FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application for a review of a migration decision be dismissed.

2.    The applicant pay the first respondent’s costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    It be declared that in respect of the notice of intention to consider refusal to grant a protection visa under s 501A(2) of the Migration Act 1958 (Cth) that the second respondent, acting personally, gave to the applicant on 17 October 2019 any conduct preparatory to the making, or consideration, of such a refusal does not prevent, within the meaning of s 65(1)(a) of the Act, the grant of a protection (subclass 866) visa to the applicant.

2.    The second respondent determine the applicant’s application for a protection (subclass 866) visa pursuant to s 65 of the Migration Act 1958 (Cth) according to law on or before 6 December 2019.

3.    The second respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    These are two applications for review of the same migration decision made by the Administrative Appeals Tribunal on 18 September 2019 that set aside the decision of the Minister’s delegate made on 7 September 2018 to refuse, under s 501(1) of the Migration Act 1958 (Cth), to grant a protection visa to the applicant, being a person given various pseudonyms, BBFD, in the Tribunal and, CPJ16, in the Court, because she had not satisfied the delegate that she passed the character test. In addition, the Tribunal substituted its decision that her application for the protection visa be remitted to the Minister for reconsideration in accordance with s 65 of the Act with the direction that the applicant is not to be refused the visa under s 501(1).

2    The Minister seeks an order quashing the Tribunal’s decision for jurisdictional error, while the applicant seeks an order, elucidated in the course of argument today, in the nature of writ of mandamus compelling the Minister to determine, in accordance with s 65, whether or not to grant the protection visa on or before 6 December 2019.

Introduction

3    The applicant applied for the protection visa on 21 September 2015. She has been in immigration detention weathering the variety of traverses of the administrative and judicial hierarchy in those four years as her application has wound along a tortuous path leading to the present matters being before me.

4    On 14 October 2019, the Minister applied to a judge of the Court for a stay of the Tribunal’s decision pending the determination of his application to review it. The Minister refused to give to the Court the usual undertaking as to damages and, therefore, not potentially expose himself to having to pay damages should it later be held that the applicant was entitled to have been granted the protection visa at that time, in lieu of having to wait for the disposition by the Court of the two applications for review. His Honour refused to grant a stay on 16 October 2019 and also recommended expedition of the hearing of both originating applications: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 1702. On 14 November 2019, the parties indicated that they could be ready for a final hearing today and have argued with considerable skill and assistance the issues for decision.

5    On 17 October 2019, the Minister gave notice to the applicant that he was considering the use of his personal powers, under s 501A(2), to set aside the Tribunal’s decision and to refuse to grant the visa under that section on the grounds that he reasonably suspected the applicant did not pass the character test, she had not satisfied him that she passed the character test, and he was satisfied that refusal was in the national interest (the s 501A(2) notice).

6    As the Parliament is currently sitting and the Minister is responsible for legislation he has moved or is proposing to move, that is being debated or will be debated this week, he is not able to decide on the s 501A(2) notice, but has sought that he be given until 6 December 2019, if I were minded to grant relief in the nature of mandamus that he make a decision by a particular time. That timeframe is now common ground, albeit that the Minister’s primary position is that no time limit should be placed on his decision-making in respect of his consideration to the s 501A(2) notice.

7    One might be forgiven for thinking that the applicant is a person with a very considerable and lamentable criminal history warranting this degree of administrative and judicial attention. But that does not appear to be the case, at least on the Tribunal’s findings.

The legislative context

8    There are two relevant statutory schemes for the purposes of considering this application: first, that under the Migration Act and, secondly, that under the Administrative Appeals Tribunal Act 1975 (Cth).

9    Relevantly, the Migration Act provides:

47    Consideration of valid visa application

(1) The Minister is to consider a valid application for a visa.

(2) The requirement to consider an application for a visa continues until:

[…]

(b) the Minister grants or refuses to grant the visa; or

[…]

65    Decision to grant or refuse to grant visa

(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a) if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant a visa; or

(b) if not so satisfied, is to refuse to grant the visa.

[…]

197A    Detainees must not escape from detention

A detainee must not escape from immigration detention.

Penalty:    Imprisonment for 5 years.

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

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

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

235    Offences in relation to work

[…]

(3) An unlawful non‑citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.

Note:     Subdivision C of this Division also contains offences relating to work by an unlawful non‑citizen.

[…]

(4B) An offence against subsection (1), (3) or (4) is an offence of strict liability.

Note:    For strict liability, see section 6.1 of the Criminal Code.

492    Commencement of prosecutions

(1) Subject to this section, a prosecution for an offence against this Act or the regulations may be instituted at any time within 5 years after the commission of that offence.

[…]

(emphasis added)

10    Section 500(1)(b) of the Migration Act provides that an application may be made to the Tribunal for a review of a decision of a delegate of the Minister under s 501 including under s 501(1). Relevantly, s 501 provides:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate – natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

[…]

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

(aa)    the person has been convicted of an offence that was committed:

(i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab) the person has been convicted of an offence against section 197A; or

(b)     the Minister reasonably suspects:

(i)    that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; or

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)    an offence under one or more of sections 233A to 234A (people smuggling);

(ii)    an offence of trafficking in persons;

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

(c) having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

   the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)    the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)    the crime of genocide;

(ii)    a crime against humanity;

(iii)    a war crime;

(iv)    a crime involving torture or slavery;

(v)    a crime that is otherwise of serious international concern; or

(g)    the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h)    an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

[…]

(emphasis added)

11    The Minister has an additional power under s 501A that relevantly provides:

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.

[…]

12    The Administrative Appeals Tribunal Act provides, relevantly, that:

25    Tribunal may review certain decisions

Enactment may provide for applications for review of decisions

(1)    An enactment may provide that applications may be made to the Tribunal:

(a)    for review of decisions made in the exercise of powers conferred by that enactment; or

[…]

Tribunal may determine scope of review

(4A) The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.

[…]

28    Person affected by decision may obtain reasons for decision

Request for statement of reasons

(1)    Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.

