a temporary protection visa was refused by the Minister’s delegate. As noted above, on 23 November 2018, the AAT set aside that decision and remitted the visa application to the Department for reconsideration with a direction that the discretion under s 501(1) of the Act be exercised in the applicant’s favour.

13    This is the decision which was set aside by the Minister personally on 12 July 2019 and is the subject of the present judicial review proceeding.

14    As in all judicial review proceedings, close but fair attention must be paid to the primary decision-maker’s reasons for decision where they are available, as is the case here. Before summarising those reasons, I will summarise the key parts of the AAT’s reasons for setting aside the delegate’s decision.

AAT’s reasons summarised

15    The Deputy President summarised the applicant’s background at some length, parts of which are outlined above and need not be repeated.

16    As to the applicant’s convictions in May 2013, the Deputy President said that the false instruments were three false credit cards and two foreign photo ID cards, which the applicant did not use but was charged with the intention of doing so. He described the applicant’s activity as “serious” and noted that there were only “scant records of the hearing” before the AAT. The Deputy President noted the applicant’s evidence before him that he was innocent of the charges and disputed the evidence which convicted him in 2003, but concluded that as the applicant’s memory of events was not good he was not prepared to act on the denials of guilt. The Deputy President also noted the applicant’s evidence that at the time of the false instruments offences in 2003, he “was lonely and depressed, missing his wife and children [who remain in Iraq], and worried about their safety in Iraq”. The Deputy President said that he considered that “there is potentially something in this”.

17    The Deputy President stated that, at the time of the AAT hearing, the applicant had five sons living here in Australia, namely the three adult sons from the applicant’s first marriage who had been accepted in Australia as refugees in 2013 and the two minor sons from the applicant’s second marriage.

18    The Deputy President described the conduct giving rise to the other offences with which the applicant was charged in 2003, and his departure from Australia on 20 November 2003, while still on bail. The Deputy President described this conduct as “obviously very serious misconduct”. The Deputy President described how the applicant returned to Iraq on 30 November 2003 using his friend’s passport and discovered that his first wife had divorced him and remarried. The Deputy President described how the applicant and one of his sons by his first marriage were assaulted and kidnapped in Iraq in May 2009 and that the applicant fled Iraq shortly thereafter to Turkey, taking with him all of his sons, including the two minor children. A married daughter remained in Iraq.

19    The Deputy President noted that the applicant and his five sons (including the two minor children) were found in 2009 by the UNHCR to be refugees. By this time the applicant’s first wife had emigrated to Australia.

20    The applicant and his five sons applied for visas to come to Australia but, having had no response, in 2012 the applicant decided to return to Australia with the two minor children, then aged 5 and 6. As noted above, they arranged the trip with a people smuggler. It is well to set out [29] of the Deputy President’s reasons as it is relevant to the applicant’s complaint that the Minister erred in finding that the applicant had used his friend’s New Zealand passport when he returned to Australia in 2012:

By December 2012, the three arrived here as unauthorised maritime arrivals. The applicant again used his friend’s passport but disclosed to Border Protection officers that he had previously arrived her under another name in 1999, and disclosed the name under which he had previously arrived, and that he then had a temporary protection visa…

21    The Deputy President noted that the applicant’s three elder sons (who came to Australia in 2013 to join their mother after being granted visas) lived with their mother (the applicant’s first wife) in Sydney. The Deputy President noted at [31] that the three elder sons “are extremely close to their father and visit him at Villawood on average twice a week, usually with their two younger brothers”.

22    At [32] the AAT described the tragic sexual abuse of the two minor children while they were in immigration detention in Australia:

In 2015 the applicant discovered one of his two infant sons was being sexually abused by a male teenage detainee. The applicant entered the room in which they were all residing and found one of his sons undressed from the waist down, with another, older boy about to penetrate the son, with his penis erect. He called a Serco officer who confronted the boy and involved the local police. The boy was later taken into custody in the Northern Territory and remained in custody for some three months when he was put on trial. The applicant’s legal representative informed the Tribunal that the boy was acquitted at trial. There is no information about how that could have happened. The respondent has not suggested to the applicant that this very serious event did not occur as he has described it and the Serco officer, who would have had significant knowledge of the events has been identified by the applicant and not called by the respondent.

23    The applicant learnt subsequently that that his other son had also been sexually abused by the same person.

24    After noting that the two children, then aged 11 and 12, were severely traumatised by the sexual abuse, the Deputy President reiterated that they visited their father at Villawood three times a week and that he had provided them with mobile phones so that they can all frequently contact each other.

25    The Deputy President noted that, in 2015, the applicant appeared before the District Court on the false instrument convictions and that, having by then spent three years in immigration detention, Judge Sides (who was described as “a very experienced criminal judge”) varied the applicant’s sentence in a way which meant that his period in immigration detention was treated as though he had been in custodial detention.

26    The Deputy President then noted that, again in 2015, the applicant appeared before the Fairfield Local Court on the other offences he had committed in 2003, each of which was dealt with by way of a bond, save that in relation to:

(a)    the matter of driving with an expired licence, he was fined $400;

(b)    the offence of failing to appear in accordance with the bail undertaking, he was convicted with no other penalty; and

(c)    as to the driving with a high-range prescribed content of alcohol offence, he was disqualified for periods which had expired during his subsequent detention.

27    The Deputy President noted that, but for the applicant’s immigration detention, he would then have been at liberty in the community.

28    The Deputy President then turned his attention to other instances of alleged misconduct by the applicant while in detention. He noted that none of the complaints was made the subject of Court proceedings; that the applicant denied the veracity of all but one complaint and he was not cross-examined in the AAT to suggest otherwise. Correspondence from the Northern Territory Department of Children and Families tendered by the Department was described by the Deputy President “to be very vague and could cover a range of allegations made by the Department against the applicant, ranging from allegations of neglect to much more serious possible allegations”. As nothing was put to the applicant in cross-examination in the AAT on these letters the Deputy President put them to one side.

29    The applicant did not deny one allegation of misconduct by him in detention, relating to damage to Serco property on 19 December 2017. The Deputy President noted that this was the day on which the applicant learned that his two children had been granted protection visas, but that his application had been denied and that he was extremely upset.

30    After referring to relevant authorities, including Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 44 FLR 41, the Deputy President concluded at [48] that he was unable to be satisfied that the complaints by other detainees against the applicant were correct. He also noted that Serco had provided to the applicant a Certificate of Appreciation “in recognition of your support to Serco staff”.

