FEDERAL COURT OF AUSTRALIA

Logan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1068

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    The decision by the respondent not to exercise the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) to revoke the cancellation of the applicant's visa is set aside and the matter is remitted to the respondent for determination according to law.

3.    The respondent do pay the applicant's costs to be assessed on a lump sum basis, if not agreed.

4.    If it is necessary to fix costs then:

(a)    the applicant may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);

(b)    within 14 days of service of the Costs Summary the respondent do file and serve any costs proposal in accordance with GPN-COSTS; and

(c)    if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Caroline Logan was born in Weymouth, England. In 1970, when she was 2 years old, Ms Logan travelled from England to Australia on her mother's passport. Her mother was an Australian citizen, who had travelled to England to be with her husband, a member of the Royal Navy.

2    Ms Logan is now aged in her early fifties. Since arriving in 1970, she has lived all her life in Australia. She was brought up, educated and worked in Australia believing that she was an Australian citizen. At 16, Ms Logan began a relationship with a man who became her husband. By his hands, she suffered serious domestic violence. She started abusing drugs and alcohol. Her circumstances spiralled out of control until she committed a violent murder. She describes this event as an horrific crime that destroyed many lives. The sentencing judge described the circumstances in the following terms:

You approached [the victim] and stabbed at her repeatedly through the window of the car until you made significant contact with her. By your action, which I accept was not premeditated but occurred in the heat of an emotional pressure-cooker caused by a variety of things, including your own ingestion of amphetamines, cannabis and alcohol, and your former husband's brutal and sustained attack upon you - by that action you have taken a life that was innocent and destroyed or damaged many others; those related to the victim and those related to you. Although you did not know that he was there, nevertheless the fact is that [the victim's son] was there and witnessed this dreadful assault upon his mother.

3    Ms Logan was sentenced to life imprisonment, with a minimum term of 8 years. On 2 September 2016 she was informed by the Prisoners Review Board that although she had been assessed and considered suitable for a re-socialisation programme this could not be facilitated because the Department of Immigration and Border Protection had advised of the cancellation of her visa with the result that she would be immediately taken into immigration detention if released from custody as part of a pre-release programme. It was through that course of events that she became consciously aware that she was not an Australian citizen.

4    Under s 501(3A) of the Migration Act 1958 (Cth), a person's visa must be cancelled if, relevantly for present purposes, they do not pass the character test because they are serving a term of imprisonment of 12 months or more. Ms Logan had not been issued with any paperwork for a visa. However, a decision cancelling her visa was made on the basis that she held a Class BF Transitional (Permanent) visa. A visa of that kind was issued on 1 September 1994 by operation of law under the Migration Reform (Transitional Provisions) Regulations 1994 (Cth).

5    The Minister may revoke the cancellation of a visa effected under s 501(3A) if the person makes representations in response to an invitation to do so and the Minister is satisfied that the person satisfies the character test or there is 'another reason why the original decision should be revoked': s 501CA(4). The Minister is required to invite such representations by s 501CA(3)(b).

6    Ms Logan made representations in response to an invitation from the Minister. However, it was not until 14 June 2019 that the Minister made a decision on the application. Therefore, for the most part of three years Ms Logan remained in custody in circumstances where, had she been an Australian citizen by birth, she would have been able to participate in a pre-release programme and, in all likelihood, released into the community. Release was likely because Ms Logan had been assessed by the Prisoners Review Board as being of low risk and eligible for parole.

7    The Minister's decision, made personally, was to refuse to revoke the visa cancellation.

Application for judicial review

8    On 8 July 2019, Ms Logan brought an application in this Court to review the Minister's decision. The hearing of the application was deferred and a certificate for pro bono counsel was issued by the Court. The hearing was then further deferred on the basis that the High Court was reserved in proceedings in which it was giving consideration to the scope of the aliens power under s 51(xix) of the Constitution. Depending upon the outcome in those proceedings, it was foreshadowed that Ms Logan may seek to amend her grounds of review to raise a claim that she was not an alien and therefore the decision to cancel her visa was beyond power.

9    In February this year, the High Court delivered its decision in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3.

10    A provisional hearing date that had been allocated in April was confirmed. However, at the request of pro bono counsel that date was vacated to enable factual circumstances relied upon in support of the application to be investigated. Those matters were addressed by an affidavit of Ms Logan dated 24 June 2020. Notices have also been served concerning the constitutional point raised by Ms Logan and no attorney-general has sought to intervene.

11    Ms Logan advances three grounds of review based upon alleged jurisdictional error. First, the decision not to revoke the cancellation of Ms Logan's visa because she represented an unacceptable risk of harm to the Australian community was illogical and unreasonable. Second, there was no probative basis for a finding made by the Minister that Ms Logan would resort to drugs (and therefore crime) in the future. Third, the decision to cancel the Ms Logan's visa was beyond power because Ms Logan was not an alien for the purposes of s 51(xix) of the Constitution.