[…]

29    Manner of applying for review

(1)    An application to the Tribunal for a review of a decision:

(a)    must be made:

(i)    in writing; or

(ii)    if the decision is reviewable in the Social Services and Child Support Division — in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and

Note:    For oral applications, see also section 29AA.

[…]

(c)    unless paragraph (ca) or (cb) applies or the application was oral — must contain a statement of the reasons for the application; and

[…]

33    Procedure of Tribunal

(1)    In a proceeding before the Tribunal:

(a)    the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)    the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)    the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

[…]

Types of directions

(2A)Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

[…]

(b)    require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or

(c)    require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or

[…]

37    Lodging of material documents with Tribunal

[…]

Decision maker must lodge material documents

(1)    Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:

(a)    a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b)    subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.

[…]

43    Tribunal’s decision on review

[…]

Tribunal’s decision on review

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

(emphasis added)

Background

13    The applicant is a 41 year old citizen of New Zealand. On 19 March 2009, she arrived in Australia on a false passport. She had breached bail conditions imposed in New Zealand with respect to various charges, including importing or exporting fantasy-type substances and selling, giving, supplying, administering or dealing in fantasy substances.

14    On 10 September 2010, a delegate acting under s 109 of the Migration Act cancelled the applicant’s special category visa following the discovery of the false nature of the documents that she had used to travel to and gain entry into Australia the previous year. She then became an unlawful non-citizen. She was detained and taken to an immigration detention centre in Darwin under s 189 of the Act.

15    On 13 September 2010, while being held in a motel facility in immigration detention, she absconded and remained unlawfully in the community for nearly five years until she was located and taken back into detention on 10 August 2015. As I noted above, on 21 September 2015, she applied for the protection visa. That application is still awaiting a decision.

16    It is not necessary for the purpose of these reasons to describe all of the many reviews, applications and decisions along the path to the present controversy.

The delegate’s decision the subject of the Tribunal’s decision made on 18 September 2019

17    On 7 September 2018, the delegate made his decision that the applicant:

has not satisfied me that [she] passes the character test. I have decided to exercise my discretion under subsection 501(1) of the Act to refuse her application for a visa. I hereby refuse her application for a Protection (Class XA) visa. My reasons for this decision are set out in the attached Statement of Reasons[.]

(emphasis added)

18    The delegate’s statement of reasons at [4] commenced by setting out only the criterion in s 501(6)(d)(i) of the character test and stated at [5]:

Accordingly, I have had regard to [the applicant’s] criminal conduct and considered the risk of her offending in the future if she were allowed to remain in Australia.

19    The delegate referred to a number of matters under the heading of “Other serious conduct”, including that the applicant had been taken into immigration detention on 10 September 2010 following the cancellation of her special category visa because she had provided incorrect information to the Department on an incoming passenger card upon arrival into Australia on 19 March 2009 and, consequently, she had become an unlawful non-citizen. The delegate noted that, on 13 September 2010, the applicant had absconded from detention and remained unlawfully in the community until she was located on 10 August 2015.

20    The delegate made findings at [51]-[53] of his reasons that, if the applicant were allowed to remain in Australia, there was a risk, albeit a low one, but more than a minimal or remote chance, that she would engage in criminal conduct in Australia, based on her criminal and other history, other examples of her “serious conduct”, and his view of her remorse, insight and rehabilitation. He found that she had not satisfied him that she passed the character test and concluded at [53]:

I therefore find that [the applicant] does not pass the character test by virtue of s 501(6)(d)(i).

(emphasis added)

21    The delegate then considered the best interests of the applicant’s children, noting that she had a son, born in 2012, who was an Australian citizen and resided with his biological father and paternal grandparents in New South Wales. He found that the son had emotional needs in relation to his mother that were being adversely impacted by her being held in immigration detention. He noted that the applicant had subsequently married and also had a 17 year old son who was residing with his grandmother in New Zealand.

22    The delegate noted that, in an earlier review, the Tribunal had found that the applicant was a person in respect of whom Australia owed protection (or non-refoulement) obligations, and that that decision remained in effect. The delegate said that he had taken into account all relevant matters, including an assessment against the character test as defined in s 501(6), the then Ministerial Direction No 65 made under s 499 of the Act and the best interests of the applicant’s younger child, but concluded that he should exercise his discretion to refuse her a protection visa under s 501(1).

The proceeding in the Tribunal

23    The deputy president heard the review of the delegate’s decision in the Tribunal over six days. The Minister was represented by counsel and the applicant represented herself.

24    In his decision, the deputy president stated that the delegate’s task had been to consider s 501(6) of the Act and to decide which part of it he would examine factually in order to determine whether or not the applicant passed the character test and to exercise any discretion under s 501(1), in accordance with Direction No 65. He summarised the delegate’s statement of reasons and noted that the applicant’s first attempt to challenge that decision had been heard by a differently constituted Tribunal in December 2018, but that a judge of this Court had set that Tribunal’s decision aside and remitted it to the Tribunal for hearing and determination according to law.

25    The deputy president found that there was no issue that Australia owed non-refoulement (or protection) obligations in respect of the applicant. He found that she had been in immigration detention for the previous four years and, on several occasions in that period, had been attacked by persons in detention. He found that she believed that those persons were in touch with a New Zealand gang and that its members had attacked her to pursue the gang’s objectives and to gain a bounty offered through her death. The attacks started in 2016, as had been found by another administrative decision-maker, and had occurred again recently. He found that those circumstances had caused the applicant to be terrified of remaining in detention and very anxious to leave it. He noted that while she had a criminal record, the courts had dealt with her offending without imposing a custodial sentence, except on one occasion in 2010, in Australia, when she was sentenced to 28 days imprisonment.

26    The Tribunal referred to the delegate’s consideration of Direction No 65. By the time of its decision, that direction was replaced by Ministerial Direction No 79 made under s 499. The Tribunal had regard to the analogous part of Direction No 65 that had applied to the delegate’s decision (that became par 12.1(6) of Direction No 79), which stated:

…Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

27    The Tribunal had regard to that consideration, as is evident from its reasons. The Tribunal stated that each officer of the executive government, including a delegate, and the Tribunal itself, were subject to the dictates of good government. It stated that, for a member of the executive government, or the Tribunal standing in that person’s shoes, to make a decision that had the effect that a person be subjected to indefinite or prolonged detention, without an order of a Court, would be inconsistent with the dictates of good government and could only be authorised by the judicial branch of government. He referred to what Smithers J had raised in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 334-335, about the purpose of the Administrative Appeals Tribunal Act being to promote good government by those carrying out the practical task of administering Acts of the Parliament and making decisions incidental to that task.