31    It is evident that the AAT had the benefit of assessing the applicant’s character in person and that his two minor children also attended the AAT hearing. The Deputy President noted the evidence given by the minor children’s foster carer, who had known the applicant over three years, and who described him as “a very loving father who shows love and affection to them, contacting them multiple times” and that the two children “love him dearly” and pray for him be granted a visa so that they can have a normal family life. The Deputy President also took into account positive references from other persons, including the applicant’s three elder sons.

32    In addressing each of the three primary considerations in Direction 65, the AAT found that, insofar as protection of the Australian community is concerned, that, now aged 60 and with all his male children living in Australia, “the applicant has every incentive to remain in their company and the prospect that he might put himself at risk of further detention or refoulement to Iraq is remote” (at [62]). As to the best interests of the applicant’s minor children, the Deputy President said at [63] that this plainly provides “strong support” for the setting aside of the reviewable decision and that, in the Deputy President’s opinion, it was “very necessary in their interests for the children to be reunited with their father, as they strongly desire”. As to expectations of the Australian community, the Deputy President found that this consideration favoured affirming the reviewable decision.

33    The Deputy President then considered other relevant non-primary considerations before expressing his ultimate conclusion at [76]:

In weighing the various consideration (sic) in this case, I treat the best interests of the minor children as a factor which outweighs all of the other primary considerations and I treat the fact that the applicant is owed protection obligations which will in fact lead to the likely indefinite detention of the applicant unless the reviewable decision is set aside as a reason why the delegate should not have made the reviewable decision and why this Tribunal should now set it aside. To the extent that the decision in DMH16 deals with the matter in legal terms, I regard the non-refoulement obligations owed in respect of the applicant as another powerful reason to set the reviewable decision aside.

Department’s Brief and Minister’s reasons summarised

(a) Department’s Brief

34    The Minister tendered a copy of the Departmental Brief to the Minister in respect of his consideration whether to exercise his power under s 501A(2). It became Exhibit B in the proceeding. It is undated and unsigned. It includes a Departmental submission, draft statement of reasons, a Table of Attachments and copies of what was described as “Evidence and material for [SYLN]”.

35    Under the heading “Background” in the Departmental submission, there is a chronology of the applicant’s history with the Department, including the following entry:

14 December 2012    [SYLN] engaged the services of a people smuggler and returned to Australia on 14 December 2012 aged 56, as an IMA. He was accompanied by his two sons,… then aged eight, and… then aged seven. [SYLN] reportedly used the friend’s New Zealand passport. He disclosed the name with which he had previously arrived in Australia to Border Protection officers.

    (Attachment PP pages 7, 8)

36    This is relevant to judicial review ground 3. The source of this particular information was stated to be pages 7 and 8 of the AAT’s decision record (at [28]-[29]).

37    With judicial review ground 4 in mind, it is important to note the structure of the Department’s Brief and, in particular, that separate and distinct sections are devoted to the topic of the “National interest” and the Minister’s discretion.

38    After discussing “National interest”, the Department described the applicant’s criminal history, as well as what it described as his “[o]ther serious conduct”. Under the latter heading, after referring to the AAT’s decision record (which it referred to as “Attachment PP”), it was stated:

Using a false identity

36,    The AAT decision records states that on 20 November 2003, [SYLN] departed Australia on an assumed identity, reportedly using the New Zealand passport belonging to a friend. The AAT considered this to be serious conduct and stated “Escaping Australia in those circumstances without facing an appellate court and while on bail, is obviously very serious misconduct” (Attachment PP page 6),

37.    [SYLN] engaged the services of a people smuggler to return to Australia on 14 December 2012, and used the New Zealand passport that he has used to depart Australia in 2003. However, [SYLN] advised Border Protection officers that he had arrived in Australia in 1999 under another name (Attachment PP page 7, 8).

(b) Minister’s statement of reasons summarised

39    The Minister was obliged by s 501G of the Act to give the applicant a written notice that set out his decision, specifies the statutory provision under which the decision was made and “the reasons (other than non-disclosable information) for the decision” (see Minister for Home Affairs v Omar [2019] FCAFC 188 at [34(a)-(c)] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). The Minister signed the draft statement of reasons provided to him by his Department without any amendments. It is well to emphasise at the outset that the Minister’s reasons for decision are to be read fairly and not with an eye keenly attuned to the detection of error.

40    It is important to have regard not only to the content of the Minister’s statement of reasons, but also to its structure. The statement has four separate and distinct headings: namely “Character Test” ([9]-[12]), “National Interest” ([13]-[66]), “Discretion” ([67]-[112]) and “Conclusion” ([113]-[120]).

41    The following are the key relevant elements of the Minister’s reasons for refusing to grant the applicant a protection visa.

42    First, under the heading “Character Test”, the Minister stated that he reasonably suspected that the applicant did not pass the character test, nor did the applicant satisfy him to the contrary (s 501A(2)(c)-(d)). The Minister relied upon the fact that the applicant was convicted on 21 May 2003 of three counts of having a false instrument with an intent to use it and was sentenced to 12 months’ imprisonment, which meant that he had “a substantial criminal record” for the purposes of ss 501(6)(a) and (7)(c) of the Act. None of this is controversial.

43    Secondly, under the heading “National Interest”, the Minister acknowledged that the question of whether it was in the national interest to refuse the applicant a protection visa is separate and distinct from a question of whether or not the applicant passed the character test, and also that the “national interest” is a different concept to the “public interest”. The Minister noted the Full Court’s observations in Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326 at [86] (sic) that the question of what is, or is not, in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably. He then made reference to other legal authorities, including Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391, where Gaudron J said at [79] that the crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the Minister’s satisfaction that it is in the national interest that the person’s visa be cancelled.

44    Thirdly, after stating that he had had regard to the applicant’s representations regarding the construction of the term “national interest” and the supporting representations, the Minister then stated some significant matters at [19]:

I consider that matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of it. I also find that matters of national interest include a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated.

45    I have set out [19] in full because, as will emerge, the Minister contends in respect of judicial review ground 4 that, fairly read, it does not exclude the possibility that the Minister regarded the interests of the applicant’s minor children as also being a matter of national interest, with particular reference to the Minister’s use of the word “include” twice in [19].

