Federal Court of Australia

Gubbay v Minister for Home Affairs [2020] FCA 1417

ORDERS

THE COURT ORDERS THAT:

1.    The amended application for review filed 21 May 2020 is dismissed.

2.    The applicant is to pay the respondent’s costs of and incidental to this application to be taxed if not agreed.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    Under s 501BA of the Migration Act 1958 (Cth) (the Act), the Minister for Home Affairs (the Minister) has a discretion to set aside a decision of the Administrative Appeals Tribunal (the Tribunal) made under s 501CA, which decision revoked an earlier decision made by the Minister or his delegate under s 501(3A), to cancel a person’s visa. The Minister may do so if he is satisfied about two things: that the person concerned “does not pass the character test” described in ss 501(6) and (7) of the Act; and that the cancellation of that person’s visa “is in the national interest”.

2    This proceeding concerns such a decision. It was made by the Minister on 6 January 2020 and it effected the cancellation of a visa held by Mr Raymond Gubbay, the applicant.

3    Mr Gubbay does not dispute that he does not meet the first criterion mentioned above, namely that he does not pass the character test. Accordingly, the issues he has sought to raise in this proceeding are confined to the Minister’s decision insofar as it concerns the latter criterion: that the cancellation of his visa was in the national interest.

THE FACTUAL BACKGROUND

4    Mr Gubbay’s acceptance that he does not meet the first criterion arises from the following series of events. On 29 November 2018, he was convicted of six domestic violence offences in the District Court of Queensland at Hervey Bay. Four of those convictions were for assault occasioning actual bodily harm and the remaining two were for distributing a prohibited visual recording. The victim was Mr Gubbay’s then wife, SG. The offences were committed over a period of nine days in 2017.

5    The events leading up to those convictions were as follows. Mr Gubbay is a citizen of the United Kingdom. He met SG in 2002 while he was operating an English Language School and Translation Service in Germany. She was a lieutenant in the German Army and was studying medicine. They married in 2003. The couple have four children, two of whom, a girl and a boy, were born by the time they migrated to Australia in 2011. Two more boys were born in Australia. Mr Gubbay was their primary carer from birth, leaving SG to complete her medical studies.

6    In his written submission to the Minister’s Department and in his evidence to the Tribunal, Mr Gubbay described his perception of his situation at the time of his offending as follows. He said he had suffered injuries in a motor vehicle accident and was on painkillers and on crutches. He said that, at the same time, he was caring for their four young children while SG was working long hours. He claimed SG had told him that she was having feelings for Mr Gubbay’s friend, who was her boxing trainer. He said he felt “betrayed”.

7    The offences involved Mr Gubbay showing nude pictures of SG to two mutual friends, in her presence; threatening, slapping and punching her; and putting clothes pegs on her nipples during sexual intercourse thereby causing petechial haemorrhaging. SG made a complaint to the police. Mr Gubbay was subsequently arrested and charged. He was then bailed and a domestic violence order was issued preventing him from having any contact with SG, or his children.

8    Mr Gubbay spent 16 months in the community on bail prior to his sentencing. During that time he did not commit any further offences and he was permitted to visit his mother in England. She was seriously ill, so much so that she died during his visit. In the same 16 month period, he met, and formed a relationship with, another woman, MM. MM has two sons, one of whom lives with her.

9    Mr Gubbay pleaded guilty to all the offences and he was sentenced to 15 months imprisonment, suspended after four months.

10    On 24 January 2019, while he was in prison serving the unsuspended part of his sentence, Mr Gubbay’s Class EN Subclass 186 Employer Nomination Scheme visa was cancelled under s 501(3A) of the Act.

11    In response, he applied to the Minister for a revocation of that cancellation under s 501CA(4) of the Act. That application was refused by a delegate of the Minister on 8 October 2019.

12    Mr Gubbay then sought a review of that decision in the Tribunal under s 500(1)(ba) of the Act. On 24 December 2019, the Tribunal set aside the delegate’s decision of 8 October 2019.