28    The deputy president referred to the decision North ACJ in DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at 581 [27], that s 197C of the Act operated to require that a person had to be returned to his or her country of origin if they were not otherwise entitled to a visa and that, accordingly, there was no statutory authority to hold such a person in indefinite detention in order to see if circumstances might change.

29    The deputy president reasoned that returning a person to their country of origin where his or her life might be at risk raised humanitarian considerations, and that good government, ordinarily, would require those considerations to be taken into account in relation to addressing the exercise of a statutory discretion. He noted that Direction No 79 provided that considerations that it made mandatory did not limit a decision-maker so as to preclude his or her ability to take other relevant considerations into account. He stated as follows (at [20]):

It therefore seems to me that there are at least three reasons why good government required that the discretion conferred by s 501 of the Migration Act should have been exercised by the delegate in favour of the present applicant, assuming that the delegate was right that the applicant failed the character test:

(a)    Sending her back to New Zealand would put this country into breach of its international obligations;

(b)    The alternative of indefinite or prolonged detention would be open only to the criminal courts, not a member of the executive branch of government;

(c)    Strong humanitarian reasons would indicate another reason why the discretion should be exercised in the applicant’s favour.

30    The Tribunal identified that its task of reviewing the delegate’s decision was to address whether the applicant had satisfied it that she passed the character test under s 501(6)(d)(i) and, if not, whether the discretion under s 501(1) ought be exercised by refusing to grant her the visa. He referred, in terms that the Minister did not complain of, to the test that Mortimer J had set out Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at 450-451 [122]-[130] as to whether the criteria in s 501(6) had been met. The deputy president then identified that the purpose of the inquiry in exercising the discretion in s 501(1) is to guard against harm to the Australian community. He said that it was relevant to consider the applicant’s history and to take into account all of the circumstances of the applicant in evidence on the review, including facts unfavourable to her that related to the risk that she would engage in criminal conduct in the community.

31    The deputy president found that the applicant had a seven year old son living in the community, the father of that child visited the detention centre with their son once every fortnight and he remained there with the applicant and the boy for about two hours each time. The Tribunal found that the applicant desired to be reunited with her son to participate in his upbringing, and that the son often spoke of his mother whom he missed. It found that the applicant’s conduct towards her eldest son in New Zealand prior to her arriving in Australia could be explained by her then immaturity and that her drug-taking appeared to have completely stopped.

32    The Tribunal found that the applicant had married, that her husband (about whom there was no adverse suggestion) was gainfully employed, and that she desired to live with him in the community and would do so as soon as she was released. It found that her husband’s support would be valuable to her. It concluded that the applicant’s son and her husband gave her a strong motive never to be detained again.

33    The deputy president found that she both feared and detested detention. The Tribunal accepted that her fears arose because of both the attacks upon her by other New Zealand nationals in her four years of immigration detention, and the risk to her life that she feared prior to that period. The Tribunal found that she had only once been incarcerated for four weeks and that, since being detained in August 2015, she had taken every possible legal step to obtain her release. The Tribunal also found that the applicant feared that the Minster would return her to detention if she committed any criminal offence, as had occurred twice in the past (in 2010 and 2015). It found that her experiences with the immigration system and other areas of the law had suggested to her that “if she ever has another brush with the law, she will again face detention”.

34    The Tribunal found that while the applicant was at liberty in the community for five years, she had not committed any offence. It said that it had made this finding after having had regard to, but rejecting, the Minister’s submission to the contrary. The Tribunal’s reference to that submission appears to have been directed to her acquittal of charges arising from her unlawful arrest in 2015 that had led to her current immigration detention. It considered her history of offending in New Zealand over the period from 1994 to 1997 and, again, from 2000 to 2008, many of which were for driving offences, some for dishonesty, and some others for drug-related offences. But, importantly, it found that none of that offending had resulted in a sentence of full-time imprisonment, but some had resulted in a fine, community work or, what seemed to be, a suspended sentence. The Tribunal found that the applicant had accepted responsibility for her prior offences and was ashamed of them. It found that much of the applicant’s previous offending had been affected by her then immaturity. It concluded that she had every incentive to avoid any future brush with the law.

35    It found that she had fled to Australia from New Zealand because she believed that a gang was pursuing and trying to kill her and, for that purpose, she had purchased a false passport and used it to enter Australia. It found that she had committed a drug-related offence in Australia in 2010 leading to her being sentenced to 28 days imprisonment.

36    The Tribunal found that, in 2010, the applicant was being held in a motel prior to her being transferred to a detention centre but that she had left the motel and then lived in the community for five years during which time, it found, she had committed no offences and her son was born. It found that she had tried to obtain qualifications to work and had gained some qualifications in photography which she wished to use if released.

37    The deputy president found that the applicant came again to the Department’s notice in 2015 as a result of an incident with the police. However, she had been acquitted of the charges that the police had brought against her because the magistrate had found that the police had had no basis to arrest her and that she had resisted an unlawful arrest. The deputy president rejected the Minister’s submission that, in some way, the applicant had attempted to pervert the course of justice in the proceeding before the magistrate because she had used a supposedly false name, which was actually her birth name, and that she had not revealed that she was in detention. The Tribunal found that the applicant had come to court from the detention centre and, therefore, could not conceal the fact that she was then in detention, and that the use of her birth name could not have been in any way designed to deceive the Minister (scil: magistrate) or to pervert the course of justice.

38    The Tribunal then considered the likelihood of any risk that the applicant would, in the future, engage in criminal conduct for the purpose of s 501(6)(d)(i). The deputy president identified that the question for decision of this issue was whether he was satisfied that there was a risk that the applicant would offend in the future. He said that he would concentrate upon that risk of future offending.