The Minister's reasons

12    The critical aspect of the reasoning by the Minister in deciding not to revoke the cancellation of Ms Logan's visa was expressed by the following conclusion (para 68):

In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Ms LOGAN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other consideration as described above. These include her lengthy residence, her claims that she will suffer hardship if returned to the UK, and the hardship Ms LOGAN, her family and social networks will endure in the event the original decision is not revoked.

13    It can be seen that the basis for the Minister's decision was an affirmative finding that Ms Logan posed an unacceptable risk to the community that was sufficient to outweigh any other consideration in favour of the revocation of the cancellation of her visa. The decision rests on that finding of unacceptable risk.

14    The Mister's reasons began by confirming that Ms Logan failed to satisfy the character test by reason of her term of imprisonment for murder. The Minister then referred to the reasons articulated by Ms Logan as to why the cancellation of her visa should be revoked. They were summarised in the following way (para 12)

In the representations submitted by Ms LOGAN, she has articulated reasons why the original decision should be revoked, which include:

-    While she does not seek to excuse her crime, she wishes to explain that it was committed under the influence of drugs and alcohol, which she turned to after years of extreme physical, sexual and psychological abuse by her husband.

-    She believes she is fully rehabilitated and poses no threat to society. Prison reports are consistent with this view.

-    She is in a position to make a positive contribution to society, by being a good family member, by obtaining productive employment and by providing counselling on domestic violence to other persons in situations similar to her own.

-    She has two adult children who both suffer from bipolar disorder and depression. She would like to be present in their lives to help them with these issues and to establish relationships with her five grandchildren.

-    She has no ties to her birth country of the United Kingdom (UK) and if removed there she will be homeless and without support.

15    After considering those matters and identifying a number of aspects that supported the revocation of the visa cancellation, the Minister came to the issue of protection of the Australian community. The Minister found that Ms Logan's offending was to be regarded as very serious (para 35). The Minister then turned to the question of the risk that she posed to the Australian community through reoffending.

16    The Minister accepted that it is likely that Ms Logan 'was subject to extreme physical and psychological trauma through her marital relationship, which would have contributed significantly to her state of mind when she offended' (para 41). The Minister acknowledged that prison reports were consistent with Ms Logan's claim that she had pursued rehabilitative training and her behaviour had been satisfactory (para 44). She was described as 'a model prisoner' (para 45). There was also a finding that Ms Logan had successfully completed several courses and programs 'where she reportedly presented as highly motivated and determined' (para 46).

17    Reference was made to 12 positive tests for drug use out of 140 urinalysis tests whilst Ms Logan was in prison. However, the last 14 tests since November 2014 were referred to as being negative (paras 44 and 50). As to these matters, the Minister found (para 44):

I consider that this indicates she has addressed her substance abuse issues, but not necessarily that she has completely overcome those issues, especially once she is no longer under supervision, in the general community.

18    The Minister referred to a recent psychological/resocialisation report and then found (para 49):

The report indicates that Ms LOGAN is no longer considered a drug concern and discloses no mental health concerns. The report advises that Ms LOGAN has successfully completed all possible programs available to her and rates her as a medium risk of violent re-offending. The risk rating has increased from low to medium due to a change in the parameters used by the relevant test, rather than any action or attitude change by Ms LOGAN. The report advises that this rating cannot be lowered until Ms LOGAN can demonstrate a change in reaction to high risk situations, As it is indicated that opportunities to prove herself in high risk situations are very limited within prison confines, I take it that Ms LOGAN is rated at the lowest risk rating in her situation of placement in prison.

19    Particular reliance was placed upon the above finding by the Minister. It was said to provide logical support for the ultimate affirmative finding by the Minister that Ms Logan presents an unacceptable risk to the community that outweighed any other consideration. I do not accept that submission. The finding as to the report provides no evidence to support such a conclusion. Rather, the finding as to the report is to the effect that it indicates that, within her circumstances of incarceration, there are no matters of concern. Further, Ms Logan has achieved the lowest possible score as to risk given the situations to which she has been exposed in prison. The finding as stated reflects the fact that the report makes no assessment one way or the other concerning the risk of Ms Logan reoffending in a violent way if released into the community. It is simply neutral as to that risk. The quoted passage falls short of making any finding, based on the report, that Ms Logan is at risk of reoffending if released. The report, as described, assesses risk by reference to what is known and has been observed. It does not seek to make any predictive assessment as to the risk upon release. This is evident from the statement that the risk rating cannot be lowered unless and until Ms Logan has been released into the community.