13    Finally, on 6 January 2020, the Minister made the decision mentioned above to set aside the Tribunal’s decision.

14    Mr Gubbay has since left Australia and returned to the United Kingdom to be with his ailing father.

THE MINISTER’S REASONS FOR DECISION

15    The reasons the Minister provided for his decision were divided into five sections, some of which contained a number of subsections. The first was an introductory section where the Minister: briefly recorded the procedural history of Mr Gubbay’s matter (at [1]-[6]); outlined the provisions of s 501BA of the Act (at [7]-[10]); and, although Mr Gubbay was not invited to make further submissions, recorded that the Minister had considered the representations already made by Mr Gubbay. He did the latter in the following terms (at [11]):

I have, however, given consideration to representations made by or on behalf of Mr GUBBAY in relation to the original decision, and in the [Tribunal] proceedings which resulted in the [Tribunal] revoking the decision to cancel Mr GUBBAY’s visa on 24 December 2019.

16    The second section was headed “CHARACTER TEST” (at [12]-[16]). In that section, the Minister considered the first criterion mentioned above. Since that matter is not in dispute in this proceeding, it is unnecessary to summarise the contents of this section here.

17    The third section was headed “NATIONAL INTEREST” (at [17]-[63]). In that section, the Minister considered the second criterion above. He did that in two subsections. The first was headed “Criminal conduct”. The Minister considered that matter (at [21]-[31]) and concluded that (at [31]):

Having considered the circumstances and nature of Mr GUBBAY’s conduct, involving domestic violence and the dispositions imposed by the court up to 15 months imprisonment, albeit all suspended for three years after serving four months, I conclude that Mr GUBBAY’s conduct is of such seriousness that it is in the national interest to cancel his visa.

18    The second subsection was headed “Risk to the Australian Community”. The Minister considered that matter (at [32]-[62]) and concluded as follows (at [60] and [62]):

60.    Overall, I find that there is an ongoing risk that Mr GUBBAY will reoffend.

…

62.    I consider that further offending of a violent nature by Mr GUBBAY[,] particularly in a domestic capacity, could result in serious physical and psychological harm to members of the Australian community.

19    The Minister then reached the following conclusion as to his state of satisfaction in respect of the national interest criterion (at [63]):

In sum [sic – summary], having regard to the above, including the nature and seriousness of his criminal conduct and the risk to the Australian community, were he to reoffend, I conclude that these matters are of such seriousness that it is in the national interest to cancel Mr GUBBAY’s visa.

20    The fourth section of the Minister’s reasons was headed “DISCRETION” (at [64]-[103]). As with the third section, that section contained a number of subsections. The first was headed “Best interests of minor children” (at [65]-[77]). The Minister considered that matter and concluded as follows (at [77]):

I find that it is in the best interest of Mr GUBBAY’s two step-sons that [he] remains in Australia. However, I note that due to his incarceration and time spent in Immigration detention Mr GUBBAY has had little day-to-day involvement with his step-sons. I therefore give this finding less weight.

21    The next subsection was headed “Expectations of the Australian community” (at [78]-[80]). The Minister considered that matter and concluded as follows (at [80]):

I find that Mr GUBBAY has breached the trust of the Australian community as he has been convicted in Australia of multiple domestic violence offences including assault. Given the serious and violent or degrading nature of the offending, I conclude that the Australian community would expect that Mr GUBBAY should not hold a visa.

22    In the following subsection, the Minister considered “The strength, nature and duration of ties to Australia” (at [81]-[94]). The Minister considered that matter and concluded as follows (at [94]):

Mr GUBBAY has spent seven years contributing to the community by his support of local community groups and volunteering. I find that Mr GUBBAY has been making a positive contribution to the community.

23    The penultimate subsection was headed “Impact on victims”. That subsection comprised only one paragraph ([95]). That is likely explained by the fact that, in it the Minister considered certain “non-disclosable information pursuant to s5(1) of the Act”. The Minister’s conclusion on that matter was that (at [95]):

… I find that there will be an on-going negative impact on the victim [SG] in the event that Mr GUBBAY is allowed to remain as a permanent resident of Australia.

