FEDERAL COURT OF AUSTRALIA

AEM20 v Minister for Home Affairs [2020] FCA 623

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue, quashing the decision made personally by the respondent on 13 November 2019 to refuse to grant the applicant a Safe Haven Enterprise (Class XE) visa under s 501(1) of the Migration Act 1958 (Cth).

2.    A writ of prohibition issue, prohibiting the respondent and his delegates, servants and agents from acting upon, or giving effect to, the decision.

3.    The applicant be released forthwith from immigration detention.

4.    The respondent pay the applicant’s costs.

5.    The respondent file an affidavit by 1pm AEST today confirming compliance with order 3.

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    Subsection 501(1) of the Migration Act 1958 (Cth) confers a discretion on the Minister 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 set out in subs 501(6).

2    This case is concerned with a decision made by the Minister personally to refuse to grant a Safe Haven Enterprise (Class XE) visa (SHEV) on this basis. According to his Statement of Reasons, the decision was made under subpara 501(6)(ba)(i) of the Act, which at the time of the decision provided that, for the purposes of s 501, a person does not pass the character test “if … the Minister reasonably suspects that the person has been or is involved in conduct constituting … an offence under one or more of sections 233A to 234A (people smuggling)”, regardless of whether the person or another person has been convicted of “an offence constituted by the conduct”. The applicant applies under s 39B of the Judiciary Act 1903 (Cth) for constitutional writs to quash the Minister’s decision and to prevent his officers, employees and agents from giving effect to it. The applicant challenges the legality of the Minister’s decision on a number of grounds. For the reasons that follow, the challenge is well-made and the orders he seeks should be made.

Background

3    The applicant is a 39 year-old Afghan citizen of Hazara ethnicity who has lived in Australia for nearly a decade. He is currently in immigration detention, although he lived in the community, under a bridging visa, from 2012 until the Minister made the decision under review in November 2019.

4    The applicant fled Afghanistan in 2009. He arrived in Australia by boat from Indonesia on 19 August 2010 without a visa. In a Statement of Claims dated 10 December 2010, submitted with a request for a Refugee Status Assessment, he stated that he feared persecution in Afghanistan because of his ethnicity and religion and because he had been identified by the Taliban as a Hazara who had assisted US forces in Afghanistan XX XXXXXXX XXXXX XXXXXXXXX XX XX XXXXXXXXXXX XXX XXXXX XXXXXXXX. He claimed to be a specific target of the Taliban. He explained that the Taliban knew of his work with the US forces and had threatened to kill him. The applicant also described his attempts to reach Australia, including assistance he provided to a people smuggler in order to secure his passage, a subject to which I will return shortly.

5    The application for a SHEV was lodged on 13 October 2015, presumably after permission to do so was granted under s 46A(2) of the Migration Act. It was supported by a Statement of Claims. In a submission by the Refugee Advice and Casework Service (RACS) in support of the application, the following reasons for the applicant’s fears were given:

    imputed political opinion as a supporter of the international community and international military forces and an opponent of the Taliban and other insurgent groups;

    imputed religion as an apostate because he does not practise Islam, and has lived in Australia for several years, and has a long history of working for the international forces and international organisations;

    membership of a particular social group, namely people who are perceived as being associated with, or supportive of the international forces, the international community and western countries;

    ethnicity as an Hazara; and

    imputed religion as a Shia because of his Hazara ethnicity.

6    The SHEV is a class of temporary protection visa. Its purpose, according to s 35A(3B) of the Act, is twofold: “to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia”. The primary criteria for the grant of a SHEV are the same as those which apply to other protection visas.

7    On 12 December 2012, well before the applicant was invited to apply for a SHEV, the Australian Federal Police wrote to the Minister’s Department stating that it had “concerns that [he] was involved in people smuggling and [was] applying for protection in order to obtain further benefit from illegal activities”. The AFP added that it was also “possible” he was providing the Department with false information “in order to obtain benefit by deception”. The author of the letter, whose name was redacted, stated that the applicant was no longer the subject of an AFP investigation and had refused to be interviewed in relation to the allegation. The evidence, I interpolate, indicates that the applicant’s refusal to be interviewed was based on legal advice. The author of the AFP’s letter noted that the applicant had disclosed to a Serco officer that he had assisted people smugglers in Indonesia by arranging accommodation for passengers and had collected money from them. The letter referred to statements taken from six “passenger witnesses” who, it stated, had identified him from a photo board. Four allegedly stated that they had paid him various amounts of money to travel to Australia. One said that the applicant took him to a house but insisted he had never paid him any money. Another said that the man he identified as the applicant “told us that he was the smuggler who had arranged our trip from Indonesia to Australia and that we had to pay him”.

8    In his Statement of Claims the applicant disclosed the following matters. He came to Australia via the UAE, Malaysia and Indonesia. While in Indonesia he paid a people smuggler $3,500 but the trip was aborted after six or seven hours. He then found a second smuggler to whom he also paid money but received nothing in exchange. He later spoke to a third smuggler, a man to whom he was distantly related by marriage. Having regard to his then parlous financial state and the danger facing him if he were to return to Afghanistan, he felt he had no option but to agree to a proposal made by this man to organise “some housing for another group” in exchange for which the applicant would pay him all the money he had with him so that he could join the proposed trip. The applicant organised accommodation for about 90 people. About six weeks later, he travelled with a group to Surabaya where he and the other members of the group were arrested and he was taken to a detention centre in Bogur. In Bogur, he was accused by the police of assisting the people smugglers. He told the police that all he had done was find housing for some of the groups in order to fund his trip. They told him this was a form of assisting the smugglers and called the AFP, who provided him with assistance. He was acquitted by the Indonesian courts of any wrongdoing and released from detention. After he was released, he contacted his family, asking them to sell their house in order to raise the money for his trip to Australia. He later paid an “Arabian smuggler” $4,500 but lost that money too after the boat broke twice at sea and had to return to Jakarta. On return to Jakarta, the applicant found yet another smuggler to whom he paid $3,000 and finally made it to Australia.

9    The SHEV application was considered by an officer in the Minister’s Department (the reviewing officer) who reviewed documents and also interviewed the applicant. After the interview, additional documents were forwarded to the Department by RACS regarding “issues of concern that were raised at the interview”. After considering all the material, the reviewing officer was satisfied that the applicant had met the primary criteria for a protection visa. In his decision record, published on 13 February 2018, the officer described the applicant’s testimony on all aspects of his claims as “detailed, spontaneous, and fully consistent with what he [had] previously provided to the department” and found him to be “a credible and honest witness”. The reviewing officer’s opinion was apparently consistent with the opinion formed by the officer who undertook the initial Refugee Status Assessment.

10    According to the reviewing officer, in his interview “the applicant provided forthright and detailed information about his involvement” in a “people smuggling venture”, which was also “voluntarily disclosed during the Refugee Status Assessment process”.

11    The reviewing officer was satisfied that the applicant was a genuine refugee. He found that, if the applicant were to return to Afghanistan, “there is a real chance he would suffer serious harm throughout the country, including potential abduction, serious injury, death, or having his ability to subsist severely threatened, on account of his Hazara race, his perceived Shia religion, and for his membership of a particular social group, that is returnees to Afghanistan”.

12    Although in his Statement of Claims the applicant said that he had been acquitted in Indonesia of any wrongdoing, apparently he later stated that he was unsure of the outcome. He apparently testified at the SHEV interview that, after the last court date, he had been sentenced to six months’ imprisonment and released a week later. On the basis of this evidence and information provided by the Indonesian National Police, the reviewing officer found that the applicant had been convicted in Indonesia of violating Indonesian immigration law by providing support to persons who were in Indonesia illegally. He made the following observations about the applicant’s activities in Indonesia:

There is no evidence to consider that the applicant was an organiser of a people smuggling venture. By his own admission, and as evidenced by information provided by the INP, the applicant’s role in the failed people smuggling venture in 2009 was to act as a go-between between the prospective passengers, and the organiser, who was the husband of his relative. Even by the information provided by the INP, at most the applicant had a low-level role in the venture, assisted coordinating accommodation, in arranging pick-ups of passengers from their accommodation, and perhaps assisting in finding vehicles to transport them, although he denies this last point. He has also said he would collect money from the passengers and deliver this to his relative. He stated he did this, and I accept, to help subsidise his own trip to Australia as part of the same venture, which was disrupted by the INP. He did not obtain any particular financial or other benefit apart from that.

13    The reviewing officer found that the statutory exclusions did not apply. In particular, the reviewing officer considered that the applicant’s conduct would not fall into the category of “a serious non-political crime”, such that he would be excluded from being recognised as a refugee under s 5H(2)(b). He said that it does not appear that the applicant was ever charged or convicted of people smuggling offences in Indonesia, noting that people smuggling offences were not enacted there until 2011. He considered that the “most relevant” Australian offence that might have applied to his conduct in Indonesia was s 233D (“Supporting the offence of people smuggling”), but that in view of the terms of subs 233D (2) it did not apply to him. He wrote:

I have considered that the applicant provided assistance to the people smuggler for the venture that the applicant himself was planning to travel on. He was not the organiser of the venture, and did not [receive] any particular financial or other benefit apart from assisted passage. As such, and as per s233D(2) of the Act, I am not satisfied that the applicant committed any offence while in Indonesia, that would equate to an offence described in section 233D of the Act.

In coming to this conclusion, I also find it a relevant consideration that the AFP, who have had access to the same information considered above, have chosen not to pursue people smuggling charges in Australia against the applicant.

Taking all of the above into consideration, I find that there are not serious reasons for considering that the applicant committed a serious non-political crime before entering Australia.