20    Later, the Minister referred to the report as identifying that unstable relationships if and when Ms Logan returns to the community continue to be her highest risk factor (para 52). However, once again, there was no suggestion of any assessment of the nature or extent of that risk.

21    The Minister then made the following finding concerning advice from the Prisoners Review Board of Western Australia (para 53):

Ms LOGAN is assessed as low risk and is now to be granted parole. I acknowledge the importance of this parole order and it is a strong indication that the Parole Board consider Ms LOGAN is a low likelihood of reoffending. This weighs heavily in favour of a decision to revoke.

22    This is evidence of a predictive assessment. The function of the Parole Board is to make assessments of that kind. The Board has assessed that risk as low in Ms Logan's case and the Minister identified that as a matter that weighs heavily in favour of revocation of her visa cancellation.

23    The Minister also found that Ms Logan's eligibility to participate in a re-socialisation programme will 'lessen the risk of Ms LOGAN reoffending' (para 55).

24    The Minister then noted that a separate report by the Department of Corrective Services had found that Ms Logan's rehabilitation had not yet been tested in high risk situations or in the community (para 57). That, of course, was to do no more than state the obvious. Ms Logan had been in prison. Her visa was revoked before she was released with the consequence that since serving her sentence she has been held in immigration detention. A statement of that character is not a consideration of, or a finding about, whether there was a risk of violent reoffending by Ms Logan if she was released into the community. It could not support an affirmative finding of the kind ultimately expressed by the Minister as the basis for the decision not to revoke.

25    Then, the Minister reasoned in the following way (para 58):

However, it is open to find that the likelihood of Ms LOGAN reoffending is now much lower than it was at the time of offending, given that she would no longer be in that extremely dysfunctional relationship and has undertaken rehabilitative training, although I cannot dismiss the possibility of reoffending completely. Also, I note that the Immigration Report of 19 February 2018 indicates that she has had some positive test results to cannabis and other drugs in prison, albeit not since 2014. Though I acknowledge that these are few compared to her many negative test results and none of them are recent, they do show that she did not give up drugs completely after her offending, as she has indicated. This in turn somewhat raises the chances of her resorting to drugs again in future, especially in times of stress.

26    The first sentence in the passage quoted above is worded in strange terms if it was intended to be the expression of a basis for an affirmative conclusion based upon then current circumstances that there was a risk of violent reoffending if Ms Logan was released into the community. Even without an eye attuned to error, it appears to be no more than a finding that the possibility of reoffending cannot be dismissed completely. To say that the possibility cannot be dismissed 'completely' without connecting that observation to some material that provides a foundation for the possibility happening is to say nothing more than the future is uncertain. It does not engage with the question whether there is a basis for concluding that Ms Logan is a present risk to the community. In short, it is an uncontextualised, unreasoned and unjustified conclusion that may be stated in respect of any person who has committed a violent offence in the past irrespective of the likelihood of re-occurrence measured by reference to what is known at the time that risk is being assessed.

27    There is no reasoning by the Minister as to why the past conduct may be repeated many years later in entirely different circumstances. The absence of any such reasoning is particularly stark given express findings by the Minister that the extreme physical and psychological trauma to which Ms Logan was subject through her marital relationship would have contributed significantly to her state of mind when she offended (para 41). In that context, the findings by the Minister as to changes in her mental health since that time assumed significance. In particular, the statement in the recent psychological/resocialisation report that Ms Logan is no longer considered a drug concern and discloses no mental health concerns and the assessment by the Prisoners Review Board that she is assessed as a low risk and should be granted parole mean that it would not be logical to simply reason from the circumstances of Ms Logan's offending many years ago to a conclusion that she posed a risk of reoffending in a violent manner.

28    Ultimately, the reasoning (at paras 58-59) is founded on two matters. First, a recognition that the material before the Minister points to the risk of reoffending being much lower (because of the material already considered to support such a conclusion). Obviously, that is material that counts against the risk of violent reoffending. Second, reasoning by reference to what Ms Logan indicated about her drug taking.

29    The difficulty with the second part of the reasoning is that it was accepted by counsel for the Minister to be wrong. That is to say that Ms Logan had not indicated that she gave up drugs completely after her offending. In fact, she had been frank about the time it had taken for her to address her drug taking. In a representation to the Minister, Ms Logan had said:

I am also aware that it has taken a considerable amount of time to address my drug use, so I would like to say with great confidence that I have finally succeeded in doing that and they are gone from my life, they cause nothing but pain and destruction to whom ever they touch.

30    In addition, there was the apparent earlier acceptance of the statement in the recent psychological/resocialisation report that Ms Logan is no longer considered a drug concern.