24    In the final subsection the Minister considered the “Extent of impediments if removed” (at [96]-[103]). On that matter, the Minister made two findings as follows (at [102]-[103]):

102.    I find that as Mr GUBBAY has family residing in the United Kingdom, and has resided there for many years he would therefore have a strong familiarity with the United Kingdom. Furthermore, I find that Australia and the United Kingdom share strong similarities in their social and cultural profiles and given these similarities, and [sic] that Mr GUBBAY would not experience any significant social, cultural or language barriers.

103.    I also find that Mr GUBBAY would face challenges in adapting to life in the United Kingdom due to exacerbated emotional turmoil from being separated from his partner and her family, and importantly his own children.

25    The fifth and final section of the Minister’s reasons was headed “CONCLUSION” (at [104]-[112]). In that section, the Minister summarised and weighed the factors for and against him exercising his discretion to set aside the Tribunal’s decision (at [105]-[111]). Ultimately, he concluded as follows (at [112]):

I find that the above considerations favouring non-cancellation are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the original decision of the [Tribunal] of 24 December 2019, and to cancel Mr GUBBAY’s Class EN Subclass 186 Employer Nomination Scheme visa under s501BA of the Act.

THE RELEVANT STATUTORY PROVISIONS

26    Section 501BA provides:

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

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

Action by Minister—natural justice does not apply

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

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

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

(ii)    paragraph 501(6)(e); and

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

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

Minister’s exercise of power

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

Decision not reviewable under Part 5 or 7

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

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

(Emphasis in original)

27    As the Minister noted in his reasons, the power under this section may only be exercised by him personally (reasons at [8]) and the rules of natural justice do not apply to the decision (reasons at [9]).

28    It is also to be noted that, unlike ss 501C(3) and 501CA(3), there is no requirement for the Minister to give notice to the person who will be affected by the decision, nor is there a requirement to seek representations from that person. As the Minister remarked in his decision, this state of affairs meant that “Mr [Gubbay] has not had the opportunity to advance reasons why an adverse decision should not be made, including because of the impact such a decision would have on him and his family”, and that it would also mean Mr Gubbay would “not be given the gist of the s5(1) non-disclosable information for comment” (reasons at [10]). Nonetheless, the Minister did volunteer that he had given consideration to the representations Mr Gubbay made in relation to the original decision and the submissions that he had made to the Tribunal (reasons at [11] set out at [15] above).

THE GROUNDS OF REVIEW

29    In his amended originating application, Mr Gubbay advanced three grounds of review, with supporting particulars, as follows:

1.    The Minister erred in failing to complete the exercise of his jurisdiction and/or acted in a manner that was legally unreasonable.

Particulars

c)    The Minister failed to consider submissions made to the [Tribunal], and the findings of that Tribunal, that [Mr Gubbay] had spent 16 months in the community after the offending for which he was convicted, without further offending.

Further Particulars

(i)    The Minister found [reasons at [58]], entirely in the absence of evidence and contrary to the evidence, that [Mr Gubbay’s] stated reformed conduct had not been tested in the community.

(ii)    The Minister inferred [reasons at [108]], also in the absence of evidence and contrary to the evidence, that [Mr Gubbay] has continued to breach the law and judicial orders.

2    The Minister’s decision was affected by legal unreasonableness.

Particulars

(a)    The Minister’s treating the nature and content of [Mr Gubbay’s] offending, and his risk to the community as relevant to the national interest whilst treating the harm caused to his biological children by his separation from them as relevant only to his discretion lacked an evident and intelligible justification.

3.    The Minister erred in failing to consider the legal consequences of his decision.

Particulars

a)    Failure to consider that as a consequence of his decision, [Mr Gubbay] will never be permitted to return to Australia as he will never meet the requirements of cl. 5001 of Schedule [5] to the Migration Regulations 1994;

(Errors in original)

30    I will consider these three grounds in order under the following headings: the risk of reoffending ground; the interests of the children ground; and, the “never be permitted to return to Australia” ground.