14    The reviewing officer also found that the applicant was not caught by the exception in para 36(1C)(b), because he had not been convicted in Indonesia of “a particularly serious crime” within the meaning of the Act.

15    Accordingly, the reviewing officer found that the applicant satisfied the criterion for a protection visa set out in para 36(2)(a).

16    On or about 30 August 2018, the applicant received from the Department a “Notice of Intention to Consider Refusal” of the visa under s 501(1) (the August notice). The August notice referred to information in the Department’s possession concerning the applicant’s admitted involvement in people smuggling activities in Indonesia in or about 2009. It included copies of the heavily redacted witness statements supplied by the AFP.

17    Detailed submissions on the applicant’s behalf, signed by Sharara Attai, were lodged with the Department by RACS on 8 October 2018, together with a number of documents including testimonials as to his good character and service to the Australian community.

18    On 20 December 2018, the Department sent a second notice (the December notice) to the applicant informing him that further information had been received which might be taken into account in considering whether to refuse his visa application under s 501(1). The notice enclosed a copy of a recent newspaper article XXXXXXXXXXX XXX XXXXXXXXX XX X XXXXXXXXX XXXXXXXXXX XX X XXXXXXX XXXXXX XXXXXXX XXX XXXXXXXXX XX XXXXXXXX XXXX X XXXXXX XXXXX XXXX XX XXXXXXXXX XXX XXXXXXXXX. The article also reported that the applicant was thought to be seeking permanent residence and indicated the area in which he was then living.

19    In response to this notice, Ms Attai pointed out that the allegations reported in the article were not new but substantially the same as those raised by the Department in its August notice and which RACS had addressed in its response to that notice. She also observed that AFP officers were present at the trial referred to in the article, would have been aware of the evidence, and had already thoroughly investigated the matter but had decided not to pursue charges against the applicant. She repeated a submission made in response to the August notice that the reason the AFP made this decision was “because they could not characterise [the applicant’s] conduct as constituting any of the people smuggling offences under the Act”. She submitted that anything published in the media should be treated with caution since they often have ulterior motives in reporting stories, such as increasing or maintaining readership, which can lead to “sensationalism, selective reporting, hyperbole and statements drafted in a manner as to evoke outrage”. She also referred to the reviewing officer’s consideration of the issue, which had been discussed in the response to the August notice.

20    In her response to the December notice, Ms Attai also submitted that the newspaper article gave rise to additional protection claims. She said that, by making it known that the applicant was seeking protection in Australia, there was “an additional risk to [his] safety”. She advised that the applicant now fears that, due to the publication of the article, the Taliban may think he has converted to another religion. She submitted that this increases his risk of harm, noting that the Taliban and other extremist groups are “particularly hostile to those who have returned from the West”. She further advised that the applicant fears that the article increases the risk of harm to him and his family from people who had paid money to smugglers and who wanted to harm him because they could not get to the smugglers themselves. She said that the applicant had had been threatened by these people in the past and he had instructed RACS that they had already visited his house in Pakistan. She reported that the applicant contends that the article gives them “more reason to want to harm him”.

The Minister’s reasons

21    The Minister’s reasons were incorporated in his Statement of Reasons, which was attached to a letter sent by the Department to RACS on 6 December 2019, notifying the applicant of the decision. The court book, which contained the evidence upon which the parties relied, did not contain any Departmental advice, submission, note or recommendation, although it is inconceivable that the Minister did not receive one and it was once routine on an application such as this for such a document to be tendered. Nor is there any evidence that what was provided to the Court was a complete record of the material before the Minister. Compare the observations by Mortimer J in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [19].

22    The Minister began his reasons by noting that, by the operation of s 501F(3), the effect of his decision was that any visa held by the applicant (“other than a protection visa or visa specified in the regulations”) had been cancelled so that he was now without a visa and, having regard to s 501F(2), he also had “no unfinalised visa applications”.

23    The Minister then turned to the character test, first setting out the terms of para 501(6)(ba). Having done so, he said that he had had regard to the applicant’s conduct and considered the information before him. That information, he went on to say, “indicates that [the applicant] has been involved in behaviour that constitutes an offence under sections 233A to 234A that of people smuggling”. At this point the Minister purported to identify “conduct constituting an offence of people smuggling or trafficking”. He referred to the information supplied to the Department by the AFP and very briefly summarised it. He also referred to a summary of the applicant’s SHEV application, without identifying its source, and to the newspaper article. He then stated that, “[h]aving given full consideration to all the information” before him, he had formed “a reasonable suspicion that [the applicant] has been involved in conduct constituting an offence under one or more of sections 233A to 234A (people smuggling) even though [the applicant] has not been convicted of an offence constituted by the conduct”. Consequently, he was not satisfied that the applicant passes the character test and accordingly found that he did not “by virtue of s501(6)(ba)”.

24    The Minister then set out the matters he said he had taken into account in the exercise of his discretion. They were “the Government’s commitment to protecting the Australian community from harm as a result of people smuggling by non-citizens”, asserting that there is “a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct”; the risk the applicant may pose to the Australian community, which he concluded was “very low”; the expectations of the Australian community, which he said were that “non-citizens who are involved in people smuggling in Australia or elsewhere can and should have their visa refused”; international non-refoulement obligations owed to the applicant; the impact detention could have on the applicant’s mental health issues and other health problems; and the impact of the applicant’s removal from Australia on family members in Australia, noting that the applicant has been in a de facto relationship with an Australian citizen since December 2016 and finding that his removal would cause her “disappointment, sadness and emotional hardship”. The Minister also acknowledged that visa refusal would have an impact on the applicant’s family overseas.

25    The Minister concluded that, despite the factors in the applicant’s favour, the discretion should be exercised to refuse to grant his application for a SHEV since the applicant “represents an unacceptable risk of harm to the Australian community” and “the protection of the Australian community outweighed [the] countervailing considerations”.

The challenge to the Minister’s decision.

26    By a further amended application the applicant raises the following grounds:

1.    The Minister erred in relying on ss.“233A to 234A” of the Migration Act in finding that the applicant did not pass the character test in terms of s 501(6)(ba) of the Act.

Particulars

(a)    The applicant’s conduct was not an offence under the Migration Act at the time it is alleged to have occurred. Neither s 233A, nor s. 233B, nor s. 233C as they existed in 2009 when the applicant’s conduct in breach of those provisions was said to have occurred said anything about “people smuggling”.

(b)    Section 234A did not exist in 2009, when the applicant’s conduct in breach of those provisions was said to have occurred.

2,    In the event that the Minister did not err as pleaded in ground 1 above, the Minister erred in the exercise of his jurisdiction in that he failed to make findings as to the applicant’s specific conduct said to come within s 501(6)(ba)(i) of the Migration Act.

3.    The Minister failed to complete the exercise of his jurisdiction in that he failed to evaluate what he described as “additional protection claims” described at [44] to [46] inclusive of his reasons for decision and was thus unable to take into account such evaluation in his consideration of whether to exercise his discretion pursuant to s. 501(1) of the Migration Act.

4.    The Minister failed at [49] of his reasons for decision, to engage in an active intellectual process, and acted in a manner that was legally unreasonable.

Particulars

(a)    The Minister could not have reasonably reached a conclusion that he may decide to grant the applicant a visa pursuant to s 195A of the Migration Act in view of reasons that he gave for refusing the applicant’s application for a Protection Visa.

(b)    That being so, the Minister failed to address the inevitable consequence of his refusal to grant the applicant’s Protection Visa, that being that the applicant would have to be refouled as soon as reasonably practicable pursuant to ss 197C and 198 of the Migration Act because there was no reasonable basis on which the grant of any other visa could occur having regard to reasons that he gave for refusing the applicant’s application for a Protection Visa.

5.    The Minister’s decision was legally unreasonable.

Particulars

(a)    [deleted];

(b)    The finding at [64] that the Minister could not rule out the possibility of the applicant engaging in “other serious conduct” and the conclusion therefrom at [67] that the applicant represents an “unacceptable risk of harm to the Australian community” lacked a rational or evidential basis in that:

    (i)    There was no evidence or suggestion, or suspicion that the applicant had exhibited any inclination to engage in such conduct;

(ii)    There was evidence, summarised at [28]–[30] inclusive of the Minister’s reasons, that the applicant’s conduct in Australia had been exemplary.

(iii)    The conduct that the applicant admitted being engaged in in Indonesia was for the purpose of securing his own safety.

6.    The Minister acted beyond his power by purporting to refuse the applicant’s application for a Protection Visa pursuant to s 501(1) of the Migration Act

Particulars

(i)    The applicant’s application for a Protection Visa was lodged after the coming into force of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135 of 2014) (the 2014 amendments)

(ii)    Since the coming into force of the 2014 amendments, s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and precludes the Minister using s 501(1) as a basis to refuse to grant a protection visa.

The statutory framework

27    Section 65 relevantly provides that, after considering a valid application for a visa, the Minister “is to grant the visa” if satisfied that the health and other criteria for the visa prescribed by the Act and regulations have been satisfied, the visa application charge has been paid, and the grant of the visa is not prevented by certain provisions of the Act, including s 501 or some other provision of the Act or any other law of the Commonwealth.

28    The primary criteria for a protection visa are set out in s 36 of the Act, which relevantly provides as follows:

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not 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).

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

    Note: For paragraph (b), see section 5M.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee[.]

    …

29    “Refugee” is defined in s 5H(1) to include a person who is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country. This provision does not apply, however, if the Minister has “serious reasons for considering that … the person has committed a crime against peace, a war crime or a crime against humanity …” (para 5H(2)(a)); “the person committed a serious non-political crime before entering Australia” (para 5H(2)(b)) or “the person has been guilty of acts contrary to the purposes and principles of the United Nations” (para 5H(2)(c)).