46    Fourthly, the Minister then considered in some detail the applicant’s criminal and other conduct (including the use of a false identity and engaging people smugglers). Matters which the Minister considered demonstrated that the applicant’s criminal conduct was serious and that he had also engaged in other serious conduct may be summarised as follows (emphasis added):

(a)    the applicant’s conviction for the false instrument offence on 21 May 2003;

(b)    the applicant had also been convicted of several other offences committed in 2003, including common assault, driving with a high-range prescribed concentration of alcohol, breaking and entering a building and stealing goods with a value under $15,000, destroying or damaging property (three counts), driving without a licence and failing to appear in accordance with a bail undertaking;

(c)    while the applicant’s sentence appeal relating to the false instrument offences was on foot, he left Australia using a false identity;

(d)    the same false identity was used by the applicant when he returned to Australia on 14 December 2012, accompanied by his two minor sons. In particular, the Minister stated at [33] and [34] (emphasis added):

33.    The Administrative Appeals Tribunal (AAT) decision record dated 23 November 2018, states that on 20 November 2003, [SYLN] departed Australia on an assumed identity, reportedly using a New Zealand passport belonging to a friend, and returned to Iraq. Approximately nine years later, on 14 December 2012, [SYLN] returned to Australia, as an illegal maritime arrival (1MA), using the same false identity, and was accompanied by his minor children …

34.    Whilst I acknowledge that [SYLN] provided his real name upon arrival in 2012, I cannot minimise the gravity of conduct that involves the use of an assumed identity to enter and depart Australia;

and

(e)    the applicant engaged the services of people smugglers to enter Australia on two separate occasions.

47    The Minister explicitly stated at [38] that, in considering the matters of national interest, he had taken into account the seriousness of the applicant’s “criminal and other serious conduct” (emphasis added).

48    From [41] to [66], the Minister then addressed the topic of the risk the applicant posed to the Australian community. He described the applicant’s submissions and said he had considered them, but he noted at [46] that, while in immigration detention, the applicant had been involved in a large number of incidents of abusive and aggressive behaviour towards staff and other detainees, the most recent incident having occurred in 2018. The Minister concluded at [63] that the applicant had shown a propensity over a long period of time to engage in criminal or other serious conduct; there was a risk albeit a low risk, that he would reoffend (at [64]); and that if he did engage in further conduct of a similar nature (whether it be violence, fraud or conduct in breach of laws designed to protect Australia’s national interest), it could cause harm to the Australian community.

49    The Minister stated in [66] that, “having regard to the above, including his criminal history, his engagement in other serious conduct and the risk to the Australian community, I conclude that it is in the national interest to refuse to grant [SYLN’s visa]” (emphasis added).

50    The words in bold in the three paragraphs immediately above highlight the fact that the Minister regarded the applicant’s “other serious conduct” as forming part of his reasoning for concluding that it was in the national interest to refuse to grant the applicant a visa. That “serious conduct” included the Minister’s erroneous finding regarding the applicant’s use of his friend’s New Zealand passport and a false identity when he returned to Australia in 2012. It is to be recalled that the Minister explicitly emphasised at [34] of his statement of reasons that he could not “minimise the gravity of conduct that involves the use of an assumed identity to enter and depart Australia”. It is equally important to note the link between that “serious conduct” and the Minister’s finding that the applicant posed an unacceptable risk to the Australian community. These are all important matters concerning ground 3, as will be developed below.

51    Fourthly, having conducted that assessment of the national interest, the Minister then turned his attention under the heading “Discretion” to whether he should nevertheless exercise his discretion to refuse to grant the applicant a visa. The Minister proceeded on the basis that these were distinct stages, even though they also overlapped to some extent. It is well to set out [67] of the Minister’s statement of reasons which make clear that the Minister approached his decision-making function in a way which distinguished between his assessment of the national interest and the issue of his discretion, thereby reaffirming that he viewed the matters as distinct:

Having found that [the applicant] does not pass the character test and that it is in the national interest to refuse to grant [SYLN’s] visa, and having assessed the information set out in the minister submission and attachments, I considered whether to exercise my discretion to refuse to grant [SYLN’s] visa, taking into account factors that I considered weighed against and in favour of refusing [SYLN’s] visa. In making my decision I was mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia.

52    It was only in the context of considering whether or not to exercise his discretion that the Minister explicitly considered the best interests of the applicant’s minor children. He said he had treated their best interests as a primary consideration and concluded at [89] that it was in their best interests not to refuse their father a visa so that they could be reunited with him and “parented and supported” by him.

53    Other matters which the Minister took into account under the rubric of “discretion”, were the expectations of the Australian community, international non-refoulement obligations and the strength, nature and duration of the applicant’s ties to Australia.

54    Despite these matters, the Minister concluded that non-citizens who have engaged in conduct such as that engaged in by the applicant should generally not expect to be permitted to remain in Australia. He also concluded that the Australian community should not tolerate any further risk of harm and that that consideration outweighed the countervailing considerations.

55    Fifthly, the Minister then set out his conclusions in the final section of his reasons, under the heading “CONCLUSION”. It is well to set out [113] to [120] which record those conclusions (emphasis added in [120]):

CONCLUSION

113.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Act, (2) the national interest, and (3) all other evidence available to me, including evidence provided by, or on behalf of [SYLN].

114.    Having given full consideration to all of the information before me in this case, I reasonably suspect that [SYLN] does not pass the character test by virtue of s501(6)(a) with reference to s501(7)(c) and [SYLN] has not satisfied me that he passes the character test. Also, I am satisfied that refusal to grant [SYLN’s] visa is in the national interest.

115.    In considering whether or not to refuse to grant [SYLN’s] visa, I gave primary consideration to the best interests of [SYLN’s] two minor children, who are secondary applicants on [SYLN’s] Temporary Protection (Class XD) visa application, and have found that their best interests would be best served by not refusing the visa.

116.    I also considered the risk posed to the Australian community by [SYLN’s] continued presence in Australia, taking into consideration his criminal and other serious conduct engaged in.

117.    [SYLN’s] criminal history includes a violence offence and fraud, and he has also engaged in other fraudulent or dishonest conduct. Non−citizens such as [SYLN] who commit such offences or engage in such conduct should not generally expect to be permitted to remain in Australia.