31    Therefore, the Minister's reasons to this point identify only matters that lend support to the claim by Ms Logan that she believes she is fully rehabilitated and poses no risk to society in the sense that, as far as they can be taken, they support that claim. As may be expected, they do not establish affirmatively that there is no risk. However, as material that is supportive of the claims made by Ms Logan it could not be a basis for reaching a contrary view concerning any present risk posed by Ms Logan to the Australian community. On the other hand, no material is identified by the Minister and no reasoning is expressed which provides a basis for a contrary conclusion. Beyond saying that it is impossible to know with certainty what may happen in the future, the reasons fail to disclose any material that would lead to the affirmative conclusion that there is a low likelihood of reoffending in a similar manner. Ms Logan was not provided with any reasons of that character. Yet, that is the critical (indeed only) reason given for deciding that the cancellation of her visa should not be revoked.

32    Finally, the Minister said (para 59):

Should Ms LOGAN reoffend in a similar manner, it could result in serious physical harm or even death to a member of the Australian community. For this reason I find that even a low likelihood of reoffending must be regarded with great concern.

33    The above statement is not a finding. It is a statement that could only have significance if there was indeed a finding that there was a real risk that Ms Logan would reoffend in a similar manner to the offence that led to her imprisonment. For reasons already given, there was no logical pathway supported by probative evidence to establish any such finding. Therefore, to say that if that reoffending occurred (there being no finding as to the present risk of that occurring) then it could result in serious harm or even death was to make an irrelevant observation. The same may be said of the final sentence. It may be accepted that the seriousness of Ms Logan's offending (a matter that Ms Logan acknowledged) meant that even a low risk of reoccurrence was to be regarded with great concern. However, there being no assessment as to whether there was a present risk of Ms Logan reoffending (low or otherwise) the statement lacked the necessary foundation for it to have logical sway in dealing with Ms Logan's representations.

34    The Minister then stated various matters under the heading 'Conclusion'. In that context, the Minister said by way of conclusion (paras 65-68):

On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the violent crime committed by Ms LOGAN, which caused the death of another person.

Further, I find that the Australian community could be exposed to extremely serious harm should Ms LOGAN reoffend in a similar fashion. I could not rule out the possibility of further offending by Ms LOGAN.

I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Ms LOGAN, than I otherwise would, because she has lived in Australia from a very young age.

In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Ms LOGAN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other consideration as described above. These include her lengthy residence, her claims that she will suffer hardship if returned to the UK, and the hardship Ms LOGAN, her family and social networks will endure in the event the original decision is not revoked.

35    The language used in the conclusion shows that it is a summary of findings already made, not separate reasoning. Therefore, it provides no separate logical or probative foundation for the affirmative finding as to risk.

Ground 1: Alleged illogicality and unreasonableness

36    For the Minister it was submitted that the findings and conclusions were not illogical or irrational or unreasonable, they had an 'evident and intelligible' justification and were within the Minister's 'area of decisional freedom', relying on the explanation of the principles in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]-[45]; and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28], [66], [76], [105]. It was said that the 'earlier findings' supported the ultimate conclusion which was not illogical or irrational or unreasonable having regard to the probative evidence before the Minister: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131], [135] (Crennan and Bell JJ).

37    The submissions for Ms Logan relied upon the authorities in this Court concerned with whether there was jurisdictional error by reason of a failure to engage in a genuine and active intellectual process directed at the matters raised in the representations made by an applicant to the Minister to exercise the power conferred by s 501CA(4) of the Migration Act. Therefore it was a complaint that the decision lacked an evident and intelligible justification rather than a case where on the facts the result was said to be unreasonable or plainly unjust. Both instances lie within the same concept of legal unreasonableness: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [10] (Allsop CJ, Wigney J agreeing). It was also claimed that the reasoning was unreasonable because it lacked logicality.

38    In the present case, there was an implied statutory obligation to consider material raised by the representations: Minister for Home Affairs v Omar [2019] FCAFC 188. Where there is such an obligation then it must be undertaken in a meaningful way.

39    In the present context there is the further principle recognised in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 to the effect that where the reasons for not exercising the power conferred by s 501CA(4) to revoke the cancellation of a visa rest on a critical finding to the effect that a person poses an unacceptable risk to the Australian community (assessed in terms of likelihood) that outweighs all other considerations in favour of revocation then there must be some probative basis for the conclusion that is more than mere speculation: at [52] (Mortimer J, Moshinsky J agreeing).

40    Putting these matters together, where a matter is critical to the reasoning supporting the exercise of a discretionary statutory power (such as the power to revoke the cancellation of a visa), the reasons must disclose a probative basis for findings which are then logically and rationally connected to a conclusion that the finding is said to support. A decision which lacks these fundamental attributes in respect of a critical part of the reasoning will be shown to fail to conform to the requirements of the statute.