30    A person has a well-founded fear of persecution if the person meets the criteria in subss 5J(1) and (4) and is not excluded by subss 5J(2) and/or (3). Subsection 5J(1) provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(Original emphasis.)

31    A person who is in the migration zone without a visa is an “unlawful non-citizen” within the meaning of the Act: see ss 13 and 14. A person an officer knows or reasonably suspects is in the migration zone without a visa must be detained by the officer (s 189) and must be kept in immigration detention until the person is removed from Australia or granted a visa (s 196).

32    Section 501 relevantly provides:

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).

(2)    The Minister may cancel a visa that has been granted to a person if:

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

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

…

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

    …

(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[.]

33    At the time of the Minister’s decision, the people smuggling offences were contained in Subdivision A of Division 12 of the Act, entitled “Offences etc. in relation to entry into, and remaining in, Australia”. The relevant terms of the subdivision are set out below. There are seven offences within ss 233A to 234A:

Subdivision A—People smuggling and related offences

228A Application of Subdivision

This Subdivision applies in and outside Australia.

…

233A    Offence of people smuggling

(1)    A person (the first person) commits an offence if:

(a)     the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and

(b)     the second person is a non-citizen; and

(c)     the second person had, or has, no lawful right to come to Australia.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2)     Absolute liability applies to paragraph (1)(b).

Note:     For absolute liability, see section 6.2 of the Criminal Code.

(3)    For the purposes of this Act, an offence against subsection (1) is to be known as the offence of people smuggling.

233B Aggravated offence of people smuggling (danger of death or serious harm etc.)

(1)     A person (the first person) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence) in relation to another person (the victim) and either or both of the following apply:

(b)    in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment (within the ordinary meaning of that expression);

(c)     in committing the underlying offence:

(i)     the first person’s conduct gives rise to a danger of death or serious harm to the victim; and

(ii)     the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.

(2)     There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.

(3)     To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.

(4)     In this section:

serious harm has the same meaning as in the Criminal Code.

233C Aggravated offence of people smuggling (at least 5 people)

(1)     A person (the first person) commits an offence if:

(a)     the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and

(b)     at least 5 of the other persons are non-citizens; and

(c)     the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.

(2)     Absolute liability applies to paragraph (1)(b).

Note: For absolute liability, see section 6.2 of the Criminal Code.

(3)     If, on a trial for an offence against subsection (1), the trier of fact:

(a)     is not satisfied that the defendant is guilty of that offence; and

(b)     is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;

the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

233D Supporting the offence of people smuggling

(1)     A person (the first person) commits an offence if:

(a)     the first person provides material support or resources to another person or an organisation (the receiver); and

(b)     the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2)     Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:

(a)     the first person; or

(b)     a group of persons that includes the first person.

(3)     To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.

233E Concealing and harbouring non-citizens etc.

(1)     A person (the first person) commits an offence if:

(a)     the first person conceals another person (the second person); and

(b)     the second person is a non-citizen; and

(c)     the first person engages in the conduct with the intention that the second person will enter Australia in contravention of this Act.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2)     A person (the first person) commits an offence if:

(a)     the first person conceals another person (the second person); and

(b)     the second person is an unlawful non-citizen or a deportee; and

(c)     the first person engages in the conduct with the intention of preventing discovery by an officer of the second person.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(3)     A person (the first person) commits an offence if:

(a)    the first person harbours another person (the second person); and

(b)     the second person is an unlawful non-citizen, a removee or a deportee.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

234 False documents and false or misleading information etc. relating to non-citizens

(1)     A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

(a)     present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;

(b)     make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular; or

(c)     deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.

(2)     A person shall not transfer or part with possession of a document:

(a)     with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or

(b)     where the person has reason to suspect that the document may be so used.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

234A Aggravated offence of false documents and false or misleading information etc. relating to non-citizens (at least 5 people)

(1)     A person must not, in connection with:

(a)     the entry or proposed entry into Australia, or the immigration clearance, of a group of 5 or more non-citizens (which may include that person), or of any member of such a group; or

(b)     an application for a visa or a further visa permitting a group of 5 or more non-citizens (which may include that person), or any member of such a group, to remain in Australia;

do any of the following:

(c)     present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document that the person knows is forged or false;

(d)     make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that the person knows is false or misleading in a material particular;

(e)     deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise give, or cause to be given, for official purposes of the Commonwealth, a document containing a statement or information that the person knows is false or misleading in a material particular.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.

(2)     A person must not transfer or part with possession of a document or documents:

(a)     with the intention that the document or documents be used to help a group of 5 or more people, none of whom are entitled to use the document or documents, or any member of such a group, to gain entry into or remain in Australia, or to be immigration cleared; or

(b)     if the person has reason to suspect that the document or documents may be so used.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.

Was the Minister’s reliance on ss 233A to 234A beyond power (ground 1)?

34    Ground 1 is inelegantly phrased. In substance, the applicant’s allegation is that the Minister’s decision that he was satisfied that the applicant did not pass the character test was infected by jurisdictional error because the conduct in which he was suspected to have been involved occurred before the commencement of the Anti-People Smuggling and Other Measures Act 2010 (Cth) (Anti-People Smuggling Act), which introduced the people smuggling offences in ss 233A to 234A. The applicant submitted that the Act did not operate retrospectively and that the Minister could not reasonably have suspected that the applicant had been involved in conduct constituting such an offence when no such offence existed at the time of the relevant conduct. He referred to the following statement of principle made by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

The applicant argued that, had Parliament intended these provisions to apply retrospectively, it would have said so.

35    It is common ground that if the applicant is correct, the Minister’s decision was invalid; he had no power to make it.

36    The Anti-People Smuggling Act which, among other things, amended the Migration Act, did not commence until 1 June 2010. It is not in dispute that on the material before the Minister that any conduct that could conceivably amount to an offence under ss 233A to 234A occurred before that date and no later than 2009.

37    The effect of the Anti-People Smuggling Act is set out in the Explanatory Memorandum to the Bill.

38    Contrary to the assumption underlying the applicant’s submission, some of the offences to which para 501(6)(ba) refers were offences at the time of the relevant conduct.

39    Section 233A (people smuggling) replaced the former para 233(1)(a); s 233C (aggravated offence of people smuggling involving at least five people) replaced s 232A, and s 233E (concealing and harbouring non-citizens etc.) replaced former paras 233(1)(b) and (c) and subs 233(2). Section 234A was a relocation of the former s 233A with a new title to “better [reflect] the offence contained in the section”.

40    That said, following the amendments introduced by the Anti-People Smuggling Act, some of the older offences became easier to prove. The effect of inserting the subsections imposing absolute liability for certain elements of the offences was to deprive an accused person of the defence of mistake of fact (see Criminal Code, s 9.2, in the Schedule to the Criminal Code Act 1995 (Cth)).

41    Section 233B (aggravated offence of people smuggling involving exploitation or danger of death or serious harm), however, was a new offence. So, too, was s 233D (supporting the offence of people smuggling), the offence the reviewing officer considered “most relevant” to the applicant. In his second reading speech in support of the Bill, the Hon Scott Morrison MHR, then the Minister for Immigration and Border Protection, told the House of Representatives that the new offence of supporting the offence of people smuggling would not apply to persons who pay smugglers to facilitate their own passage to Australia.

42    The question here, however, is not whether the Anti-People Smuggling Act applies retrospectively. The question is whether the Minister could lawfully form a reasonable suspicion that the applicant was involved in conduct constituting an offence under ss 233A to 234A if the conduct was not an offence at the time of his involvement or, more accurately, whether para 501(6)(ba) extends to conduct which preceded the commencement of those provisions.

43    The answer to this question turns on the proper construction of para 501(6)(ba).

44    That task starts and finishes with the text, but from beginning to end the text is construed in context: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [37] (Gageler J). See also Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). As Kiefel CJ, Nettle and Gordon JJ put it in SZTAL at [14]:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

45    Having regard to context “not at some later stage” means not when ambiguity might be thought to arise. Context “in its widest sense” includes the existing state of the law and the mischief it was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

46    The immediate context of a provision in a statute may include its surrounding provisions or the entire Act and the wider context may include the legislative history, including the circumstances at the time of its enactment, the background of other legislation, “judge-made law”, the Constitution, and any other matter that could rationally assist in ascertaining its meaning: AM Gleeson QC, “The meaning of legislation: Context, purpose and respect for fundamental rights” (2009) 20 PLR 26 at 29.

47    The Minister submitted that, properly construed, para 501(6)(ba) “does not stipulate that the conduct constituting an offence under one or more of ss 233A to 234A needed to be an offence under any of those provisions when the conduct was engaged in”. Rather, he submitted, the focus of the provision is on the Minister’s reasonable suspicion that the person “has been or is” involved in conduct constituting one or more of those offences. He stressed the use of the present participle (“constituting”). He argued that, contrary to the applicant’s construction, the provision “in its terms” requires the Minister to consider whether, on the state of the law at the time of the Minister’s decision, the conduct in which the person was, or is, involved constituted an offence. He argued that his construction not only accords with the plain meaning of the text but is consistent with the object and purpose of the provision in the context of the Act as a whole, noting the observation of Griffiths J as to the breadth of the Minister’s powers under s 501(2) in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [70].

48    I do not find the Minister’s argument persuasive.

49    The observation of Griffiths J about the breadth of the Minister’s cancellation powers are not to the point, even if his Honour’s remarks apply with suitable modifications to visa refusal decisions. His Honour’s remarks related to the discretion, not the character test. They do not assist in resolving the question as to how para 501(6)(ba) should be construed.