118.    I find that the Australian community could be exposed to harm should [SYLN] reoffend in a similar fashion. I could not rule out the possibility of further offending by [SYLN]. The Australian community should not tolerate any further risk of harm.

119.    I found the above consideration outweighed the countervailing considerations in [SYLN’s] case, including the best interests of the affected minor children, who are dependents on his application, treated as a primary consideration, non-refoulement obligations, and impact on family members in particular his adult sons, and friends, I have also considered the hardship to be endured by his family, in particular his minor children who are dependents on his application. I have also considered the impediments he will face if he was subject to ongoing detention, and the impact this would have on his minor children and adult sons.

120.    I find that the considerations favouring non−refusal, in particular the best interests of the affected children treated as a primary consideration, and [SYLN’s] ties to Australia and the hardship on him and his family members, are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to refuse to grant [SYLN’s] application for a Temporary Protection (Class XD) visa under s 501A(2) of the Act.

Applicant’s four judicial review grounds

56    As noted above, the applicant pressed four grounds of judicial review. They are as follows. Ground 2 is that the Minister’s decision to refuse him a visa under s 501A(2) was legally unreasonable. The stated particulars in support of this ground are (without alteration):

a.    The Applicant has been in immigration detention since his arrival in Australia with his two minor sons on 14 December 2012.

b.    In 2015 the Applicant’s two minor sons were sexually assaulted multiple times by another detainee while in immigration detention in Darwin.

c.    On 10 May 2017 the Applicant and his sons were found to be owed protection obligations by the Immigration Assessment Authority.

d.    On 19 December 2017 the Applicant’s sons were granted temporary protection visas and subsequently released from detention. The Applicant’s sons have since remained in foster care.

e.    On 23 November 2018 the Administrative Appeals Tribunal (the Tribunal) set aside a decision of a delegate of the Second Respondent (the delegate) dated 31 August 2018, in which the delegate refused to grant the Applicant a protection visa under s.501(1) of the Act. The Tribunal remitted the matter for reconsideration according to law and with the direction that the discretion under s.501(1) of the Act was to be exercised in the Applicant’s favour.

f.    On 13 June 2019 the Applicant commenced proceedings in the Federal Court of Australia seeking relief for unreasonable delay on the part of the First Respondent in finalising his visa application.

g.    On 15 July 2019, the Second Respondent set aside the Tribunal’s decision and substituted a decision refuse to grant the Applicant a protection visa pursuant to s.501A(2) of the Act. This decision was made by the Second Respondent personally.

h.    At [12] of his decision, the Second Respondent stated that “I reasonably suspect that he does not pass the character test by virtue of s.501(6)(a) of the Act with reference to s.501(7)(c) of the Act and that [the Applicant] has not satisfied me that he passes the character test”. In making this finding the Second Respondent relied on evidence of the Applicant having been convicted of an offence on 21 May 2003, for which he was sentenced to a term of imprisonment for 12 months or more.

i.    The facts and circumstances relied on by the Second Respondent in satisfying himself as to the matters in s.501A(2)(c)-(d) had already been the subject of formal consideration by the delegate in the decision dated 31 August 2018, and by the Tribunal in its decision dated 23 November 2018.

j.    There was no evidence of new facts and circumstances arising in the period between 23 November 2018 and 15 July 2019 that could reasonably support a suspicion and satisfaction that the Applicant did not pass the character test for the purposes of s.501A(2)(c)-(d) of the Act.

57    Ground 3 is that the Minister relied on an error of fact which affected the exercise of his jurisdiction. As noted above, the error lies in the fact that the Minister referred in his statement of reasons to the applicant entering Australia on 14 December 2012 “using the same false identity” that he had used when he left Australia in 2003. The Minister relied upon his erroneous finding in concluding that the applicant had engaged in other serious conduct which demonstrated a pattern of fraudulent conduct.

58    Ground 4 is that the Minister misconstrued the meaning of the expression “national interest”. This was said to be reflected in the fact that the Minister’s assessment of the national interest was confined to the seriousness of the applicant’s conduct and the risk to the Australian community, without considering the interests of the applicant’s minor children and/or Australia’s compliance with obligations arising under the United Nations Convention on the Rights of the Child. The Minister did consider the interests of the minor children, but only in the context of whether he should exercise his discretion to refuse the applicant a visa and not in respect of his earlier assessment of the national interest.

59    Ground 5 is that the Minister failed to engage meaningfully with some of the applicant’s submissions. The applicant contended that the statement of reasons suffered from similar deficiencies to those which were the subject of the Full Court’s decision in Omar, with particular reference to the Minister’s repeated use of terminology such as “I have considered”, “I have taken into account”, “I have had regard to” and “I note”. Moreover, the applicant complains that the Minister failed to make clear findings in respect of specific submissions which were identified by the applicant in the particulars to ground 5.

Consideration and determination

60    To avoid adding unduly to the length of these reasons for judgment, I will address the parties’ primary submissions in this section.

(a) Relevant legislative provisions and some legislative history

61    Sections 501 and 501A need to be read together. Section 501(1) confers a discretionary power on the Minister or a delegate to refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test (which is defined in s 501(6)). The Minister also has either a discretion or a duty to cancel a visa in the circumstances specified in ss 501(2) and (3A) respectively. There is no reference in either of those provisions to the “national interest”. That expression does appear, however, in s 501(3), which confers a personal discretionary power on the Minister to refuse to grant or cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the refusal or cancelation “is in the national interest”. Natural justice does not apply to a decision made under s 501(3), but provision is made for the affected person to seek a revocation of the decision (s 501C).

62    Section 501A confers a personal power on the Minister to intervene and set aside or overrule a decision of either a delegate or the AAT which has been made under either ss 501(1) or (2). Because of its central significance, it is desirable to set out the relevant parts of s 501A:

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

(1)    This section applies if:

   (a)    a delegate of the Minister; or

   (b)    the Administrative Appeals Tribunal;

   makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

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

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

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

    if:

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

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

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

…

Minister's exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

Note 1:    For notification of decisions under subsection (2), see section 501G.

Note 2:    For notification of decisions under subsection (3), see section 501C.