THE RISK OF REOFFENDING GROUND

31    As its heading implies, this ground concerns the way in which the Minister dealt with Mr Gubbay’s risk of reoffending. In the particulars of this ground (see at [29(1)(c)] above), Mr Gubbay placed reliance on two paragraphs of the Minister’s decision: [58] and [108]. With respect to [58], he contended that, since he had spent 16 months in the community on bail while awaiting sentencing, the Minister was incorrect when he stated that his risks of reoffending “are yet to be put to the test in the community”. In support of this contention, he pointed to the fact that the Tribunal had found (at [136] of its reasons) that his conduct during that period “reflects [Mr Gubbay’s] law-abiding and exemplary demeanour save for the nine days in which his behaviour was inappropriate”. As for [108], Mr Gubbay claimed that finding led to the “inevitable conclusion” that the Minister had failed to apply an active intellectual process to the representations made to him and the evidence put before him. Accordingly, he contended the Minister had acted in a manner that was legally unreasonable (see at [29(1)] above).

32    In response, the Minister contended that [58] of his reasons must be read in its proper context. While that part of his reasons contained the factors adverse to Mr Gubbay that went to support the Minister’s ultimate conclusion about Mr Gubbay’s “ongoing” risk of reoffending (see at [60] of the reasons set out at [18] above), elsewhere in his reasons, the Minister had set out a number of factors that weighed in Mr Gubbay’s favour. They included the following (at [41] and [57] respectively):

(a)    “After being arrested and bailed for the offending, [Mr Gubbay] was prohibited from all contact with his wife by a Protection Order, which he complied with at all times” and he “remained in the community for 16 months prior to going to prison”; and

(b)    in noting the factors that were likely to reduce the risk of Mr Gubbay’s reoffending, the Minister concluded “the Protection Order remains in place and whilst in the community [Mr Gubbay] did not breach this order in 16 months. I also note Mr GUBBAY’s rehabilitative efforts, the professional opinion of Dr Yoxall, her risk assessments and reasons given to support a low risk of reoffending, and that the [Tribunal] also found Mr GUBBAY to be a low risk of reoffending”.

33    Furthermore, the Minister contended that, when its factual context is taken into account, his statement at [58] that Mr Gubbay’s risk of reoffending had not been tested in the community was not legally unreasonable, irrational or illogical. In support of this contention, he referred to the facts that Mr Gubbay was not in Australia between December 2017 and June 2018 and that it was in his interest to avoid breaching his bail conditions lest his bail be revoked. As to [108] of his reasons, the Minister contended that, on a fair reading, he was not there implying that Mr Gubbay had reoffended, but rather was stating that, if he were to reoffend, the Australian community could be exposed to harm. Finally, he contended that, in reaching his conclusion at [108], he had taken into account “non-disclosable information” (see at [23] above) and this fact made it difficult for Mr Gubbay to discharge his onus of proof on this ground.

34    In considering this ground, it is convenient to begin by setting out the two paragraphs of the Minister’s reasons identified in Mr Gubbay’s particulars above. Those two paragraphs, with emphasis placed on the parts of them particularly relied upon by Mr Gubbay, are as follows:

58.    However, I also take into account that Mr GUBBAY’s actions/offending conduct occurred over a nine day period and involved both physical violence against his then wife on multiple occasions, as well as degrading conduct in showing his friend intimate material of his wife without her consent, which indicates his level of contempt for his then wife at that time. I note that his actions were said to be impulsive and at a time when he was facing severe stressors in his life. I take into account that Mr GUBBAY is currently facing stressors such as his physical injury and current separation from his children and family law proceedings, which are likely to extend over a period of time. Such stressors may also impact on his new relationship with his partner and her children, that the [Tribunal] noted had not had substantial time to develop in the community. Although Dr Yoxall [Psychologist] was confident that Mr GUBBAY now had the resilience and support to manage his stressors, I remain concerned given he has shown some propensity to engage in violence during stressful periods in a domestic relationship capacity. Also, Mr GUBBAY’s stated reformed conduct and the views of Dr Yoxall re his low risk of offending, are yet to be put to the test in the community.