50    Neither party identified the object and purpose of para 501(6)(ba). Section 501 appears in Pt 9 Div 2 of the Act. Part 9 is entitled “Miscellaneous” and Div 2 “Other”. It contains no statement of objects or purpose. Self-evidently, subs 501(1) is intended to give the Minister the power to refuse to grant a visa to a person who cannot demonstrate to the Minister’s satisfaction that he or she does not fall within one or other of the categories listed in subs (6). The Minister’s argument that his construction is consistent with the object and purpose of the provision simply begs the question.

51    The text is ambiguous.

52    The better view is that the conduct in which the person has been or is involved must have occurred after the commencement of the Anti-People Smuggling Act, if not also after the commencement of para 501(6)(ba).

53    First, while the use of the present participle “constituting” might suggest, as the Minister contended, that the conduct need not have occurred only after the commencement of the relevant sections, the use in para 501(6)(ba) of the perfect tense (“has been involved”) rather than the imperfect (“was involved”) suggests otherwise.

54    Second, it is by no means clear that the intention of the Parliament was to capture conduct which, at the time of the Minister’s deliberations, constituted an offence under one or more of the relevant sections but was not an offence at the time the conduct took place. Had that been the case, in addition to the concluding clause (“whether or not the person … has been convicted of an offence constituted by the conduct”), one might have expected to see words to the effect “and whether or not the conduct was an offence at the time the Minister suspects it occurred”.

55    Third, para 501(6)(ba) must be interpreted in accordance with the principle of legality. The presumption against retrospectivity is an aspect of that principle.

56    In Coco v The Queen (1994) 179 CLR 427 at 437, Mason CJ, Brennan, Gaudron and McHugh JJ observed that:

The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

Read in context, the reference to “fundamental rights” includes fundamental freedoms and immunities.

57    The presumption may be displaced by implication, but only if the implication is “necessary to prevent the statutory provisions from becoming operative or meaningless”: Coco at 438. No such implication is necessary here. There is ample scope for the operation of the relevant provisions without it.

58    Ambiguity in statutory language is to be construed, so far as can be accommodated in the words used, not to infringe upon fundamental rights: Re Bolton; ex parte Beane (1987) 162 CLR 514 at 523; Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 372. In Sciascia, to which I will return shortly, Burchett and Lee JJ said (at 372) that both retrospectivity and curtailment of liberty when found in a statute, “are strong pointers towards a construction strictly confining its operation”. See also Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at [108]–[113] (Black CJ, French and Weinberg JJ).

59    The basis of the presumption against retrospectivity is “simple fairness”: L’Offıce Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 at 525. In Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 (AEU v FWA) at [30] French CJ, Crennan and Kiefel JJ observed that:

In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality, which also applies the constructional assumption that Parliament will use clear language if it intends to overthrow fundamental principles, infringe rights, or depart from the general system of law.

60    The greater the degree of unfairness or injustice arising from the retrospective operation of a law, the less likely it is that Parliament intended the amendment to apply retrospectively: Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 at [59] (Spigelman CJ); AEU v FWA at [31]–[32].

61    Fourth, this Act, like any other, is to be construed so as to avoid, if possible, a breach of Australia’s international obligations; if the statutory language is sufficiently clear, effect must be given to it: Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [153] (Heydon J). These obligations include the obligations under the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 (as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967). Article 33 of the Convention prohibits the expulsion or return of a refugee against his or her will (refoulement), “in any manner whatsoever”, to a territory where he or she fears threats to life or freedom, unless there are reasonable grounds for regarding the refugee as “a danger to the security of the country in which he is” or “having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country”. That exception is reflected in s 36(1C) of the Migration Act.

62    If the Minister’s interpretation is correct, it involves imputing to the Parliament an intention to allow the Minister to refuse to grant a visa to, or to cancel a visa held by, a person who is recognised as a refugee — that is a person at risk of serious harm in his or her country of nationality and to whom Australia owes protection obligations — because the Minister reasonably suspects that the person was involved in conduct which at the time it occurred was not an offence under Australian law. In the absence of clear words or necessary implication, that is an intention that should not be inferred.

63    In Sciascia the Full Court was concerned with the proper construction of para 20(1)(d) of the Migration Act. Mr Sciascia was a New Zealander who had been convicted in New Zealand of a number of offences years before he arrived in Australia. At the time of his arrival he did not require an entry permit. But a delegate of the Minister decided he was an “illegal entrant” and ordered his deportation. Mr Sciascia had been convicted in 1967 of burglary and sentenced to six months imprisonment. In 1969 he had been convicted on two charges of common assault and one charge of theft, and sentenced to three months imprisonment on each conviction to be served concurrently. In 1970 he was convicted on one charge of burglary and two of theft, and sentenced to imprisonment on the first charge of six months and to cumulative periods of imprisonment of three months and two months on the two theft convictions. At the relevant time s 14(2) of the Act provided that, where a person to whom s 20(1) applied has entered Australia, whether before or after the commencement of s 14, “then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she: (a) remains in Australia; (b) is not a citizen; and (c) does not hold a properly endorsed valid entry visa”. Paragraph 20(1)(d) provided that subs 20(1) applied to a non-citizen who entered Australia before or after the commencement of s 20 if, at the time of entry, the non-citizen was a person who had been convicted of two or more crimes “and sentenced to imprisonment for a period totalling at least one year”.

64    At first instance, French J held that Mr Sciascia was not an illegal entrant within the meaning of s 14(2) because at no time had he been sentenced to a single or cumulative term of imprisonment exceeding one year. The appeal was dismissed. Burchett and Lee JJ observed at 372:

Persons whose liberties are protected by the common law, who live in our community, are entitled to have laws of the nature of s 20 read with scrupulous care, and in their narrowest, rather than in some wider, sense. That is because s 20 deprives those caught by it of one of their most precious rights, their right of community. There is no limit to its retroactive effect upon a person who may have lived here as a lawful entrant for, perhaps, 20 or more years. The making of a deportation order is the plainest infringement of liberty; the making of it under a retroactive law underlines the common law's concern. Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation.

(Emphasis added.)

65    In the present case, the applicant held a bridging visa at the time of the Minister’s decision. That visa gave him the right, unless and until his SHEV application was lawfully refused, to live in the community. The applicant is currently in immigration detention presumably following the cancellation of his bridging visa in accordance with s 501F(3), the effect of which is to deem the Minister to have cancelled that visa on the making of his decision to refuse to grant him a SHEV. Consequently, the Minister’s decision deprived him of his liberty and his right of community.

66    Save in certain cases, the statutory consequences of a decision to refuse to grant a visa under s 501 are that all other visas held by the person are cancelled, any pending applications are refused, and the person becomes an unlawful non-citizen who must be detained in accordance with s 189. In some cases, of which this is one, the likely, if not inevitable, consequence of such a decision is removal to a country where the person is exposed to the risk of serious harm, including death, or indefinite detention.

67    Subparagraph 501(6)(ba)(i) was inserted in the Act by Schedule 1, item 10 of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) and commenced on 11 December 2014. The Explanatory Memorandum to the Bill sheds no light on how it should be interpreted. Clause 43, which describes the legislative purpose, merely states:

The purpose of this amendment is to ensure that a person does not pass the character test if the Minister reasonably suspects that the person has been involved in one of the listed serious offences, without requiring that the person has been convicted of the offence.

68    At the time of the relevant conduct, there was no similar provision. Subsection 501(6) provided:

(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

(b)    the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal 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 significant 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.

Otherwise, the person passes the character test.

(Original emphasis.)

69    The effect of the Minister’s construction is that he is entitled to refuse to grant (or to cancel) a visa on a ground not open to him at the time the relevant conduct took place. Such a construction would also offend against the principle of legality.

70    For all these reasons ground 1 should be upheld. It was not open to the Minister to be reasonably satisfied that the applicant had been involved in conduct that did not constitute an offence at the time it occurred.

Did the Minister err in the exercise of his jurisdiction by failing to make findings as to the applicant’s specific conduct said to come within subpara 501(6)(ba)(i) (ground 2)?

71    This is the full extent of the Minister’s reasons for finding that the applicant failed the character test:

7.     The Australian Federal Police (AFP) state that they received Information that [the applicant] had been involved in people smuggling offshore or in Australia. During an investigation X XXXXXX XX XXXXXX XXXXXXXXX identified [the applicant] as one of the smuggling agents that they had dealt with in Indonesia, prior to their travel to Australia. [The applicant], himself, has disclosed to SERCO officer while being held in immigration detention that he assisted the people smugglers in Indonesia by arranging accommodation for passengers and collected money from them.

8.    Further witness statements taken by the AFP have identified [the applicant] as a person who took money from and made arrangements for those seeking to enter Australia illegally to apply for asylum. Witnesses state that [the applicant] introduced himself as a people smuggler who was arranging to buy a boat, dealt with police and made other arrangements for their travel to Australia.

9.    In a summary of [the applicant]’s application for a protection visa he states that while attempting to secure passage to Australia, he assisted a people smuggler in arranging accommodation for other asylum seekers in exchange for discounted passage to Australia. When the group [the applicant] had assisted were travelling through Indonesia en-route to the embarkation point to travel to Australia, they were caught by the Indonesian police. [The applicant] stated that he was accused by the police of assisting the people smugglers. Others in the group informed the police that [the applicant] had assisted with finding them accommodation.