41    As has been noted, this is an instance where review for unreasonableness concentrates upon the reasoning process of the decision maker. In that context, in Singh, Allsop CJ, Robertson and Mortimer JJ said that the reasons should be the focal point for the assessment and at [47]:

The 'intelligible justification' must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. ... If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

42    Applying these principles, for reasons I have given, the Minister's affirmative conclusion that Ms Logan represents an unacceptable risk of harm, rests upon no probative material and is not reasoned logically.

43    The fundamental difficulty with the reasoning is that it contains no finding by reference to current circumstances as to whether Ms Logan poses a risk. For reasons that have been given, the content of the psychological/resocialisation report did not identify such a risk. Rather, it was constrained by its own methodology to describe the risk as medium until Ms Logan's behaviour could be observed in a high risk situation. As has been conceded by the Minister, the finding that Ms Logan did not give up drugs completely after her offending as she was said to have herself indicated was incorrect.

44    Nor is there any logical pathway by which the findings that were made could support such a conclusion (even assuming all material supporting a contrary conclusion was put to one side).

45    Otherwise, the reasons of the Minister record findings that are contrary to the conclusion reached. Of particular importance is the acceptance that Ms Logan has been assessed as low risk by the Prisoners Review Board and was to be granted parole. The significance of this other material is that it means that the reasoning discloses no logical reason why there is a present risk. In the face of the material supporting the claims by Ms Logan it was necessary for there to be probative contrary material that was capable of supporting a conclusion that there was risk.

46    The decision not to exercise the statutory power rests solely on the positive conclusion that Ms Logan represents an unacceptable risk of harm to the Australian community of a kind that outweighs the other considerations that favour revocation of the cancellation of her visa. As that view is unsupported by any logical reasoning that draws upon actual material before the Minister and there is other material that is countervailing that is accepted by the Minister, it has been demonstrated that the decision is unreasonable in the requisite sense. It is unreasonable because the reasons disclose no basis for the affirmative conclusion that Ms Logan represents a present risk of harm and it is that affirmative conclusion that is the critical, indeed only, expressed reason for not revoking the cancellation of Ms Logan's visa.

Ground 2: Alleged lack of probative basis for finding that Ms Logan had indicated that she had given up drugs completely after her offending

47    Ground 2 concerns the following finding by the Minister, as quoted above but repeated here for ease of reference (para 58):

Though I acknowledge that these [positive tests] are few compared to her many negative test results and none of them are recent, they do show that [Ms Logan] did not give up drugs completely after her offending, as she has indicated. This in turn somewhat raises the chances of her resorting to drugs again in future, especially in times of stress.

(emphasis added)

48    In written submissions, the Minister sought to characterise the finding made by the Minister in the following way:

The Minister is here reasoning that although there are few positive test results compared with the many negative results, and no positive results since 2014, the fact that the applicant had still taken some drugs after her offending meant there was an increased chance of the applicant resorting to drugs again in the future, especially in time of stress.

49    However, in oral submissions, the Minister accepted that the finding was factually in error because it was to the effect that Ms Logan had indicated falsely that she had given up drugs completely after her offending. That concession was properly made for two reasons. First, for reasons already given, Ms Logan had not made a claim that she had given up drugs completely after her offending. She had been candid in referring to the fact that it had taken some time for her to deal with her issues with drugs, but she maintained that she had been off drugs for a number of years and the test results were consistent with that claim. Second, the concluding focus of the factually erroneous finding cannot be put to one side. It led immediately into the following sentence that: 'This [that is, that she did not give up drugs completely after her offending as she had indicated] in turn somewhat raises the chances of her resorting to drugs again in the future, especially in times of stress'. Plainly, the erroneous finding that the circumstances of Ms Logan's drug taking was not as she had indicated formed part of the conclusion as to her future risk of drug taking.

50    The Minister submitted that the error was no more than a within jurisdiction factual error. However, that submission fails to recognise the role played by the paragraph in the reasons of which the finding forms part. For reasons already given, it was the only logical basis expressed for any concern as to future risk.

51    Nevertheless as I have determined that ground 1 should be upheld it is not necessary to form a view as to whether the error is properly characterised as a finding made without evidence of a kind that considered above may be jurisdictional or whether it is a within jurisdiction factual error. It is also not necessary to address the question of materiality which was based upon the balance of the reasoning by the Minister and which has been found to be unreasonable.

Ground 3: Decision allegedly beyond power

52    Since 1984, the Migration Act has relied upon the aliens power expressed in s 51(xix) of the Constitution for its constitutional foundation: Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33 at [34]. By its long title, it is an Act relating to the entry into, and presence in, Australia of aliens and the departure or deportation from Australia of aliens and certain other persons. Its objects include regulating the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object, the Act provides for and intends visas to be the only source of the right of non-citizens to so enter or remain: s 4(2). A person who is reasonably suspected of being an unlawful non-citizen must be detained and unless that person establishes that he or she is a citizen or is granted a visa must be removed from Australia as soon as reasonably practicable: s 189, s 191, s 196 and s 198.