63    As noted above, the Minister’s decision here was made under s 501A(2). In contrast with the position under s 501A(3), natural justice requirements applied to the Minster’s decision. The applicant was given an opportunity to make representations prior to the Minister deciding whether or not to exercise the power under s 501A(2). The applicant does not complain of procedural unfairness (see Durani v Minister for Immigration and Border Protection [2014] FCAFC 79; 314 ALR 130 and Jione v Minister for Immigration and Border Protection [2015] FCA 144; 232 FCR 120).

64    Section 501A was inserted into the Act in 1998 by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). It is one of several amendments which were intended to give the Government greater control over the entry into, and presence in, Australia of certain non-citizens who are unable to satisfy the Minister that they pass the “character test”. In the Second Reading Speech to the relevant Bill in the House of Representatives on 2 December 1998, the then Minister explained that the insertion in the Act of a Ministerial power to intervene or set aside AAT decisions was motivated by the fact that, over the previous year or so, the AAT had made a number of character decisions which were viewed as being “clearly at odds with community standards and expectations”. He stated:

… The AAT has found a number of non-citizens, who have been convicted of very serious crimes, to be of good character, and has ruled that they should be granted visas… [This has] alarmed the community, and I might say that the community, when they are aware of these decisions, hold the government and not the AAT responsible.

It is essential that the minister, acting personally, have the power to intervene and to set aside such decisions in the national interest. The minister should, however, continue to be required to table the making of any such decisions in the parliament. In other words, the accountability for a minister is to the parliament, and would be if he was making capricious decisions in this area.

65    Further amendments were made to s 501A by the Migration Legislation Amendment Act (No 1) 2000 (Cth), the effect of which was described by the Full Court in Madafferi at [19] to [23]. Those amendments corrected an error in s 501A(1)(c), as originally enacted, which wrongly suggested that the AAT had the power to grant a visa when reviewing a decision of the Minister’s delegate under s 501(1).

66    In Madafferi, the Full Court observed at [2] that the appeal there was “a sad and difficult case involving a young family and the need to balance concerns relating to the protection of the Australian community and the interests of individuals on the other hand”. The same may be said about the present proceeding.

(b) The grounds of review

67    It is convenient to now address the three judicial review grounds in turn.

A. Ground 2: Legal unreasonableness

68    Quite properly, the Minister did not contest that the exercise of his power under s 501A(2) is susceptible to review for legal unreasonableness. The relevant legal principles regarding this ground of review are relatively well settled. Many are summarised in cases such as Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29 at [63] to [66] per North, Kenny and Perry JJ; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [51]-[60] per Gageler J and at [88]-[96] per Nettle and Gordon JJ and Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 365 ALR 202 at [31]-[32] per Griffiths J (with whom Gleeson J agreed).

69    The applicant’s submissions on this ground described the alleged error in different ways. At times the applicant’s case was that the statutory precondition of the Minister’s satisfaction that refusal was in the national interest had not been reached reasonably (presumably alleging error of the kind found in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611). At other points, the applicant claimed the outcome of the Minister’s exercise of discretion to refuse the applicant’s visa application under s 501A(2) was unreasonable in the legal sense.

70    For the following reasons, legal unreasonableness on either basis has not been demonstrated in the circumstances here. First, I do not accept the applicant’s contention that the Minister’s statement of reasons does not disclose “an intelligible justification” for his decision. Putting aside the other grounds of judicial review raised by the applicant, the Minister has adequately explained why he considered that it was in the national interest not to grant the applicant a visa, for reasons which are summarised at [42] to [55] above.

71    Secondly, some might view the Minister’s decision as harsh or even unduly harsh but that is insufficient to warrant judicial intervention on the ground of legal unreasonableness, the limits of which must assiduously be observed to preserve and maintain the legitimacy of judicial review (see, for example, Stretton at [17], [21] and [23] per Allsop CJ, at [74] and [76] per Griffiths J and at [92] per Wigney J, with appropriate modification to take into account the differences between the Minister’s powers under ss 501(2) and 501A, including the presence of the expression “in the national interest” in the latter provision). The applicant’s legal unreasonableness case is, in substance, an impermissible attack on the merits of the Minister’s decision.

72    Thirdly, in response to some of the applicant’s specific contentions in support of this ground of review, I make the following observations:

    putting aside the Minister’s acknowledged error concerning the use of the friend’s passport and a false identity, the Minister clearly set out a range of matters relating to the applicant’s criminal history and other conduct which formed the basis for the Minister’s view that there was a risk, albeit a low risk, that he would reoffend and that this posed a risk to the Australian community;

    again putting aside the Minister’s acknowledged error, I do not accept the applicant’s contention that there was no evidence to support the Minister’s adverse findings;

    nor do I accept that the Minister’s decision usurped the role of the criminal justice system and effectively imposed a further penalty on the applicant (see the observations in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [47]-[52] per Kiefel CJ, Bell, Keane and Edelman JJ);

    it is significant that the Minister indicated that he had sought advice on “alternative management options” in the event that the effect of his s 501A decision was to result in either refoulement or indefinite detention;

    the Minister was well aware of the length of time the applicant had already spent in migration detention; and

    there is no reason in this case to doubt the genuineness of the Minister’s statement that he had given consideration to all the matters put before him on behalf of the applicant, including the sexual assault of his two sons while in immigration detention, favourable findings by the IAA, the sons’ migration history, the AAT’s decision, the proceedings in this Court as initially instituted and the nature and extent of the findings made previously by both the delegate and the AAT.

73    As stated in the first two bullet points in the previous paragraph, I have put to one side the Minister’s acknowledged error in explaining why I reject the applicant’s claim of unreasonableness with respect to the matters identified there. The Minister submitted that for the purposes of assessing the claim of legal unreasonableness based on outcome, the matter needs to be looked at as a whole, including the reliance which the Minister erroneously placed on the factual error concerning the use of the New Zealand passport and assumed identity in 2012. It is unnecessary to determine that contention in circumstances where the applicant did not submit that those particular factual errors were relevant to the claim of unreasonableness.

B. Ground 3 – Error regarding use of New Zealand passport and false identity

74    The Minister accepted that his decision relied in part on the AAT’s finding of fact that the applicant entered Australia on 14 December 2012 using his friend’s New Zealand passport. Significantly, the Minister also accepted that the finding was wrong. He contended, however, that this did not involve jurisdictional error. For the following reasons, I disagree.

75    First, the principle in Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346 supports this aspect of the applicant’s case.