10.    [The applicant’s] protection visa application summary states that Indonesian authorities confirmed that [the applicant] was arrested in Indonesia XX XXXXXXX XXXX, XX XX XXX XXXXXXXX XX X XXXXX XX XXXXXXX XX XXXXXX XXXXXXXX XX XXXXXXXXX, XXXXX XXXX XXXXX XXXXX XXXXXXX. [The applicant] and his associates provided vehicles to transport the Afghan citizens and arranged to pick them up from various locations. The Indonesian authorities stated they were unable to locate the files related to the case, and no specific confirmation was provided by the Indonesian authorities about whether [the applicant] was convicted of any offences in Indonesia in relation to this or any other matter, although the statement states:

‘According to the statement of an expert witness, suspect [the applicant] and associates was violating Immigration Law of 54 letter (b) which says, an person with intention to hide, protect, providing accommodation, provide living or occupation to any foreign citizen who are known or suspected to be Indonesia illegally’

11.     An article … reported on [the applicant’s] alleged involvement in people smuggling activities. XXX XXX XXXXXXXXX XX X XXXXXX XXXXXXX XX XXXXX XXXXXXXX XXX XXXX XXXX XXXX XXX XXXXXX XXXXXXXXX XXX XX XXX XXX XX XXXXX XXX XXXXXXXXXXXX XXXXXXXXXXX XXXXXXX XXXX XXXXXXXXXXX XX XXXXXX XXXXXXXXX, XXXXXXXX [XXX XXXXXXXXX] XXX XXXXX XXXXXXX.

12.    Having given full consideration to all the information before me in this case I have formed a reasonable suspicion that [the applicant] has been involved in conduct constituting an offence under one or more of sections 233A to 234A (people smuggling) even though [the applicant] has not been convicted of an offence constituted by the conduct.

13.    [The applicant] has not satisfied me that he passes the character test.

72    It can be seen that the Minister merely summarised the material that was before him. He did not indicate what he made of it. There was a conflict between the account the applicant had given to the Department about his activities in Indonesia on the one hand and, on the other, information subsequently sent to the Department by the AFP and that which appeared in the newspaper report. Yet, the Minister did not say which version he accepted. He did not include in his reasons his findings on the material questions of fact upon which his suspicion was based.

73    Section 25D of the Acts Interpretation Act 1901 (Cth) deals with the content of statements of reasons for administrative decisions by Commonwealth decision-makers. It provides:

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

74    Without more, failing to set out the findings on material questions of fact is not a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407; 74 ALJR 405; 58 ALD 609 at [68]–[70]. But it may give rise to jurisdictional error. A provision like s 25D entitles a reviewing court to infer that any matter not mentioned in a statement of reasons was not considered by the decision-maker to be material: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ) and [5] (Gleeson CJ) on s 430 of the Migration Act which is in similar terms. Since the Minister made no finding on what the applicant did that might have amounted to conduct constituting an offence under ss 233A to 234A, it may be inferred that the Minister did not consider that what the applicant actually did or what he suspected the applicant actually did was material. It may also signify that the Minister did not take the matter into account: see AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [61] (Tracey and Mortimer JJ) and the views in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67; 309 ALD 67 at [34] (Katzmann, Griffiths and Wigney JJ). If so, either way, he would have fallen into jurisdictional error.

75    It should also be noted in this context that, in her submissions to the Minister, Ms Attai drew attention to the reviewing officer’s consideration of the applicant’s involvement in “people smuggling” and his conclusion, and urged the Minister, in effect, to come to the same conclusion. That conclusion, it will be recalled, was that “the most relevant offence” and, by inference, the only relevant offence, was s 233D. It will be recalled that that was not an offence at the time any relevant conduct took place. It was also an offence which the reviewing officer considered could not apply to the applicant because the assistance the applicant provided was for “the venture” in which he, himself, would be “smuggled” and that he did not derive “any particular financial or other benefit apart from assisted passage”. These matters were highlighted in Ms Attai’s submission. So, too, was the reviewing officer’s statement that it was relevant that the AFP, which had access to the same information, chose not to charge the applicant. But the Minister made no reference to this submission or to the reviewing officer’s findings on the question.

76    A failure to respond to “a substantial, clearly articulated argument relying upon established facts” can be a denial of natural justice and may also amount to a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 at [24]–[25] (Gummow and Callinan JJ); at [95] (Hayne J); at [87]–[88] (Kirby J).

77    The physical elements of the various “people smuggling” offences are not the same. Neither are the fault elements. While all of these offences are serious, some are more serious than others. Conduct sufficient to constitute one people smuggling offence will not necessarily have the same objective gravity as conduct constituting another. And there will be variations in the range of conduct that may constitute a single offence as well as in the gravity and extent of the offender’s culpability.

78    The maximum penalty for an offence under ss 233A, 233D, 233E or 234 is 10 years imprisonment or 1,000 penalty units. For an offence under ss 233B, 233C or 234A, however, it is twice as much, at 20 years imprisonment or 2,000 penalty units, and there are mandatory minimum penalties for offences under these sections which apply to all offenders other than those who were under 18 years of age at the time the offences were committed: see s 236B. The mandatory minimum penalty for an offence under s 233B is eight years imprisonment: para 236B(3)(a).

79    In her submission in response to the December notice, Ms Attai stated that she had sought clarification from the Department about “what specific offence/s cancellation was being considered under”. She wrote that in response to her inquiry the Department advised that it had “information that [the applicant] may not pass the character test by virtue of s 501(1)(6)(ba) specifically in relation to the Minister reasonably suspects that the person has been or is involved in conduct constituting:

Section 233A - The offence of people smuggling

Section 233D - Supporting the offence of people smuggling.”

80    In his Statement of Reasons, however, the Minister did not say that this was his suspicion. Nor did he make findings about the applicant’s conduct to indicate that he suspected him of having been involved in one or both of these offences. Having regard to the information supplied to the applicant’s representative, it would have been a denial of natural justice to the applicant if the Minister suspected the applicant to have been involved in one or more of the other “people smuggling” offences, without first giving the applicant an opportunity to be heard on the question.

81    On the assumption that the conclusion I have reached about ground 1 is incorrect, it might have been open to the Minister to conclude that the applicant did not pass the character test by forming a suspicion on reasonable grounds that the applicant had been involved in conduct constituting one or more of the seven offences. To do so, however, the Minister first had to identify what he suspected the applicant to have done and on what basis and then consider in which of the offences he suspected him to have been involved. His omission to do so amounts to a constructive failure to exercise jurisdiction: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [80] (Gaudron J). It may also disguise a denial of natural justice.

82    Furthermore, unless the Minister identified what it was he suspected the applicant to have done and in which of the offences he suspected him to have been involved, the Minister could not reasonably determine the weight to be attached to the gravity of the applicant’s conduct in comparison to the other factors he was bound to weigh in the balance. That means that he could not have exercised his discretion according to law.

83    For all these reasons it follows that ground 2 should be upheld.

Did the Minister fail to consider “the additional protection claims” (ground 3)?

84    In Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] Allsop CJ, with whom Markovic and Steward JJ agreed, made the following pertinent observation:

[C]ases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

85    It was not disputed that the Minister was required to consider the additional protection claims or that the consideration had to be meaningful, that is to say that it had to involve “an active intellectual process”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [35]–[46] (Griffiths, White and Bromwich JJ). To make a decision without having considered all the applicant’s claims is to fail to complete the jurisdictional task: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] (Allsop J).

86    The additional protection claims, so-called, arose from the publication of the newspaper article. The Minister referred to them at [44]–[46] of his Statement of Reasons:

44.    Furthermore I note that additional protection claims are now raised due to the publication of the medial [sic,] article which makes the potential consequences of a refusal of his visa application even more significant as it means that it could attract an even more dire consequence for [the applicant] should he be refouled to Afghanistan.

45.    The media article increases [the applicant’s] profile and therefore enhances his protection claims as his name and image was published in a major Australian newspaper. The article makes it publically [sic.] known that [the applicant] is seeking protection in Australia. Given this information has been made public, there is now an additional risk to [the applicant]’s safety if he were to return to Afghanistan as the people he fears there (the Taliban) may now know that he is in Australia. [The applicant] fears that due to the publication of this article if he were to return now the Taliban may think that he has converted to another religion and he may be at an increased risk of harm. Ms Attai states that the Taliban and other extremist groups are particularly hostile to those who have returned from the West and therefore if [the applicant] were to be returned to Afghanistan, there would be an additional risk of harm to [the applicant] by virtue of this article.

46.    I note [the applicant] fears that the media article increases his and his family's risk of harm from the people who were paying smugglers. He states that this is because they have already directly and openly threatened him in the past. He instructs that they have already visited his house in Pakistan as they are angry. He claims that they are angry with the smugglers but because they are unable to harm the smugglers they want to ‘get to them’ through [the applicant]. [The applicant] contends that this article gives them more reason to want to harm him.

87    That was the sum total of the Minister’s “consideration” of these matters.

88    The applicant submitted that the Minister’s purported consideration of these claims was of the same order as the consideration the Assistant Minister gave to certain representations in support of a request for revocation of a decision to cancel a partner visa, which was the subject of the judgment of the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569. Mr Omar was a Somali citizen who had committed a number of criminal offences in Australia, including offences involving violence, in one case leading to a sentence of three years imprisonment (see Omar v Minister for Home Affairs [2019] FCA 279 at [4]). He was mentally ill, having suffered significant trauma in Somalia, and was a diagnosed schizophrenic treated with monthly injections. He had claimed to be at risk of serious harm if he were returned to Somalia. The Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) held at [39]–[46] that the Assistant Minister’s treatment of these matters constituted a failure to engage “fully and meaningfully” with Mr Omar’s representations concerning the risk of harm in Somalia arising from his mental health conditions, advanced, along with other matters, in support of his request for the revocation of the cancellation of his visa on character grounds.