53    The Migration Act uses the term 'unlawful non-citizen' to refer to a person who is not a citizen, who is within Australia (excluding its seas) and who does not hold a visa: s 13 and s 14.

54    A child may be a citizen of Australia by birth only if born in Australia: Australian Citizenship Act 1948 (Cth), s 10 and Australian Citizenship Act 2007 (Cth), s 12. A child born in Australia who has one parent who is an Australian citizen or Australian permanent resident is a citizen. A person may also become an Australian citizen by descent if a parent was an Australian citizen at the time of their birth and the person makes application and is registered as a citizen. If a child is born in Australia to parents who are both non-citizens then the child is taken to have been granted a visa of the same kind as any visa held by the parent of the child: s 78.

55    Ms Logan was granted an entry permit at Perth Airport upon her arrival in Australia. As has been noted, by operation of the Migration Reform (Transitional Provisions) Regulations her entry permit continued in effect on and after 1 September 1994 as a permanent visa.

56    A visa ceases to be in effect on cancellation: s 82.

57    By ground 3 of her application, Ms Logan does not claim that the statutory provisions relied upon by the Minister are invalid. Rather, she claims that they do not apply to her because she is neither citizen nor alien. Although it is accepted that Ms Logan is a citizen of the United Kingdom and is not a citizen of Australia, she claims not to have the constitutional status of an alien in Australia. Therefore, she says that a law made in the exercise of a constitutional head of power that concerns aliens does not extend to her in its application.

58    The foundation for the claim by Ms Logan that she is not an alien is expressed in the following terms in her written submissions:

The Applicant has been recognised as a belonger.

She has lived all her life in Australia, except for the first 2 years. Her Mother was an Australian citizen when the applicant was born and remained so throughout the Applicant’s life. The Applicant’s father became an Australian citizen in 2007. The applicant has two children aged 29 and 24, and four grandchildren aged between 2-11. All of her siblings, children and grandchildren were born in Australia and are Australian citizens.

The Applicant has never owed allegiance to any foreign power since arriving in Australia in 1970.

The Applicant has been regarded as part of the Australian political community by government. As noted above she has received Centrelink payments for a lengthy period; she has been identified as Australian by the WA Department of Corrective Services; she has been accepted as Australian by the HECS scheme.

At the time of her birth the Applicant was eligible to apply for and be granted Australian citizenship under s11 of the Australian Citizenship Act 1948.

Drawing on the above indicia about the Applicant it would be an unfortunate triumph of form over substance to find that she is an alien for the purposes of s 51(xix) of the Constitution.

59    The Minister did not challenge the factual matters relied upon by Ms Logan to support ground 3 of her application.

60    Before the decision in Love, it was settled that individuals who entered Australia as young children and, within the relevant constitutional terminology, as aliens did not change that status by reason of their personal history as lived in Australia. For that reason, it was accepted by counsel for Ms Logan that if the authorities before Love were to be applied then ground 3 would be dismissed.

61    It was also accepted that Ms Logan was a citizen of the United Kingdom and not of Australia. There was no challenge to the legality of the provisions of Australian Citizenship Act 2007 (Cth) as they applied to Ms Logan.

62    Rather, the submission advanced was that some members of the High Court in Love had recast the approach to the interpretation of the aliens power in a manner that required a factual inquiry to determine whether a law that relied upon the aliens power could validly extend to a particular person. Further, it was an inquiry to be undertaken at the time that an issue arose as to the application of the Migration Act and not when the person first entered Australia. In the present circumstances the relevant time was said to be, in effect, when Ms Logan came to be detained on the basis that she was a non-citizen who did not hold a visa.

63    In effect, the claim made was that there was no jurisdiction for the Minister to make the decision because Ms Logan was not an alien and therefore could not be made subject to provisions of the Migration Act that rested upon that power. However, the claim was more fundamental in character. It went beyond the validity of the Minister's decision not to exercise the power conferred by s 501CA(4) and questioned whether the Migration Act could apply to Ms Logan at all. Leaving to one side the question whether an application to set aside the decision was the appropriate procedural means to raise a claim of that kind, for the following reasons it is a claim that should not be accepted.

64    The decision in Love was concerned with the status of the Aboriginal peoples of Australia and whether the constitutional concept of alien included an Aboriginal person who was born outside of Australia and for that reason was a non-citizen according to legislation enacted to define citizenship.

65    In Love each member of the High Court delivered separate reasons. For present purposes, it is necessary to focus upon the extent to which their Honours stated new principles that may be seen to depart from previous authority in a manner that supports the claim by Ms Logan that, in her particular circumstances she has the status of a non-citizen, non-alien.