39    The Tribunal then found (at [52]) that it was not satisfied that there was a risk that, if the applicant were allowed to remain in Australia and released into the community, she would engage in criminal conduct. It found that, first, she hated immigration detention, would do anything to get out of it and, thus, would not do anything which might cause herself to be detained again and, secondly, she was frightened of remaining in (and the prospect that, if released, she could be returned to) detention for the, or similar, reasons to those that had led to the independent earlier finding that Australia owed her non-refoulement obligations. Thirdly, it found that she believed that the immigration authorities would seek to put her into detention if there were any ground to cancel a future visa, and that if she committed a criminal offence, that circumstance would be likely to give those authorities such a ground. Fourthly, the deputy president found that the applicant had a seven year old child living in the community for whom she understandably desired to participate in caring with the support of his father. Fifthly, he found that while in detention, she had married an Australian citizen in good standing and desired to take up married life with him in the community, enabling her to obtain gainful employment or engage in business, as she had in the past, and that her husband was likely to provide her with support as she lived in the community. Sixthly, the Tribunal found that although she had offended in the past and had once, in 2010, been imprisoned for 28 days, she had committed no offences over the five years before August 2015, nor had she subsequently in the four years while in immigration detention. Seventhly, the deputy president found that the applicant was intelligent, more mature than she was at the time of her previous offending, and had strong incentives not to offend.

40    Importantly, the Tribunal then considered whether the Minister could broaden the scope of the review before it to include consideration of whether the applicant failed the character test in respect of s 501(6)(c), even though the criteria in that provision had formed no part of the delegate’s decision. The deputy president concluded that the function of the Tribunal on review was to decide the same questions in issue under s 501(6) (viz: under s 501(6)(d)(i)) as were before the original decision-maker, and no more. He referred to the reasoning in Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629 at 633 [15] per Kiefel CJ, Keane and Nettle JJ, and at 641 [51] per Bell, Gageler, Gordon and Edelman JJ.

41    The deputy president found that the delegate was required to address no more than he decided to address, namely whether the applicant had satisfied him that she passed the character test in respect of s 501(6)(d)(i) and ought be granted a protection visa under s 501(1). The Tribunal found that the delegate’s reasons dealt with, and only with, the issue of whether the applicant passed the character test under s 501(6)(d)(i). He noted, correctly, that, the delegate, in his reasons, had made no reference to any other provision of s 501(6).

42    The Tribunal considered that one aspect of the statutory context governing the consideration of an application for a visa or the refusal or cancellation of a visa under s 501 was that the visa applicant had two chances to have his or her application assessed on its merits. The Tribunal observed that the Minister’s delegate might decide, on any ground, that the applicant did not pass the character test, and that if such a decision were made, the visa applicant could seek merits review of that decision in the Tribunal. He reasoned that, however, if, in its review, the Tribunal elected to proceed on a new and different ground (not before the delegate) to determine whether the character test was passed and decided that question adversely to an applicant, there could be no merits review of the Tribunal’s decision. The deputy president observed that that possibility raised the question whether the Parliament’s intention to provide merits review of adverse administrative decisions would be frustrated if new grounds, adverse to an applicant for review, could be relied on in the review that were not before, or considered by, the original decision-maker. He noted, particularly, that different factual questions arose under s 501(6)(c) from those in s 501(6)(d)(i), notwithstanding that the same ultimate question for the decision-maker was whether to refuse to grant the visa under s 501(1) for failure to satisfy the decision-maker that the applicant passed the character test.

43    The Tribunal concluded that it should refuse the Minister’s application to include in the review the issue whether the applicant did not pass the character test in respect of s 501(6)(c). He found that such an expansion of the review would not be consistent with Frugtniet 93 ALJR 629.

44    The Tribunal then considered the Minister’s reliance on the April 2019 decision of a senior member, who had affirmed a delegate’s refusal of an earlier bridging visa application, on the basis that the applicant did not pass the character test in s 501(6)(c) and 501(6)(d)(i). The Tribunal said that it was not apparent from the decision record that the senior member had given consideration to Frugtniet 93 ALJR 629 or that he had taken into account matters that the deputy president had considered as critical to the current decision. He noted that the senior member’s review had been on the papers and had not involved an assessment of the applicant in the witness box, the benefit of which the deputy president had had together with the other evidence before him of the applicant’s good character and credit. Accordingly, the deputy president did not consider that the senior member’s decision was normative in relation to the issue of the risk that the applicant posed were she to be released.

45    The deputy president found that the correct or preferable decision was that the applicant did not fail the character test under s 501(6)(d)(i) and that there was no other question properly before him on the review. He then stated (at [67]):

I have decided to make a decision in substitution for the decision, for several reasons:

(a)     The applicant is at risk in detention of injury as a result of the very circumstances which led to the finding that non-refoulement obligations are owed in respect of her, and remission of the matter would keep her in a dangerous environment.

(b)    If the matter (assumed to mean the application for a protection visa) were remitted for reconsideration, and even if the delegate found the question arising under s 501(6)(c) adversely to the applicant, that would have the effect of enlivening [the] discretion. The delegate, acting property, would follow normative decisions of this Tribunal, in accordance with authorities referred to in Azizi and Minister for Home Affairs (Migration) [2018] AATA 2561. That should lead him or her not to refuse the protection visa on discretionary grounds. I would have done so for reasons indicated in [20] above. Direction 79 makes a non-exhaustive number of considerations mandatory for a decision-maker and some of those also favour the grant of the visa. However, the considerations I have mentioned in [20] above are all relevant and would outweigh any consideration tending the other way.

(c)    The decision which I have decided will be set aside was, as I have found, one which is incorrect and no occasion arises to refer it for reconsideration.

46    The Tribunal noted that the application for the protection visa had to be returned to the Minister for finalisation of the consideration process but with a direction that it not be refused under s 501(1).

47    During the course of the present proceedings, the Minister’s solicitors confirmed to the applicant’s lawyers that no criteria remained to be determined for the grant of the applicant’s remitted protection visa application under s 65(1)(a), subject, however, to the Minister’s consideration of whether he will exercise his powers under s 501A(2).