89    In the present case, the Minister argued that he did not fail to evaluate the claims and sought to distinguish Omar. His counsel drew attention to the observation at [41] of the Statement of Reasons that the Department had accepted that the applicant was a person to whom Australia has non-refoulement obligations. He submitted that the Minister had accepted at [45] of the Statement of Reasons that the newspaper article increases the applicant’s profile and therefore enhances his claims to protection.

90    The Minister’s arguments must be rejected.

91    The notation at [41] is beside the point, not least because the representation was concerned with the extent of the risk of harm, not its existence, and the additional claims were based on the publication of material that post-dated the Department’s decision.

92    The statement in [45] is ambiguous. On its face, it suggests that the Minister accepted that the publication of the newspaper article increases the applicant’s profile and so “enhances his protection claims”. Read fairly and in context, however, it is not a finding by the Minister but a recounting, albeit without attribution, of Ms Attai’s submission. The sentence relied upon is taken verbatim from the first sentence of para 4.1 of the submission, omitting only the first two words: “We submit”. It even includes the same grammatical error. The second sentence is identical to the second sentence of para 4.1 of the submission and includes the same spelling error. Paragraph 4.1 of the submission reads:

We submit that this media article increases [the applicant]’s profile and therefore enhances his protection claims as his name and image was [sic.] published in a major Australian newspaper. The article makes it publically [sic.] known that [the applicant] is seeking protection in Australia.

93    The rest of [45] reproduces what appears in the rest of para 4.1 and the whole of para 4.2 of the submission except for the words “we submit”. Paragraph 4.2 of the submission was in the following terms:

We submit that given this information has been made public, there is now an additional risk to [the applicant]’s safety if he were to return to Afghanistan as the people that he fears there (the Taliban) may now know that he is in Australia. [The applicant] fears that due to the publication of this article if he were to return now the Tabliban [sic.] may think that he has converted to another religion and he may be at an increased risk of harm. We submit that the Taliban and other extremist groups are particularly hostile to those who have returned from the West and therefore if [the applicant] were to be returned to Afghanistan, there would be an additional risk of harm to [the applicant] by virtue of this article.

94    The conclusion that [45] of the Statement of Reasons was essentially cut and pasted from the submission is irresistible.

95    It is true, as the Minister’s counsel submitted, that the Minister had no reason not to accept the matters that he sets out in this part of his reasons and he did not say that he doubted or rejected the applicant’s claims. But that is no answer to the applicant’s allegation. Contrary to counsel’s submission, it does not signify that the Minister accepted the submissions or that he intellectually engaged with them. Counsel cautioned against excessive scrutiny of the Minister’s reasons, adverting to the oft-repeated words from Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, that “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. I accept, of course, that “looseness” of language or “unhappy phrasing” (Pozzolanic) should not concern the Court. But a beneficial approach to the reasons does not demand that any ambiguity in them must be resolved in the Minister’s favour: SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J). On no reasonable reading of the Statement of Reasons can it be said that the Minister dealt with the applicant’s representations concerning the additional protection claims in the way the law required of him.

96    Even if the statement in [45] which was relied upon in submissions is to be taken as an acceptance by the Minister that the publication of the article increased the applicant’s profile and “enhance[d]” his claims for protection, that was insufficient to engage with his claims. That is so for at least three reasons. First, the Minister did not say what he made of the applicant’s fears that, due to the publication of the article, the Taliban might think that he had converted to another religion and that this exposed him to an additional risk of harm. He merely noted the submission. Second, and similarly, in [46] the Minister merely noted the representation (made in the submission at [4.3]) that the article increased his and his family’s risk of harm from the people who were paying smugglers. All words following “I note” in [46] of the Statement of Reasons are taken verbatim from Ms Attai’s submission. The Minister did not say whether he accepted the applicant’s claims or considered his fears well-founded or, if he did, what significance he attached to them. Third, the Minister only noted (at [45] of the Statement of Reasons) the submission made at [4.2] that the Taliban and other extremist groups are particularly hostile to those returning from Western countries.

97    As the Full Court explained in Omar at [39]–[40]:

39    Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139; [2019] FCA 216 (Ezegbe) at [32]–[36] per Perram J).

40    That is particularly the case here where representations were clearly made on the respondent’s behalf on a significant matter, namely the risk of harm (and serious harm) if the respondent was returned to Somalia given his individual circumstances and the treatment of persons with mental illness in that country … There had to be an active intellectual engagement with the matters raised on the respondent’s behalf relating to the risk of harm.

(Emphasis added.)

98    In Omar the Assistant Minister made some specific findings in relation to some matters raised by the respondent. The Full Court said at [43](c) that the making of those findings “serves to highlight the matters in respect of which, for no expressed reason, no specific finding is made” and at [43](d) and (e) that the problem was not overcome by the use of such phrases as “[t]aking into account all of the above considerations” or “I considered all relevant matters” or “[h]aving given full consideration to all of these matters”.

99    In Omar, the Full Court held at [45] that “the Assistant Minister’s failure to consider in the relevant legal sense significant matters raised clearly by the respondent in the representations [was] a failure to conform with the Act or, to put it another way, to carry out the relevant statutory function according to law”.

100    As it was in Omar, so it is here. The Minister did no more than note or refer to Ms Attai’s submissions on this issue. He did not indicate what he made of them or the applicant’s claims. He made findings elsewhere in his reasons, including findings in the applicant’s favour. At [32], for example, he said that he accepted that the applicant had “displayed a significant degree of good conduct” since arriving in Australia and, at [33], he said that he accepted that the applicant was not convicted of any offence. Here, as in Omar, however, these findings merely serve to highlight the problem with his purported consideration of this particular issue. Here, as in Omar, the problem is not cured by the Minister’s statement at [61] that he “considered all relevant matters including … information provided by, or on behalf of [the applicant]”. Nor, contrary to the Minister’s contention, is it to the point that the Minister was aware that the applicant was barred from applying for a further protection visa, of the statutory consequences of a refusal decision, the ostensible availability of other powers, or the existence of non-refoulement obligations. The statement at [50] that the Minister had carefully weighed the non-refoulement obligations against the seriousness of his “other serious conduct” does not assist either since Australia had non-refoulement obligations to the applicant before the publication of the article.

101    This is not, as the Minister submitted, in effect, a thinly disguised attempt at merits review. Rather, the Minister did not undertake the active intellectual process of reasoning required of him and so made the same kind of jurisdictional error that was made in Carrascalao and Omar.

102    As in Omar (see [46]), if the Minister had engaged in an active intellectual process with the significant matters raised by the applicant on the increased risk of harm he would face in Afghanistan, he could have come to a different conclusion. One cannot assume that the Minister approached the decision with a closed mind. For this reason, the error is material. See also Chamoun v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 at [70] (Mortimer and Bromwich JJ).

103    Ground 3 should therefore be upheld.

Did the Minister fail to properly consider the prospect that the applicant might be granted a visa in the exercise of his power under s 195A or was his finding to that effect legally unreasonable (ground 4)?

104    Ground 4 challenges the legality of the Minister’s remarks that Australia’s non-refoulement obligations could be met by the exercise of the Minister’s personal non-compellable power to grant a visa under s 195A.

105    Section 195A relevantly provides:

    Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

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

106    At [48]–[49] of the Statement of Reasons the Minister said this:

48.    I am aware that the statutory consequence of a decision to refuse to grant [the applicant] Safe Haven Enterprise (Class XE) visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

49.    I am also mindful that at the time of the insertion of s197C in the Act, the Government indicated that Australia will continue to meet its international non-refoulement obligation through other mechanisms and not through the removal powers in s198. These mechanisms included the use of the Minister's personal non-compellable powers in the Act, including the power in s195A under which I may grant a visa to a person who is in immigration detention if I think it is in the public interest to do so. I am aware that the potential for using s195A in order to meet Australia's international non-refoulement obligations is pertinent to [the applicant]’s case and this potential is encompassed in my consideration of alternative management options in relation to him.

107    The Minister’s point was that the grant of a visa under s 195A was an available alternative management option in this case to be set off against the prospect that the applicant would otherwise be returned to Afghanistan in contravention of Australia’s non-refoulement obligations. The applicant’s argument, in effect, is that the power conferred by s 195A was no more than theoretical; having regard to the Minister’s decision, the prospect that the power under s 195A was available was illusory. For this reason the Minister could not have given the matter any genuine consideration and the Minister’s conclusion that it was an alternative management option was legally unreasonable.

108    In BAL19 v Minister for Home Affairs [2019] FCA 2189 Rares J set aside a decision of the Minister in which a similar statement had been made about the availability of the power in s 195A. That case concerned a Sri Lankan Tamil whom the Minister found had been involved with the LTTE for 10 years, whom the Minister accepted would face a well-founded fear of persecution in Sri Lanka and in respect of whom Australia had non-refoulement obligations. He failed the character test because the Minister considered that if he were allowed to remain in Australia there was a risk that he would represent a danger to the Australian community (see para 501(6)(d)(v)), referring in his reasons to numerous incidents “in which the applicant had acted in a violent and or dangerous way, including in the over nine years while he had been in immigration detention” (see [17]), which he attributed to a serious mental illness, which had been “exacerbated by the detention environment”. Despite recent improvements in his condition, the Minister considered that there was “still a risk that [he] would represent a danger to the Australian community” (see [21]). The Minister decided that the reasons for refusing to grant the visa were outweighed by those in favour of granting it because he could not rule out the possibility of the applicant engaging in serious conduct akin to his past conduct in immigration detention or the kind of conduct in which he had threatened to engage. Were he to do so, the Minister found that the Australian community could be exposed to significant harm which was “so great that any likelihood that it would occur represents a significant risk to the Australian community” which he determined was unacceptable (see [26]).