76    The Full Court held there that the Minister committed a jurisdictional error in exercising his power under s 501A(2) in circumstances where the Minister acted upon incorrect details provided to him of the appellant’s drug use convictions and sentencing. The Department’s Issues Paper correctly identified that the appellant had been convicted of various offences and sentenced to a term of imprisonment of 6 years and 6 months, but the Issues Paper provided either incomplete or inaccurate information concerning other offences for which the appellant was convicted.

77    The Full Court held that the Minister failed to give requisite consideration to a matter which he was obliged to take into account under s 501A(2), namely an accurate statement of the appellant’s criminal record (at [7]-[8] per Black CJ and at [54]-[55] per Sackville J) . Chief Justice Black and Sackville J also held (Sundberg J dissenting) that the errors in the Issues Paper, which were adopted by the Minister, were material errors because if correct information had been provided to the Minister he may have taken a different view of the appellant’s risk of recidivism and thus possibly refrained from exercising his power under s 501A(2) of the Act.

78    In determining whether or not the Minister’s error was material to his decision, all three members of the Full Court agreed that the test is whether the appellant had been deprived of the possibility of a successful outcome and not whether the Minister would probably have reached the same result if the error had not occurred (see at [6] and [29] per Black CJ; at [64] per Sackville J and at [104] per Sundberg J).

79    The error in Lu did not mean that the appellant passed the character test because he did not have a “substantial criminal record” within the meaning of s 501(6)(a). Rather, the error related to the Minister’s exercise of his discretion under s 501A to cancel the appellant’s visa, which issue arose for determination if, and only if, the Minister reasonably suspected that the appellant did not pass the character test and that cancellation was in the national interest.

80    Justice Sackville (with whom Black CJ agreed) referred at [37] to the Minister’s counsel conceding that the “appellant’s criminal record…was a consideration that the Minister was bound…to take account ‘in the Peko-Wallsend sense’” and that counsel accepted at [38] that “errors in describing a person’s criminal record may result in a decision under s 501A of the Migration Act being affected by jurisdictional error…”. Justice Sackville added later in his reasons at [54] that he saw “no reason to doubt the correctness of the concession”. His Honour’s reasons for concluding that jurisdictional error existed in the circumstances of that matter are reflected in [55] of his reasons for judgment (emphasis added):

It is within the scope and purpose of s 501A(2) of the Migration Act, which allows the Minister to set aside the “original decision” in the circumstances identified in [53] above, that the Minister should have regard to the offences for which the person was convicted and the sentences imposed in respect of those offences. As Wilcox J observed in Huynh, at 136-137 [43], these are essential matters in assessing the degree of criminality in the offences and their significance in determining whether it is desirable to cancel the person’s visa and to remove him or her from Australia. In short, they indicate the seriousness of the person’s conduct and the threat he or she poses to the Australian community. It must be remembered that s 501A(2) confers a power on the Minister not merely to cancel a visa, but to set aside a decision of the AAT not to cancel the visa. It is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences. It follows that if the Minister fails to take into account a visa holder’s correct criminal record because the Department provides incorrect information, ordinarily the Minister will have failed to act in accordance with the requirements of s 501A(2) and therefore will have acted in excess of jurisdiction.

81    In Lu at [56], Sackville J added that if there is only a minor error relating to convictions or sentences this may not result in the Minister failing, in a relevant sense, to take account of that person’s criminal record as required by s 501A. His Honour explained at [60] why he considered that the error there was not of that character:

The erroneous information conveyed to the Minister and on the basis of which he was invited to act, suggested that the appellant had committed drug offences while in custody of such seriousness that a nine months sentence was warranted. The suggestion was strengthened by the statement in para 22 that the sentences (previously said to be nine months) were to be served cumulatively with the main sentence. The information given to the Minister did not identify the drug which was the subject of the 1993 and 1997 convictions. In fact, as we were told from the bar table, it was cannabis. The Minister might have assumed from the length of the sentence that the conviction related to heroin or some other so-called “hard” drug.

82    The Minister submitted that Lu was distinguishable and that the principle which it establishes is confined to the proposition that, in considering whether to exercise the power under s 501A(2), the Minister is required to consider the affected person’s criminal record, which is a mandatory relevant consideration. The Minister failed to comply with that requirement in Lu because what he considered was not the appellant’s criminal record as it contained material errors. The Minister submitted that Lu does not stand for “the broader proposition that any factual mistake along the way to considering the national interest leads to jurisdictional error”. The Minister emphasised that there was no analogy to be drawn with Lu in the present proceeding, as the Minister had in fact considered the risk posed by the applicant. The Minister added that acceptance of the applicant’s contentions in the present proceeding concerning the erroneous fact finding relating to the use of the New Zealand passport and an assumed identity would mean that well-established limitations on the scope of judicial review for fact finding (other than in respect of jurisdictional facts) would be circumvented.

83    I do not agree that the principle in Lu is so confined, nor that its application to the circumstances here would have the broader effect claimed by the Minister.

84    The first point is well illustrated by Bromberg J’s decision in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417 at [45], where the principle in Lu was applied in broadly not dissimilar circumstances to those here. There, Bromberg J described the potential for harm to the Australian community as one of the matters so central to the subject matter dealt with by s 501A(2) that it was a mandatory relevant consideration “both for the purpose of determining the national interest and the residual discretion” (at [45], emphasis added). The Minister’s error in Gbojueh was that, in assessing the risk the applicant posed to the Australian community, the Minister erroneously stated that the applicant had failed to participate in a rehabilitation program (when in fact he had done so as a condition of his parole) and that he had failed to participate in any further rehabilitation (when the applicant had explained to the AAT that he had been unable to do so after he was taken into immigration detention). The errors are identified at [65] of Gbojueh:

The extent of the applicant’s rehabilitation, was a factor the Minister was bound to take into account in considering the risk to the Australian community of allowing the applicant to remain. The Minister failed to do so on the basis of accurate information before him as to the applicant’s participation in rehabilitation programs. Having failed to take into account an accurate account of the applicant’s rehabilitation, the Minister ignored relevant material in a way that affected the exercise of his power.

85    Therefore, a factual error by the Minister in matters informing his consideration of the potential harm to the Australian community, which is a mandatory relevant consideration, may result in error of the kind identified in Lu. Notwithstanding this error, the applicant was unsuccessful in Gbojueh because the error was found in the circumstances of that case not to be material. It was not material because the Minister stated that any risk of the applicant re-offending was unacceptable.