The parties’ applications in this Court

48    The Minister argued that the Tribunal’s decision was affected by jurisdictional error because:

(1)    it misconstrued the scope of its review function under ss 25 and 43 of the Administrative Appeals Tribunal Act by refusing or failing to consider whether, as the Minister had sought, the applicant had satisfied the Tribunal that she passed the character test by reference to s 501(6)(c) and or alternatively, if that were right, then it erred by directing that, when considering any outstanding matters under s 65(1)(a), the Minister could not refuse to grant the visa under s 501(1) (grounds 1 and 1A);

(2)    the Tribunal overlooked or misunderstood, in assessing the risk of reoffending under s 501(6)(d)(i), the applicant’s admissions that she had offended again during and after 2010 by contravening ss 197A and 235(3) (ground 2);

(3)    alternatively to (1), in considering the exercise of the discretion in s 501(1), first, the Tribunal had not taken into account mandatory considerations specified in paragraphs 11.1.1 and 11.3 and 11.2(4) of Direction No 79, secondly, it misconstrued ss 197C and or 196 in [20(b)] of its reasons by failing to appreciate that the applicant faced the prospect of indefinite detention under s 197C and, thirdly, that it had failed to consider and apply in [20(a)] the Minister’s submission that he would adhere to his policy not to refoule non-citizens in breach of Australia’s international obligations (ground 3).

49    For her part, the applicant sought, first, a declaration that neither the proposed decision of the Minister acting personally under s 501A(2) nor any conduct preparatory to the making, or consideration, of such a decision prevented the grant of her application for a protection visa and, secondly, an order in the nature of a writ of mandamus requiring the Minister to determine her application for a protection visa in accordance with the Tribunal’s decision.

The Minister’s submissions

50    The Minister argued that he was entitled to broaden the scope of the Tribunal’s review of the delegate’s decision to encompass consideration of whether the applicant failed to pass the character test in respect of the criteria in s 501(6)(c). He contended that the delegate had exercised a single power, namely, to refuse to grant the visa under s 501(1) because the applicant had not satisfied the delegate that she passed the character test. He submitted that it was open to the Tribunal in the review to expand the matters which the delegate had considered to any other aspect of the character test under s 501(6) in order to address whether the correct or preferable decision under s 501(1) was to refuse to grant the visa, if the applicant had not satisfied it that she passed the character test.

51    The Minister argued that Shi v the Migration Agents Registration Authority (2008) 235 CLR 286 had held that the Tribunal’s task was to make the correct or preferable decision on the basis of the position at the time of its decision, as opposed to the time of the delegate’s decision. He contended that Tribunal could not put to one side any relevant part or parts of the character test as defined in s 501(6) when conducting a review of a delegate’s decision made under s 501(1), regardless of whether that decision was based only on one part of that test.

52    He contended that because s 43(1) of the Administrative Appeals Tribunal Act conferred upon the Tribunal all of the powers and discretions that s 501 conferred on the Minister, it could exercise, on the review, all of those powers and discretions by reference to any part of the character test in s 501(6) that was appropriate, and sought to argue that this was supported by what Kirby J had said in Shi 235 CLR at 304 [60]. The Minister argued that the Tribunal had before it the general question, that was before the delegate, namely, whether the applicant had satisfied him that she passed the character test under s 501(1). He contended that, in substance, the issue for the Tribunal to consider in the review was the broad question under s 501(1), namely whether the applicant could satisfy it that she passed the character test in respect of any criteria in s 501(6) that the Minister raised in the review, regardless of the delegate not having considered that criterion. He asserted that it had been open to the delegate to consider s 501(6)(c) (even though the delegate had not raised or considered it as an issue) and, therefore, it was now open in review for the Tribunal to choose to do so. That was because, the Minister said the only question for the Tribunal was that posed in s 501(1), relying on what Kiefel J had said in Shi 235 CLR at 330 [149]. The Minister submitted that the Tribunal was entitled to have regard to new information, that was not before the delegate, that had come to light at the time of its decision. He contended that the Tribunal made a material error, that was a jurisdictional error, in its construction of the scope of the review by limiting it to a consideration of whether the applicant passed the character test only in respect of s 501(6)(d)(i).

53    In the alternative, the Minister argued that the Tribunal exceeded its jurisdiction in making the direction that the delegate could not embark on a consideration of other aspects of the character test in s 501(6). He contended that this was because it had always been open to the delegate to have required the applicant to satisfy him that she passed the character test on any of the criteria in s 501(6).

54    The second jurisdictional error of the Tribunal that the Minister argued was that it had made an incorrect finding about, or had overlooked, a matter critical to its conclusion with respect to s 506(1)(d)(i) when it said that the applicant had not offended in Australia since her 2010 conviction. He argued that that conclusion was not correct because the Tribunal had overlooked or misunderstood the applicant’s admissions in her evidence that she had contravened ss 197A and 235(3) by absconding from immigration detention, remaining unlawfully in the community for five years and working whilst an unlawful non-citizen, even though she had not been charged with, or convicted of, any offence in respect of that conduct. He argued that the senior member, in the April 2019 decision, had had regard to those matters under s 501(6)(c) and that the deputy president erred in not doing so in the review. He contended that the Tribunal’s failure to have regard to evidence which was critical to its key findings constituted an error of the kind that Robertson J identified in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.

55    The third jurisdictional error that the Minister relied on was that the Tribunal failed to make alternative findings about how it would have exercised its power under s 501(1) in accordance with Direction No 79, and that that error was material. He contended that the Tribunal’s reasons did not indicate any consideration of the mandatory considerations set out in Direction No 79 other than what the Minister characterised as its erroneous consideration of those issues in [20] and [67] of its reasons.