109    Rares J said of the Minister’s statement that he could grant the applicant the visa if it was in the public interest to do so using his personal non-compellable power in s 195A (at [42]):

Once the Minister personally refused to grant the applicant a temporary protection visa on the basis that he acted here, knowing that Australia actually owed non-refoulement obligations in respect of the applicant (as a refugee), no reasonable occasion could arise for the Minister to exercise his non-compellable powers to allow the applicant to apply for another substantive visa, absent a substantial and indefinite period of further immigration detention in which a change could occur and, in fact, had occurred to the risk on which the Minister had acted. That consequence must follow because of the Minister’s finding that the risk that the applicant currently posed, on which the Minister acted under s 501(1), necessarily entailed that no reasonable or rational person in the Minister’s position could grant the applicant any visa in the foreseeable future. That is because the grant of any visa would court the very risk that the Minister found decisive in refusing the protection visa. And, indefinite detention to see if, at an indeterminate future time, the applicant’s circumstances had changed materially, is unlawful and precluded by ss 197C and 198.

110    At [43] his Honour described the Minister’s reasoning about the possibility of another visa being granted that could avoid a breach of Australia’s non-refoulement obligations to the applicant as “perfunctory” and likened the applicant’s position to that of the hapless Yossarian in Joseph Heller’s novel Catch 22.

111    His Honour observed (at [45]) that the Minister’s reasons did not explain how the risk that the applicant posed disentitled him to a protection visa having regard to the express terms of s 36(1C). He considered at [48] that no Minister acting reasonably, having made the decision under s 501(1) to refuse the application for a protection visa, could at the same time consider that an application for another visa had any prospect of being granted before the applicant’s removal in accordance with s 198 “as soon as reasonably practicable” after the decision. His Honour held at [52] that the possibility that the Minister might consider using, or use, his non-compellable powers in that way in order to hold a person in immigration detention when there is no bona fide or rational possibility that those powers will be exercised so as to result in the grant of a visa is beyond the Minister’s power, citing Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27–29 (Brennan, Deane and Dawson JJ).

112    The applicant relied on BAL19, which the Minister sought to distinguish. Pointing to the statement by the Minister in BAL19 that he had “found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community”, he submitted that no such finding had been made in the present case.

113    BAL19 is relevantly indistinguishable. Although there are differences between that case and this, the differences are immaterial. Here, the Minister found that, although there was a very low risk that the applicant would offend, the risk was one the Australian community “should not tolerate” and was “unacceptable”. The conclusions Rares J reached about the Minister’s reliance on s 195A of the Act apply equally here. Having found that the risk of harm to the Australian community posed by the applicant’s continuing presence in Australia was unacceptable, the prospect that he might be granted a visa under s 195A is fanciful. In this case, as in BAL19, the Minister did not come to terms with the legal or practical effect of his risk assessment and the consequential refusal to grant the visa, namely that he would have to refoule the applicant in breach of Australia’s international obligations (compare BAL19 at [50]).

114    The Minister’s submission that “it was open to the Minister to recognise he possessed the powers, even if he was under no compulsion to consider exercising [it]”, fails to engage with the applicant’s complaint or the points made by Rares J in BAL19. What room was there for the exercise of the Minister’s non-compellable power to grant the applicant a visa in the public interest when he had already determined that his protection visa should be refused because he posed an unacceptable risk to the Australian community, despite the evidence of his good character and his positive contribution to the community during his time here? The conclusion that there is none is inescapable where the Minister offered none in his reasons or in his submissions to the Court.

115    The Minister contended that the possibility that he might use his power under s 195A cannot be dismissed as unreasonable because “[s]uch considerations of the public interest do not arise in the Minister’s exercise of power under s 501(1)”. That contention, with respect, is absurd. The Minister was not acting under s 501(3), which gives the Minister the power to refuse to grant a visa on character grounds if he is satisfied that refusal is in the national interest. Why, then, would the Minister refuse to grant or cancel a visa unless he believed it to be in the public interest?

116    In any event, while the concept of the public interest is not synonymous with the national interest (see, for example, Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 959 at [34] per Tamberlin J and Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 especially at [18]), there is a considerable degree of overlap, particularly in the present context. Protecting Australians from the risk of serious harm is undeniably in the public interest. Besides, what else did the Minister have in mind when he determined to exercise his discretion to refuse to grant the visa because the applicant “represents an unacceptable risk of harm to the Australian community” and that “the protection of the Australian community” outweighs all other countervailing considerations?

117    Ground 4 should be upheld. The Minister’s opinion that Australia’s non-refoulement obligation to the applicant could be addressed by the use of his non-compellable power to grant him a visa in the public interest was infected by jurisdictional error. Having regard to his findings as to the risk the applicant represents to the Australian community, it is inconceivable that he gave the matter any genuine consideration. If he did, then his opinion was legally unreasonable.

Were the Minister’s findings that he could not rule out the possibility of the applicant engaging in “other serious conduct” and that he represents an “unacceptable risk of harm to the Australian community” legally unreasonable (ground 5)?

118    Under the heading “Risk to the Australian Community”, the Minister noted the RACS submission about the AFP investigation, the newspaper article, the AFP’s decision not to pursue charges against him, and the circumstances in which the applicant found himself in Indonesia. The Minister also noted the submission that the applicant’s conduct stemmed from a desire to reach the safety and security of Australia due to his well-founded fear of persecution in Afghanistan and that he would not engage in such conduct again. He acknowledged the submission that the applicant did not engage in that conduct for profit; the conduct did not involve violence; the applicant had no criminal record in Australia or Afghanistan; he has been “forthcoming with authorities”, and is a person of good character. The Minister also stated:

28.     I note Ms Jemma Hollonds from the Refugee Advice & Casework service (RACS) states that [the applicant’s] conduct stems from mitigating factors that include his desperation to seek a safe life for himself and his family in Australia and not for profit or gain. Furthermore, there is no risk of recidivism, [the applicant] does not have a criminal record, and he has proactively and voluntarily cooperated with all Australian law enforcement and security agencies since he arrived in Australia. [The applicant] is a person of good character who during his two years in immigration detention and five years living in the community has been recognised as an honest, hardworking, and upstanding member of the community. He has volunteered as an English teacher while in detention, volunteered as an interpreter for a Perth charity, participated in a community theatre project with the Red Cross, become a regular visitor at an aged care facility, and has been a valued employee.

29.     I have taken into account the submissions put forth and the character statements provided from [the applicant’s] family, friends, work colleagues, and employers, who all attest to [the applicant’s] good character. Mr Justin Tomlinson from Core Laboratories Australia, states that [the applicant] has integrated himself into the Australian way of life and culture and has been a positive influence in the workplace and a great addition to his company’s diversity.

30.     I also consider that [the applicant] has lent his time and skills to volunteer work with the Australian Red Cross. Ms Ailsa Bowyer comments that [the applicant] has displayed a lot of consideration through his aspirations to contribute beneficially to the wider community. He has been utilising his English language and leadership skills volunteering to run English classes a few nights a week for fellow Afghan asylum seekers. [The applicant] has also volunteered at the Humanitarian Group, a not-for-profit organisation, as an interpreter and enrolled to complete a Diploma in Logistics …

31.     I note [the applicant] has no recorded convictions in Australia.

32.     I accept that [the applicant] has displayed a significant degree of good conduct since his arrival in Australia and his participation in various aspects of the community demonstrates his desire to become a good resident of the Australian community.

119    Nevertheless, the Minister was unmoved. He went on to say:

33.     However, while I accept that [the applicant] was not convicted of any offence, [the applicant] has not denied his involvement with people smugglers in Indonesia and has been identified by many other detainees as a person who assisted with arrangements for their illegal travel and subsequent entry in Australia. I find that [the applicant’s] actions puts (sic) Australia at risk because those who enter Australia illegally arrive without health and security checks. The arrival of people illegally risks Australia’s national security, and the potentially grave risks involved in the voyage itself, is of utmost concern.

34.     I find that [the applicant’s] actions are serious. I am mindful that the people smuggling trade has contributed to the deaths of many people trying to make their way to Australian shores. I am also mindful of the significant resources required to protect Australia’s borders from the people smuggling trade and the resultant financial cost which is borne by the Australian community to prevent and disrupt the illegal trade.

35.     I have had regard to all of the information before me and I find there is a risk that [the applicant] will offend, albeit a very low risk. If [the applicant] did offend in a similar manner, I find it could result in conduct that could cause physical, psychological harm to people seeking refuge in Australia and a significant and continued financial burden to members of the Australian community.

120    Under the heading “Conclusion”, the Minister reiterated that the applicant had “engaged in serious conduct involving people smuggling and non-citizens who engage in such serious conduct should not generally expect to be permitted to remain in Australia”. He continued:

64.     I find that the Australian community could be exposed to harm should [the applicant] engage in similar other serious conduct. I could not rule out the possibility of [the applicant] engaging in other serious conduct. The Australian community should not tolerate any further risk of harm.

65.     I found the above consideration outweighed the countervailing considerations in [the applicant’s] case, including international non-refoulement obligations and the impact on family members. I have also considered the length of time [the applicant] has made a positive contribution to the Australian community and the consequences of my decision for his family members.

66.     I am cognisant that where harm could be inflicted on the Australian community, even strong countervailing considerations are insufficient for me not to refuse to grant the visa.