86    The correctness of Gbojueh has been questioned (see MZAGK v Minister for Immigration and Border Protection [2014] FCA 1190; 226 FCR 311 at [36] per Tracey J), but the Minister did not contend that Gbojueh was plainly wrong. In the interests of judicial comity, I apply it to the circumstances here. It is evident from the Minister’s statement of reasons that the relevant factual error affected the Minister’s assessment of the national interest (see at [46]-[50] above). It appears that the error also affected the Minister’s consideration of his residual discretion (see at [67] and [116]-[118] of the Minister’s statement of reasons).

87    There can be no doubt that, in the present proceeding, the Minister took the relevant factually erroneous matters into account as part of the “serious conduct” which he found the applicant had engaged in separately from his criminal conduct. The Minister took this conduct into account in finding at [31] of his statement of reasons that the applicant’s “other serious conduct… demonstrates a pattern of fraudulent conduct”. It is significant that this “serious conduct” formed part of the Minister’s reasoning as to why he considered that the applicant posed a risk to the Australian community.

88    Although what is in the national interest in a particular case is left largely to the Minister (Madafferi at [89]), it is relevant that the Minister determined the applicant’s “serious conduct”, which he had found had taken place, went to his satisfaction that refusal was in the national interest in this case. Applying Sackville J’s approach in Lu at [55], I consider it unlikely that the Parliament envisaged that the Minister could exercise the power under s 501A on the basis of incorrect information as to the applicant’s conduct which is relied upon by the Minister in determining the mandatory relevant consideration of the risk the applicant posed to the Australian community. The position is different if the relevant factual error is only a minor error, as Sackville J acknowledged in Lu at [56].

89    The principle in Lu, as applied in Gbojueh, does not circumvent well-established limitations on judicial review of fact finding. Rather, the principle is confined to circumstances where there is a mandatory relevant consideration in the exercise of the power under s 501A(2) and a material error of fact is made in the assessment of that mandatory relevant consideration. For reasons explained elsewhere, the case law indicates that the expression “in the national interest” is a broad one and the identification of relevant considerations is largely left to the Minister. As the law currently stands, there are relatively few mandatory relevant considerations in the exercise of that power.

90    Secondly, it is noted that the approach of the majority in Lu was also applied by Flick J in Ruatita v Minister for Immigration and Citizenship [2013] FCA 542; 212 FCR 364, which is another successful judicial review application in respect of a Ministerial decision under s 501A(2). There, the Minister adopted a misleading statement from his Department’s Issues Paper which overstated the total period of imprisonment the applicant had been sentenced to serve for criminal offences. Justice Flick noted at [38] that the Minister’s counsel “correctly accepted that the statement as to the time served in custody was erroneous”. Applying the approach in Lu, Flick J held that the erroneous statement, as adopted by the Minister, involved jurisdictional error. His Honour rejected the Minister’s argument that the period in custody was not critical to the Minister’s reasoning process. Although the error appeared in that part of the Minister’s reasons which dealt with the applicant’s ties to Australia, his Honour said that it should not be confined simply to that part. This was because the Minister’s assessment as to whether the applicant should be allowed to remain in Australia as a person with his criminal record necessarily involved an assessment of the nature of the offences for which he had been convicted, which necessarily included the period of time for which he was imprisoned and served.

91    I have referred to Ruatita not because resolution of the present proceeding is to be approached as a “tick the box” exercise, but rather to illustrate how the legal principle in Lu has been applied in other circumstances. Each case must necessarily be looked at with close attention to its own facts and circumstances. It is also worth repeating that the principle attaches to circumstances where the Minister is assessing a mandatory relevant consideration. The principle does not apply to any erroneous finding of fact made in the path of decision-making under s 501A(2).

92    The position here is even more strongly in the applicant’s favour than was the case in Ruatita. This is because, as noted above, the Minister’s error appears in that part of the statement of reasons which directly addresses why the Minister considered that it was in the national interest to refuse to grant the applicant a visa. The error appears also to have affected the Minister’s residual discretion. As has already been emphasised, the Minister stated that his findings regarding the applicant’s “serious conduct” (which included the erroneous factual findings) formed part of the rationale for his conclusion that the applicant posed a risk to the Australian community.

93    When the Minister makes a decision under s 501A(2) of the Act that he is satisfied that it is in the national interest to not grant a person a visa and, in coming to that conclusion, the Minister takes into account and acts upon factually erroneous information which is relevant to the Minister’s assessment of a mandatory relevant consideration, as is the case here with respect to the risk the applicant posed to the Australian community, jurisdictional error may occur.

94    Thirdly, I did not understand the Minister to contest that his factual errors were material in the sense described either in Lu or in subsequent authorities such as Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 so as to amount to jurisdictional error. Accordingly, it is unnecessary to determine whether there is any relevant differences in those authorities regarding the concept of materiality.

95    If the error had not occurred it is possible that the Minister may have come to a different conclusion as to whether the applicant posed a risk to the Australian community and, ultimately, that it was in the national interest not to grant him a visa. It is also notable that at [117]-[118] of his statement of reasons, the Minister referred to the applicant’s “other fraudulent or dishonest conduct” (which must have included the relevant erroneous matter) in his description of the risk of harm to the Australian community, which risk he regarded as weighing decisively in favour of refusal of the applicant’s visa application (noting that the Minister stated at [119] of his statement of reasons that the risk of harm to the Australian community outweighed countervailing considerations).

96    As noted above, the Minister conceded that his decision relied in part upon the AAT’s findings of fact regarding the use of the New Zealand passport and also that this finding was wrong. It may be that, because of this concession, the Minister raised no objection to the admissibility of an affidavit filed by the applicant’s instructing solicitor on 3 October 2019, which annexed a copy of the applicant’s entry interview transcript and which revealed the error (on the admissibility of such evidence to establish an error in fact finding, see generally Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; 251 FCR 23).

97    For completeness, I should state that, having regard to the binding authority of Lu in relation to the exercise of the Minister’s power under s 501A(2), it is unnecessary to address what has been described as “some tension in the case law concerning the question whether or not the risk of re-offending constitutes a mandatory relevant consideration in all cases involving the Minister’s discretion under s 501(2)” (see, for example, Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22] per Allsop CJ, Flick and Griffiths JJ; Ayoub v Minister for Immigration and Border and Protection [2015] FCAFC 83; 231 FCR 513 at [33] per Flick, Griffiths and Perry JJ and Te Puke v Minister for Immigration and Border Protection [2015] FCA 398; 230 FCR 499 at [40]-[73] per Wigney J and the cases referred to therein).