Consideration

(1) The ambit of the review in the Tribunal

56    Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 explained the function of the Tribunal in a review under ss 25(1) and 43(1) of the Administrative Appeals Tribunal Act as follows:

The Tribunal must give what it considers to be the correct or preferable decision [Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 24 ALR 307; 2 ALD 1]. And that is so even in those cases where government policy is a relevant factor for consideration and the powers of the Tribunal are limited to the affirming of, or recommending the reconsideration of, the decisions of a Minister. Thus, in the first deportation case to come before the Tribunal [Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 161; 15 ALR 696]. Brennan J pointed out:

“The legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive (see Pt II of the Act). Its function is to decide appeals, not to advise the Executive. The remedies which it awards may be limited or large, but the remedies are incidental to the decision at which it arrives. The decision of the Tribunal in the particular circumstances of each case is therefore to be resolved according to its opinion as to the merits of that case. It forms that opinion after considering the views of the decision-maker, but it is not bound by those views. Whenever the Tribunal is constrained or elects to remit a matter for reconsideration in accordance with its recommendations (see s 43(1)(c)(ii)) its function is discharged when the decision to remit is made. It is not concerned to ensure that its recommendation is carried into effect. The legislature, in creating a right of appeal to the Tribunal, no doubt intended that the successful exercise of the right should not be unjustifiably frustrated by subsequent administrative action, but the remedy, if any, is reserved for the courts or the Parliament — not this Tribunal. The Tribunal decides the appeal: it is left to the Executive to implement the decision.”

(emphasis added)

57    A fundamental element in a review under the Administrative Appeals Tribunal Act is that the Tribunal must have before it not only the decision to be reviewed, but also a statement that sets out the decision-maker’s findings on material questions of fact, identifies the evidence or other material on which those findings are based and the reasons for the decision: see ss 28(1), (4), 29(1)(c) and 37(1)(a). In Dalton v Deputy Commissioner of Taxation (Cth) (1986) 160 CLR 246 at 250, Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ explained that the legislative purpose for such a statement by the decision-maker:

appears to be to enable a person affected by a decision for which reasons must be given to be supplied with findings and a reference to the evidence or other material on which they were based so that he may shape the course of his future conduct accordingly. That purpose will not be effectuated when the information is to be given to him only after he has chosen and embarked upon a particular course.

…the obligation to give reasons should arise from the fact that the decision was given and as an adjunct to it and not by reason of the happening of, or as an adjunct to, some subsequent circumstance.

(emphasis added)

58    Here, the delegate confined the inquiry as to whether the applicant could satisfy him that she passed the character test, within the meaning of s 501(1), solely to the consideration of the criterion in s 501(6)(d)(i). I reject the Minister’s argument that other criteria in s 501(6) remained open to consideration on a review of the delegate’s decision. It is apparent from the terms of s 501(6) that the delegate had eliminated from the scope of his consideration any other potentially adverse criteria, because, it should be inferred, he had considered that they could not, or did not, arise.

59    The evidence before the Tribunal showed that the delegate’s view was that the only matter in s 501(6) about which he required the applicant to satisfy him was that under s 501(6)(d)(i). In that factual context, the delegate had informed (at least by necessary implication) the applicant that she did not need to address specifically any criteria in the character test other than s 501(6)(d)(i), for the purposes of satisfying the delegate that she passed that test. It was obvious on the material before the delegate that there was no need to ask the applicant; e.g. whether she had a substantial criminal record as a result of being sentenced to imprisonment for more than 12 months, as provided in s 501(6)(a), because she had received only the one sentence of imprisonment of 28 days. Likewise, many of the other criteria in s 501(6) could not have applied to her on the facts; e.g. she had not been the subject of an adverse security assessment by the Australian Security Intelligence Organisation within the meaning of s 501(6)(g).

60    It may have been arguable that other criteria in s 501(6) could have applied to her, including, it is safe to infer, as the Minister sought to agitate in the Tribunal, s 501(6)(c). However, the delegate had eliminated from the issues about which the applicant needed to satisfy him all criteria in the definition of the character test in s 501(6) other than s 501(6)(d)(i).

61    Thus, I infer that only the question about which the delegate required the applicant to satisfy him was whether, under s 501(6)(d)(i), there was a risk, if she were allowed to remain in Australia, that she would engage in criminal conduct. The delegate gave reasons to support his conclusion that she had not satisfied him that there was no such risk and refused to grant the visa under s 501(1) on that ground. The applicant sought review of that decision, namely, that she should be refused a visa under s 501(1) because the delegate had found that she had not satisfied him that she passed the character test only on the basis that there was a risk that she would engage in criminal conduct in Australia were she allowed to enter or remain, within the meaning of s 501(6)(d)(i).

62    In Shi 235 CLR 286, the Court discussed the interaction, in a review, between the provisions of the Administrative Appeals Tribunal Act, particularly ss 25 and 43, and the statutory provision under which a decision to be reviewed was made. There, the primary decision-maker had power to cancel or suspend the registration of a migration agent or caution him or her, if it were satisfied of one of five alternative criteria in s 303(1). That decision-maker found against the agent on two, only, of those five criteria and cancelled his registration. The Court held that the scope of a review under the Administrative Appeals Tribunal Act must be determined by the construction of the relevant legislative provisions: Shi 235 CLR at 295 [26] per Kirby J, 311-314 [92]-[96] per Hayne and Heydon JJ, 324 [132]-[133] per Kiefel J. There, Hayne and Heydon JJ said (at 314 [95]-[96]):

95.    The decision which was the subject of the Tribunal’s review, and which is at the centre of the present proceedings, was a decision of the kind identified in s 303(1)(a) of the Migration Act – a decision to “cancel the registration of a registered migration agent by removing his … name from the register”. The grounds on which MARA acted in exercising that power were those identified in s 303(1)(f) and (h) – that MARA was satisfied that the appellant “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” (para (f)) and that “the agent has not complied with the Code of Conduct prescribed under section 314” (para (h)).

The Tribunal’s task

96.    In reviewing MARA’s decision to cancel the appellant’s registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant’s registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” and whether it was satisfied that the appellant had not complied with the Code of Conduct.

(bold emphasis added)

63    Kiefel J (with whom Crennan J agreed on this issue) said (Shi 235 CLR at 319 [116]-[117], 327-328 [142]):

In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address [Hospital Benefit Fund (1992) 39 FCR 225 at 234]. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunals general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.