67.     In reaching my decision I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

121    It is uncontroversial that it is an essential condition of the conferral by statute on a person or body of a discretionary power that it be exercised reasonably. A decision will not be legally unreasonable, however, merely because the reviewing court disagrees with it, no matter how strong the disagreement. The Court is not authorised to review the decision on its merits. Thus, if probative evidence can give rise to different processes of reasoning and if reasonable minds might differ about the conclusions that should be drawn from the evidence, a decision is not legally unreasonable simply because the reviewing court has a preference for a different conclusion: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (Crennan and Bell JJ). This has been described elsewhere as “an area of decisional freedom” for the decision-maker: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (French CJ); Stretton at [7] (Allsop CJ). On the other hand, a decision might be said to be illogical or irrational (and, by inference, legally unreasonable) “if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn”: SZMDS at [135] (Crennan and Bell JJ). The metes and bounds of the decisional freedom “are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness”: Stretton at [7] (Allsop CJ).

122    As the judgment in Li demonstrated, legal unreasonableness can be a conclusion reached by a court after identifying an underlying jurisdictional error in the process of decision-making or it can be outcome-focussed, where no underlying jurisdictional error is identifiable: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44] (Allsop CJ, Robertson and Mortimer JJ). In this latter case, Hayne, Kiefel and Bell JJ observed in Li at [76] that if, upon the facts, the result of the exercise of an administrative discretion is unreasonable or plainly unjust, a court might infer that there was a failure properly to exercise the discretion. Thus, even where some reasons have been given, it may not be possible for a court to understand how the decision was reached. Their Honours described “unreasonableness” in this context as “a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.

123    In Stretton at [11], Allsop CJ observed that the task of considering whether a decision is legally unreasonable is “not definitional, but one of characterisation”. His Honour explained:

[T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.

124    In Singh at [47] the Full Court held that where reasons are given, at least when a discretionary power is involved, the “intelligible justification” must be found in those reasons. Consequently, the Court said, “[w]here there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not”. The Court considered it would be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen as legally unreasonable.

125    The Minister’s findings at [64] and [67] captured the essence of his reasons for exercising his discretion to refuse to grant the applicant a SHEV.

126    The applicant contended that those findings lacked an evident or rational basis since there was “no evidence or suggestion, or suspicion that the applicant had exhibited any inclination to engage in such conduct”, “[his] conduct in Australia had been exemplary”, and “the conduct in which [he] admitted being engaged in in Indonesia was for the purpose of securing his own safety”. He argued that the only conduct of concern to the Minister occurred in Indonesia and the evidence was that he engaged in that conduct in order to secure his own safety. He submitted in effect that, as he is in Australia, he lacked both the motive and the opportunity to engage in similar conduct again. He pointed out that there was no evidence that he has sought to engage in people smuggling while in Australia or that since his arrival here he has had any contact with a person suspected of people smuggling. He noted that the Minister accepted that his conduct in Australia had been exemplary. In these circumstances, he argued, the Minister’s concern that the applicant might engage in other “serious conduct” was not open on the evidence. Indeed, he pointed out, the evidence is to the contrary.

127    These submissions should be accepted.

128    In his written submissions the Minister contended that the impugned findings were open on the following basis:

The applicant having engaged in conduct in assisting people smuggling in 2009 meant that it was neither irrational nor unreasonable for the Minister to consider that there was at least a possibility – and the Minister expressly did not put it any higher than that – that the applicant might engage in ‘other serious conduct’. The applicant mischaracterises the Minister’s findings in suggesting … that the only risk of the applicant engaging in ‘other serious conduct’ related to people smuggling. The fact of the matter is the applicant engaged in conduct which was (apparently) illegal in Indonesia, and is now an offence under Australian law. The Minister was entitled to express concerns on this basis that the applicant might in the future engage in other serious conduct.

For these reasons the applicant’s submission that the Minister’s findings at [64] were unsupported by evidence cannot be accepted. Having engaged in the past in illegal activity, it was open to the Minister to conclude that there was — at the very least — a possibility of the commission of further serious conduct.

129    There are several difficulties with this submission.

130    First, notwithstanding what was put in the written submissions, it is apparent on the face of the Minister’s reasons, as his counsel acknowledged in oral argument, that the “other serious conduct” to which the Minister was referring was conduct related to people smuggling.

131    Second, absent any findings about what the Minister suspected the applicant to have done to assist people smugglers, any finding about what he might do in the future has no solid foundation. On the assumption, however, that the Minister suspected that the applicant was involved in people smuggling at least to the extent he admitted or the reviewing officer found, that fact alone tells us nothing about the possibility that he might be involved in similar conduct in the future. The Minister’s conclusion pays no regard to the desperate circumstances in which the applicant claimed to have found himself, which provide both the context and the explanation for his conduct, and which are no longer present or foreseeable. Nor does it take account of the absence of both motive and opportunity to engage in similar conduct once the applicant had reached Australia.

132    Third, the Minister does not point to any evidence, let alone probative evidence, to indicate any rational foundation for his conclusion that there was any possibility, no matter how slight, that the applicant would — or even could — be involved in smuggling people into Australia and certainly not conduct of the kind in which the reviewing officer found him to have engaged or in which he was admittedly involved. When asked during argument “under what possible circumstances that situation could ever arise”, he had no satisfactory answer.

133    Further, the Minister’s reasoning amounts, in effect, to this. No matter that his conduct has been fully investigated by the AFP and he has not been charged with, let alone convicted of, an offence, no matter what extenuating circumstances there might have been to explain his behaviour, no matter what has happened since, and no matter how strong the countervailing considerations are, if the Minister reasonably suspects the applicant to have been involved in people smuggling, he must not be granted a visa. If that is right, then the legislative purpose is thwarted or undermined. The discretion is meaningless and the obligation to afford natural justice to the visa applicant is nothing but a hollow gesture. Such a decision is outside the range of possible lawful outcomes as an exercise of the power conferred by subs 501(1).

134    For all the above reasons, the Minister’s conclusions at [64] and [67] were legally unreasonable.

135    It follows that ground 5 should also be upheld.

Was the Minister’s use of s 501(1) beyond power (ground 6)?

136    Ground 6 is based on the decision by Rares J in BAL19. In BAL 19 his Honour held that, since the commencement of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which, amongst other things, inserted s 36(1C), a protection visa cannot be refused by the exercise of the power in s 501(1).

137    Section 36(1C), it will be recalled, provides that a criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, is a danger to national security or, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. “A particularly serious crime” is defined in s 5M as “a serious Australian offence” or “a serious foreign offence”. A “serious Australian offence” is defined in s 5 to mean an offence against a law in force in Australia, which involves violence against a person or is a serious drug offence or involves serious damage to property or is an offence against s 197A or 197B, and is punishable by life imprisonment or imprisonment for a fixed or maximum term of not less than three years. “Serious foreign offence” is also defined in s 5. It means an offence against a law in force in a foreign country which involves violence against a person, is a serious drug offence or involves serious damage to property and, if it were assumed that the act or omission constituting the offence had taken place in the ACT, it would have constituted an offence against a law in force there and would have been punishable by life imprisonment or imprisonment for a fixed or maximum term of not less than three years. As the reviewing officer determined, the offence of which he found the applicant had been convicted in Indonesia did not fall within the definition of a “particularly serious crime” and the applicant was not therefore a person who satisfied the exclusion criterion in s 36(1C).

138    The conclusion Rares J reached in BAL19, as summarised in [87]–[88] of his Honour’s reasons, was that para 501(6)(d)(iv), which was the provision the Minister invoked in that case, was inconsistent with the new, specific criterion for a protection visa in s 36(1C). The effect of para 501(6)(d)(iv) is that, for the purposes of s 501, a person does not pass the character test if, in the event he or she were allowed to enter or remain in Australia, there is a risk the person would incite discord in the Australian community or a segment of that community. A convenient summary of the reasons in BAL19 on this point appears in the recent judgment of Colvin J in BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 at [111]:

At its heart, [the] reasoning [in BAL19] identifies a lack of harmony between two matters. First, the specific criteria as to character to be met by an applicant for a protection visa. Second, a general provision which enables an application to be refused on the basis of a different formulation as to matters of character that confers a discretion to refuse the application even though the specific criteria as to character for a protection visa are met. If, on the basis of that disharmony, a conclusion is reached that the general provision in s 501(1) does not apply in the case of a protection visa then the consequence is that s 65 applies on that basis. The result would be that the reference to s 501 in s 65(1)(a)(iii) is to a provision that itself does not apply in the case of a protection visa. Therefore, where the power in s 65 is being considered in relation to a protection visa, there is no prospect that the power in s 501(1) could be exercised so as to prevent the grant of the visa.

(Original emphasis.)

139    The Minister submitted that in this respect BAL19 was wrongly decided and should not be followed. By consent, however, the applicant invited me not to consider ground 6 if I found in his favour on one or more of the other grounds. The basis for this position was that BAL19 is on appeal and that the correctness of the construction point is also an issue in a matter in which the Full Court is currently part-heard: KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (WAD397/2019). For this reason I do not intend to refer to the Minister’s submissions, save to make two observations. First, the Minister conceded that the present case is indistinguishable from BAL19. Second, as a matter of judicial comity, I could not but follow BAL19 unless I were convinced that Rares J was plainly wrong: see BFW20 at [73]–[74] and the authorities referred to there. In BFW20 Colvin J had some doubts about certain aspects of his Honour’s reasoning but he was not satisfied that “the fundamental foundation for those views [was] plainly wrong” (at [129]). Neither am I. Consequently, I would also uphold ground 6.

Conclusion and orders

140    The applicant succeeds on all his grounds. The relief he sought should be granted. That includes the order for his immediate release. Once the Minister’s decision is quashed, the applicant’s bridging visa is automatically restored or, as the Minister put it, “re-enlivened”, and he can no longer be detained.

Associate:

Dated:    12 May 2020