66    Kiefel CJ referred to the existing state of authority, observing that there have been a number of cases in which it has been argued unsuccessfully that a person's strong connection to Australia and its community takes a non-citizen out of the operation of the Migration Act: at [17]. Her Honour noted that it had been observed that, as a matter of etymology, 'alien' means belonging to another place. However, that language was characterised as 'not a reference to perceptions' but a description of 'a person's lack of formal legal relationship with the community or body politic of the country with which they contend to have a connection': at [18]. It was noted that the plaintiffs did not challenge those decisions, but sought to 'distinguish their circumstances from the plaintiffs in those cases by reference to the special connection which they, as Aboriginal persons, have to Australia': at [20]. Her Honour did not accept that claim.

67    Bell J described the issue in the case as being 'whether, as the plaintiffs assert, Aboriginal Australians are persons who cannot possibly answer the description of "aliens" in the ordinary understanding of the word': at [51]. Her Honour then reasoned that: 'Recognition that, in some circumstances, an attempt by the Parliament to ascribe the status of alien to a person would be beyond power allows of the possibility that a person may not hold Australian citizenship and yet not be an alien': at [64]. Further, that it does not follow that the possession of foreign citizenship necessarily brings a person within the scope of the aliens power: at [66]. In finding for the plaintiffs, her Honour said at [73]-[74]:

… It is not offensive, in the context of contemporary international understanding, to recognise the cultural and spiritual dimensions of the distinctive connection between indigenous peoples and their traditional lands, and in light of that recognition to hold that the exercise of the sovereign power of this nation does not extend to the exclusion of the indigenous inhabitants from the Australian community.

The conclusion is not to deny that an attribute of every sovereign state is the power to decide whether an alien is admitted to membership of the community and to expel an alien whom it chooses not to suffer to remain. As Gleeson CJ observed in Te, the exercise of the power is vital to the welfare, security and integrity of the nation. The position of Aboriginal Australians, however, is sui generis. Notwithstanding the amplitude of the power conferred by s 51(xix) it does not extend to treating an Aboriginal Australian as an alien because, despite the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place.

(footnotes omitted)

68    Gageler J found that there was no constitutional category of 'non-citizen non-aliens': at [132]. The plaintiffs did not claim that the Australian Citizenship Act 2007 (Cth) was invalid as to its operation: at [111]. In those circumstances, the power conferred upon Parliament to lay down criteria for determining with specificity which persons were and which persons were not to have the legal status of members of the politic of the Commonwealth of Australia had been expressed: at [94]. Accordingly, by reason of not having the status of an Australian citizen according to criteria of general application prescribed by legislation validly enacted under s 51(xix) of the Constitution, each of the plaintiffs is an alien within the meaning of that provision: at [141].

69    Keane J noted that the requirements of citizenship are currently to be found in the Australian Citizenship Act 2007 (Cth) and the plaintiffs did not challenge its validity or the proposition that they have not been naturalised as citizens under that Act: at [165]. The aliens power has outer limits which mean that Parliament could not invent its own peculiar definition of alien to include persons who could not possibly fit the description 'alien': at [168]. In dismissing the particular claim by the plaintiffs based on this, his Honour reasoned at [177]:

Alienage or citizenship is a status created by law. That status is a relationship between an individual and the sovereign nation. It is not a relationship between an ethnic group and the nation. Nor is it a relationship between an individual and an ethnic group. Australian law does not recognise an entitlement to membership of the Australian body politic independently of the satisfaction of the ordinary legal requirements and qualifications for Australian citizenship.

(footnotes omitted)

70    Nettle J summarised the relevant legal position in the following way at [236]:

Section 51(xix) of the Constitution empowers the Commonwealth Parliament to make laws with respect to 'naturalization and aliens'. The word 'aliens' is not, however, defined in the Constitution. Rather, the wide power conferred by s 51(xix), construed with all the generality that its terms permit, has been held to include the power to determine who shall be treated as an alien. That power may be exercised by creating and defining a concept of Australian citizenship and attaching incidents of alienage to persons who are not 'Australian citizens'. But it is subject to the limitation recognised in Pochi v Macphee: that the Parliament may not determine to treat as an alien a person who could not possibly answer the description of 'alien' according to the ordinary understanding of the word.