(emphasis added)

64    None of the justices in Shi 235 CLR 286 suggested that the Tribunal was at large to consider, on the review, the grounds that the decision-maker could have, but did not, determine adversely to the person seeking the review, although this possibility did not appear to have been expressly in issue before the High Court. As Kiefel J said (Shi 235 CLR at 324 [133] and see also at 301-302 [48] per Kirby J):

…it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.

(emphasis added)

65    Her Honour added (Shi 235 CLR at 329 [146]-[147]):

146.    The question which here arose for the Authority under s 303(1), which it answered, was whether it should exercise its powers, under paras (a) to (c) of the sub-section, because the grounds in paras (h) and (f) were established, in particular because the appellant had breached the Code of Conduct. That part of the decision which comprises the finding, that the ground in para (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. The appellant accepted as much in his submissions.

147.    […] The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.

(emphasis added)

66    I am of opinion that the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision-maker’s exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision: Shi 235 CLR at 329-330 [146]-[149].

67    Here, the delegate exercised the power under s 501(1) to refuse to grant a protection visa on the ground that the applicant had not passed the criterion in s 501(6)(d)(i) of the character test. He made the material findings supporting his decision to refuse to grant her the visa that, if she were allowed to remain in Australia, there was a risk that she would engage in criminal conduct within the meaning of s 501(6)(d)(i). He addressed the forward-looking question posed by s 501(6)(d)(i) that related, at the time of his decision, to the existence of the risk that she would so offend in the future. In its review of the delegate’s decision, it was open to the Tribunal to have regard to any conduct or circumstances affecting the question under s 501(6)(d)(i) that occurred or came to light after the delegate’s decision and up to and including the time of its own decision, in considering whether to exercise the discretion to refuse to grant the visa under s 501(1) if she failed the character test in respect of s 501(6)(d)(i).

68    The delegate had invited the applicant to satisfy him, in accordance with the rules of procedural fairness, on that sole matter of concern, namely s 501(6)(d)(i). That confined the scope of the review under s 43(1) of the Administrative Appeals Tribunal Act to the question whether, first, the applicant had passed the character test in s 501(6)(d)(i) and, secondly, only if she did not, how the Tribunal should exercise its power under s 501(1). And because the failure of the applicant to satisfy the delegate about the criterion in s 501(6)(d)(i) was the ground of his decision in the exercise of the power under s 501(1), that ground confined the issues on the review.

69    Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ identified how the Minister ought approach the exercise of his analogous, but not identical, power under s 501(3) in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 30 [57], saying that the Minister’s powers comprised:

[a] statutory discretion enlivened on fulfilment of those statutory conditions [which] must in each case be exercised by the Minister according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself.

(emphasis added, footnote omitted)

70    Accordingly, once the Minister or his delegate has decided that a statutory ground in s 501(6) exists, in respect of which an applicant has not satisfied him that he or she passed the character test, then the discretion under s 501(1) is enlivened. It would not fulfil the statutory purpose or be consistent with Shi 235 CLR 286 or Graham 263 CLR at 30 [57] that the grounds for the decision under review could be expanded in the review without any further new facts emerging. If the Tribunal, on a review, found that it was satisfied that a visa applicant had passed the character test, unless a new fact occurred subsequently, the delegate or the Minister could not revisit later every other ground or criterion in s 501(6) at will, while detaining the person in immigration detention under the authority of the Act for, relevantly, the purpose of determining whether or not he or she should grant the visa: cf. Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 206 [78]-[79] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.

71    For these reasons, the Tribunal did not make a jurisdictional error in refusing to expand the issues in the review to include consideration of s 501(6)(c).

(2) Did the Tribunal overlook or misunderstand the evidence?

72    I reject the second ground of review, namely, that the Tribunal had overlooked or misunderstood the applicant’s admissions of contravening ss 197A and 235(3) during and after 2010. First, although the applicant admitted that she had escaped from immigration detention and had worked after the escape, there was no evidence as to the dates on which she had worked. The Tribunal was not only aware of her conduct in 2010 and thereafter, including her having worked, it also discussed that conduct in its reasons and made findings about it. However, the Tribunal was not obliged to consider that conduct in the confined way that the Minister posited. It was open to the Tribunal to consider the applicant’s conduct in 2010 in escaping and working (at an unspecified time) between 2010 and 2015 as it did. It did not make or need to make an express finding about her working during that period.

73    The Tribunal addressed the question posed by s 501(6)(d)(i), namely, the risk of the applicant engaging in criminal conduct in the future. It had regard to her history (including her conduct in the period 2010 to 2015) and formed its assessment of the risk of the applicant offending in the future. Even if the Tribunal had made a mistake in making findings of fact, or omitting or failing to make a finding, that the applicant’s conduct in escaping or working was an offence, nonetheless, it had regard to that very conduct in assessing the risk under s 501(6)(d)(i).

74    Gleeson CJ, Gummow, Kirby and Hayne JJ held in Corporation of the City of Einfeld v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] that there is no “error of law in simply making a wrong finding of fact”. The Tribunal did not make a finding about the applicant’s conduct during 2010 to 2015 by analysing whether or not it was criminal. It did not need to characterise that conduct, which it considered in detail, as criminal in order to assess whether there was a risk, in the future, that the applicant would engage in criminal conduct. The Tribunal’s omission of which the Minister complained, at best, can only be characterised as a failure to make a finding of fact that the statute did not require the decision-maker to make under s 501(1) or (6)(d)(i). The Tribunal was required under s 501(6)(d)(i) to examine the risk of the applicant’s future conduct based on her past conduct. It evaluated her past conduct of her escape and working at some time in the five year period without expressly attributing to any of that conduct the character of it being an offence.

75    There was material in the transcript of its hearing that indicated that the Tribunal was aware that the applicant’s conduct had the capacity to amount to an offence. However, the transcript showed that the Tribunal was aware that the applicant had not been charged with any offence and, that relevantly at least, she could not be charged for her escape from immigration detention in 2010 because the limitation period of five years, under s 492, had expired.