98    For these reasons, ground 3 is upheld on the basis of the principle in Lu.

99    Finally, something should be said regarding the applicant’s alternative contention under ground 3, namely that the Minister’s satisfaction under s 501A(2) that it was in the national interest to refuse the applicant a visa involved a jurisdictional fact and that the Court should find that the jurisdictional fact did not exist because of the Minister’s erroneous fact finding. I reject those contentions. As the Minister pointed out, the Minister’s satisfaction involves a subjective determination by the Minister. This is not a case of an objective jurisdictional fact of the kind which arose, for example, in Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303. The applicant did not contend that the Minister was not in fact satisfied that it was in the national interest not to grant the applicant a visa. The applicant’s jurisdictional fact argument is rejected.

C. Ground 4 – Misconstruction of “in the national interest”

100    The first issue is whether the Minister adopted an unduly narrow and incorrect construction of s 501A(2)(e) if he proceeded on the basis that the only two matters he needed to address in determining whether or not it was in the national interest to set aside the AAT’s decision were the seriousness of the applicant’s criminal offending and other conduct and the need to protect the Australian community. In particular, the applicant contended that the Minister’s failure to consider the interests of the applicant’s two minor children in determining that it was in the national interest to refuse the applicant a visa, and deferring consideration of that matter to the assessment of the residual discretion, involved an unduly narrow construction by the Minister of the expression “in the national interest”. Alternatively, the applicant contended that that matter was a mandatory relevant consideration.

101    Having regard to the applicant’s success with ground 3 it is unnecessary to determine either limb of this additional and separate ground. The first issue raises several complex issues which are better left to be determined in a case where it is essential to do so. If it had been necessary to determine this limb of ground 4 here, one of the matters which the applicant would have had to confront is what the Full Court said in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 252 at [158], albeit in obiter dicta. I do not intend to suggest that that passage is necessarily inconsistent with the applicant’s claim of misconstruction.

102    In addition, the applicant’s alternative argument that the interests of the children was a mandatory relevant consideration would have to confront the correctness of Jessup J’s decision to the contrary in Leiataua v Minister for Immigration and Citizenship [2012] FCA 1427; 208 FCR 448 at [20]-[21].

103    Another potentially relevant matter may have been the force of the “reservations” expressed by Buchanan J in Jione at [28]-[30] as to whether a two-stage approach to decision-making is appropriate in a s 501A(2) case, with some bifurcation of the national interest and the residual discretion (but see contra Gbojueh at [14] per Bromberg J).

104    There is one further thing to mention concerning ground 4. After the Full Court published its reasons for judgment in Omar, the parties were invited to provide supplementary submissions on the relevance, if any, of that decision to ground 3 of the then further amended originating application. Both did so. The Minister’s supplementary submissions were to the effect that Omar was of no relevance to ground 3 because, unlike the position in Omar, the applicant’s submissions to the Minister did not challenge the AAT’s finding of fact that, when he returned to Australia in December 2012, he used his friend’s New Zealand passport. I accept that submission, but I have indicated above why I consider that ground 3 succeeds on a different basis.

105    The applicant’s supplementary submissions candidly acknowledged that Omar had no direct relevance to ground 3 of the then further amended originating application, but then added that it was relevant to what ultimately became ground 5 of the second further amended originating application. I will now address that ground.

(d) Ground 5 – Applicant’s reliance on Omar

106    In brief, the applicant contended that the language used by the Minister at [25] to [63] of his statement of reasons and, in particular, his repeated use of expressions such as “I have considered”, “I have taken into account”, “I have had regard to” and “I note”, indicated that the Minister had not engaged fully and meaningfully with the applicant’s submissions to him on the matters referred to in [42]-[45], [47]-[48], [51] and [53]-[60] of the Minister’s statement of reasons, nor with the submissions concerning the best interests of the applicant’s minor children at [68]-[83].

107    For the following reasons, I reject these claims. First, I reject any suggestion that Omar stands for the principle that the use of expressions such as “I note” and “I have considered” may itself give rise to jurisdictional error. Each case necessarily turns on its own facts, as the Full Court emphasised in Omar at [36(e)].

108    Secondly, it is necessary to review a statement of reasons as a whole and not simply focus on particular sentences or paragraphs in isolation from the others. Otherwise, there is a danger that there will be an insufficient appreciation of the fact that the decision-maker’s consideration of a particular submission may be subsumed in findings made elsewhere in the statement on related issues. That is well illustrated in the circumstances here where, for example, the Minister’s conclusions relating to risk to the Australian community, as expressed at [49] of his statement of reasons, subsumes individual matters which are summarised earlier arising from the applicant’s submissions (see at [41], [46], [47] and [48]).

109    Thirdly, as the Minister pointed out, some of the passages in the statement of reasons which the applicant says reveal a failure on the Minister’s part to engage fully and meaningfully with his submissions (such as [51] and [53]-[60]), when fairly read, indicate that the Minister was implicitly accepting the facts underlying the particular submissions. Nevertheless, the Minister proceeded to made the conclusion that he did at [63] regarding the risk the applicant posed to the Australian community. This conclusion was arrived at after the Minister weighed the competing considerations.

110    The same may be said in respect of the Minister’s summary of the submissions made by the applicant in respect to his minor children as set out at [68]-[83] of the Minister’s statement of reasons. Fairly read, many of these paragraphs accept the factual basis for the submissions leading up to the Minister’s conclusion at [89] that it was in the children’s best interests not to refuse their father a visa. It is difficult to understand how any jurisdictional error could arise in respect of this matter given that the particular issue of the children’s best interests was determined favourably to the applicant.

111    For these reasons, ground 5 is rejected.

Conclusion

112    For these reasons, the second further amended originating application is upheld. The Minister’s decision dated 12 July 2019 will be quashed. The parties agreed that, as a consequence of the making of that order, the AAT’s decision will “spring back”.

113    The Minister asked for an opportunity to be heard on costs. I will permit that to occur, if necessary, on the papers. There is no basis to grant the other relief sought by the applicant. Orders will be made accordingly.

Associate:

Dated:    26 November 2019