(footnotes omitted)

71    His Honour restated the question for consideration as being 'whether it is within the legislative competence of the Parliament under s 51(xix) of the Constitution to treat either plaintiff as an "unlawful non-citizen" (within the meaning of s 14(1) of the Migration Act), and thus to detain and possibly to deport him under ss 189, 196 and 200 of the Migration Act': at [241]. As to that question, his Honour found that 'once it is accepted, as it must be, that the aliens power is not entirely untrammelled, it necessarily follows that some individuals would not be aliens even if denied Australian citizenship by statute': at [252]. However, his Honour then went on to conclude at [254]:

Hence, as a general proposition, there is no difficulty in describing a child who is born outside Australia and who is a citizen of a foreign country as an 'alien' within the ordinary understanding of that word - even if one of his or her parents is an Australian citizen. Generally speaking, Parliament has power under s 51(xix) of the Constitution to provide, as it has done, that such a person is and will remain a non-citizen, and so liable to treatment as an alien, unless and until that person is granted Australian citizenship under s 16 of the Australian Citizenship Act 2007.

72    Thereafter, his Honour dealt with the more particular question 'whether Aboriginal descent, self-identification as a member of an Aboriginal community and acceptance by such a community as one of its members constitute such a relationship with the Crown in right of Australia as to put a person beyond the reach of that legislative power': at [254]. His Honour found for the plaintiffs as to the answer to that question by reasoning that depended entirely upon the unique status of Aboriginal peoples in Australia.

73    Gordon J framed the question in the following manner (at [294]):

The specific question before the Court - whether Aboriginal Australians, born overseas, without the statutory status of Australian citizenship and owing foreign allegiance, are aliens within the meaning of s 51(xix) - has not arisen before. No previous Australian court has considered that question. There is no binding authority.

74    As to the concepts of alienage and citizenship, her Honour reasoned at [304]:

Non-citizenship does not equate, in all cases, with alienage. It may be that, in most cases, someone who does not hold Australian citizenship is within the reach of the aliens power in s 51(xix) of the Constitution. It is settled that merely living in Australia for a long period does not convert someone from an alien to a non-alien, if they have not taken the step of acquiring citizenship. But the synonymy of the concepts of alien and non-citizen in most cases should not distract attention from the fact that the overlap is less than complete.

(footnotes omitted; original emphasis)

75    Her Honour then found that neither birthplace nor allegiance could be determinative of alienage. Further, that Parliament could not determine the breadth of its own power to make laws with respect to aliens. Her Honour then said that whether the plaintiffs were alien or non-alien was 'fundamentally a question of otherness': at [333]. Then her Honour reasoned that Aboriginal Australians 'occupy a unique or sui generis position in this country such that they are not aliens', being a connection with the land or waters that was not just ancestry or place of birth or even both: at [333], [373]. The connection meant that Aboriginal Australians are not foreigners within the constitutional concept of alien: at [374].

76    Edelman J stated the central question before the Court as being 'whether an Aboriginal person, identifying and accepted by their community as such, with a genealogy tied to the Australian land for tens of thousands of years, is an "alien" in Australia within the application of s 51(xix) of the Constitution': at [391]. As to that question, his Honour reasoned at [394]:

It is an error of principle to define 'alien' not as a foreigner to the Australian political community but instead, at a level of greater specificity, as depending upon the requirements that exist from time to time for statutory citizenship. A definition at that level of greater specificity would give 'alien' an essential meaning that fluctuated, evolving with changes to citizenship laws enacted by the British Parliament around the time of Federation and which would have been expected to evolve further. To tie the essential meaning of 'alien' to the transient concept of whatever the Commonwealth Parliament chooses it to be would also contradict the repeated denials by this Court that the Commonwealth Parliament has power to deem people to be aliens if they could not possibly answer the description of 'aliens' in the ordinary understanding of the word. The antonym of an alien to the community of the body politic cannot be a 'citizen'. It is a 'belonger' to the political community.

(footnote omitted)

77    In the course of further reasoning by reference to matters of principle, his Honour characterised the proposition that absorption into the political community may be sufficient to establish that a person was not an alien for the purposes of the constitutional head of power as being a large step to take that would involve re-opening the Court's decision in Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, a course that the plaintiffs did not invite: at [421]. Therefore, the decision does not rest upon any such broad proposition.

78    Therefore, Love did not seek to revisit the correctness of earlier authority that applies to a person in the circumstances of Ms Logan. The case was put and considered on the basis that it raised a novel question concerned with the particular status of the Aboriginal peoples who were the country's original inhabitants and who, by a series of High Court decisions concerned with native title, had been found to have a spiritual or metaphysical connection with the land. It was not argued on the basis of any challenge to the correctness of previous High Court authority. There is no majority reasoning which could provide a foundation for a conclusion that there had been some implied over-ruling or qualification of earlier authority. Therefore, according to binding High Court authority, ground 3 must be dismissed.

Conclusion and orders

79    For reasons I have given, ground 1 should be upheld with the result being that the application for review should be allowed, the decision of the Minister set aside and the matter remitted for determination according to law. Both parties accepted that costs should follow the event and there should be an order accordingly.

Associate:

Dated:    28 July 2020