76    In my opinion, it could have made no difference to the outcome of its assessment of the issues under s 501(6)(d)(i) that the Tribunal failed to characterise the applicant’s escape or working as criminal offending. The Tribunal gave cogent reasons to explain its finding that, in the future, the applicant would not put herself into a position where she could, or would, run the risk of ever going back into prison or immigration detention. It found that she was determined not to place herself into the very position which had justified the earlier finding that Australia owed her non-refoulement obligations as an essential criterion for the grant of a protection visa. It could have made no material difference to the Tribunal’s finding as to the risk of the applicant reoffending in the future for it to have said that her conduct of escaping from detention or working while an unlawful non-citizen prior to her apprehension in 2015 was criminal. Such a characterisation of her conduct would have made no difference to the Tribunal’s assessment that the applicant would do whatever she could to make sure she did not offend in the future: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 136 [35]-[37] per Kiefel CJ, Gageler and Keane JJ, 137 [41] per Nettle J, and 149-150 [76]-[79] per Edelman J. I reject the Minister’s second ground of review.

77    Because the Tribunal did not make a jurisdictional error in finding that the applicant had satisfied it that she passed the character test in respect of s 501(6)(d)(i), the Minister’s final ground of review concerning the use of Direction No 79 in considering the exercise of the discretion in s 501(1), does not arise. The Tribunal found that the applicant did not fail the character test under s 501 by reason of s 501(6)(d)(i). Accordingly, it did not need to consider the matters that Direction No 79 identified as primary considerations, since the substratum for cancellation under s 501(1) had not been enlivened.

What relief should the applicant be granted?

78    The applicant has spent the last four years in immigration detention. The Minister did not give an undertaking as to damages in respect of her ongoing detention. The service of the s 501A(2) notice on 17 October 2019 enlivened the Minister’s power to consider making a decision to set aside the Tribunal’s decision and to refuse to grant the visa under s 501A(2), which is the only posited impediment to her entitlement under s 65(1)(a) to the immediate grant of a protection visa.

79    The applicant answered the Minister’s invitation to satisfy him under s 501A(2) on or about 26 October 2019. The Minister has had ample time now to consider whether or not to make a decision under s 501A(2) to set the Tribunal’s decision aside and to continue to hold the applicant in immigration detention, pending any decision giving effect to s 197C, or in some other way granting her some other visa to enable her to stay in Australia, notwithstanding that the refusal of her application for the protection visa would not give effect to Australia’s non-refoulement obligations.

80    Here, the Minister argued that his consideration under s 501A(2) fell within the meaning of the expression, in s 65(1)(a)(iii), “any other provision of this Act” as a factor that could prevent the grant of the visa.

81    In SZLDG v Minister for Immigration and Citizenship (2008) 166 FCR 230 at 248 [97]-[100], Lindgren J considered whether or not to impose a time limit within which the Minister ought comply with an order in the nature of a writ of mandamus to make a decision under s 501 when other conditions under s 65(1)(a) had been satisfied. His Honour observed that the fact that the Minister was considering the exercise of his power to refuse to grant a visa was relevant to the construction of his obligation under s 65(1)(a) to grant the visa.

82    In my opinion, the grant of the protection visa is not prevented by s 501A(2), unless and until, the Minister refuses to grant the visa. However, reading the Migration Act as a whole, the s 501A(2) notice here is a relevant consideration for the Minister, in exercising his powers and functions under s 65(1)(a), to take into account when considering to grant an application for a visa. That is because, if he were to exercise his exceptional co-extensive statutory powers under s 501A(2) to refuse to grant the visa, that decision would render a grant futile.

83    It is not clear how the Minister intends to give effect to Australia’s non-refoulement obligations were he to refuse to grant the applicant a protection visa under s 501A(2). If he exercised that power, the Minister will have to consider how to give effect to those non-refoulement obligations with appropriate expedition, having regard to s 197C. However, that is not a matter before me.

84    In these circumstances, I am satisfied that the deprivation of the applicant’s liberty while she awaits a final decision, after over four years in which her application for the visa has been pending, has created sufficient urgency to justify the imposition of a time limit for the Minister to make a decision under s 65(1)(a). Accordingly, it is appropriate to specify a reasonable timeframe within which the Minister must make a decision whether to grant the protection visa and for which there is no barrier, other than the possible use of s 501A(2), standing.

85    The applicant seeks a declaration that the Minister’s consideration of whether he will exercise his power under s 501A(2) does not prevent the grant of the visa. The Minister argued that I should not make such a declaration because it was inutile or not appropriate.

86    I am opinion that the proper construction of s 65(1), in the circumstances here, is that the Minister’s consideration of the possible exercise of his powers under s 501A(2) does not, of itself, operate to prevent the grant of the visa. That is part of the controversy between the parties and an issue between them. Other provisions in s 65(1)(a)(iii) relate to, for example, a visa applicant’s use of bogus documents which, if that occurs, enlivens a mandatory requirement not to grant the visa.

87    Unlike s 501(1), which creates a power only to refuse to grant a visa, s 501(2), (3) and (3A) and s 501A(2) create powers to cancel, or refuse to grant, a visa if a relevant statutory condition is or is not satisfied. The prospect that a visa may be refused or, if granted, cancelled, in some circumstances, might be a reason not to grant the visa under s 65(1). It may also be that s 501A(2), itself, enables the Minister, after a visa is granted, to cancel it and to set aside a decision of the Tribunal that had directed that it be issued. Indeed, the concept that such a visa could be cancelled after its grant under s 501A(2), as opposed to its grant being refused, suggests that the power or obligation to grant a visa under s 65(1)(a) has already been exercised, and gives the Minister power to reverse that by cancelling that visa. Accordingly, I am of the opinion that I should make a declaration as sought.

Conclusion

88    For these reasons, I am of opinion that the Minister should be required, by an order in the nature of a writ of mandamus, to make his decision under s 65(1) of the Migration Act in respect of the grant of the protection visa on or before 6 December 2019. I will also make a declaration that the possible use of s 501A(2) does not prevent, within the meaning of s 65(1)(a), such a grant. The Minister’s originating application should be dismissed and he should pay the applicant’s costs of both proceedings.

Associate:

Dated:    5 December 2019