…

108.    I find that the Australian community could be exposed to harm should Mr GUBBAY reoffend in a similar fashion or continue to breach the law and judicial orders. I could not rule out the possibility of further criminal conduct by Mr GUBBAY. The Australian community should not tolerate any risk of further harm.

(Emphasis added)

35    Next, it is convenient to note where, in the overall structure of the reasons, these two paragraphs appear. First, [58] is located within the “Risk to the Australian Community” subsection of the “NATIONAL INTEREST” section of the Minister’s reasons (see at [17]-[18] above). In that subsection, the Minister was considering whether he was satisfied about the existence of the national interest criterion under s 501BA(2)(b). It should be reiterated at this point that the other criterion about which the Minister had to be satisfied concerning the character test under s 501BA(2)(a) is not in issue in this matter.

36    In contrast, [108] is located within the “CONCLUSION” section of the Minister’s reasons (see at [25] above) where the Minister weighed the factors for and against him exercising the discretion contained in s 501BA(2) of the Act to set aside the Tribunal’s decision and cancel Mr Gubbay’s visa.

37    This distinction is important in the present judicial review exercise. That is so because, as Derrington J pointed out in EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681 (EHF17) at [37]-[38], by reference to the judgment of Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 and a number of other High Court decisions, “it is necessary to identify the point in the decision-making process at which the alleged unreasonableness occurred and to distinguish between alleged unreasonableness in the exercise of discretion and illogical or irrational reasoning in the course of reaching a state of satisfaction which is a jurisdictional fact” (see also the discussion in EHF17 at [59]-[61]; BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [29]-[34]; and BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 (BHL19) at [140]).

38    So identified, the issue under review in the first stage of the decision-making process in this matter concerned the requirements in s 501BA(2)(b), specifically whether the Minister was satisfied about the existence of the jurisdictional facts described in that subsection such that he had the statutory power to proceed to exercise the discretion described in s 501BA(2). That is to say, the former point in the decision-making process required the formation of a state of satisfaction and the latter involved the exercise of a discretion.

39    Furthermore, the jurisdictional fact described in s 501BA(2)(b) (but not that in s 501BA(2)(a)) falls into that category of jurisdictional facts described as “subjective jurisdictional facts” (see Ali v Minister for Home Affairs (2020) 380 ALR 393; [2020] FCAFC 109 (Ali) at [39]-[41]. That means that the “question for a court on review is not whether [it] existed, but whether the Minister was satisfied that [it] existed” (Ali at [41]).

40    However, it is important to emphasise that at both stages of this decision-making process, the Minister was required to act rationally according to the “rules of reason” (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [26] per French CJ), or according to an “implied condition of reasonableness” (see Li at [90] per Gageler J).

41    The principles bearing on a review for alleged unreasonableness in discretionary decision-making under the Act do not require rehearsing. They have been reviewed frequently and extensively in judgments of this Court, recent examples of which include the five member Full Court decision in Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [34]-[41] and BHL19 at [129]-[138].

42    In EHF17, Derrington J provided the following helpful summary of the principles bearing on a review for alleged unreasonableness in reaching a state of satisfaction about a subjective jurisdictional fact (at [70]):

Thus, in conformity with the manner in which the legislature has granted power, any review by the Court, as to the existence of a subjective jurisdictional fact must be limited to determining whether the state of mind actually reached is one within the range which the legislature intended to be formed as a pre-requisite to the exercise of power. If there are errors in the process by which a state of mind is reached, such as by considering extraneous or irrelevant considerations or by excluding relevant considerations, the state of mind will not be that which the legislature impliedly requires. Similarly, if, in reaching the state of mind, the repository of power has asked themselves the wrong question as a consequence of a mistake of law, the state of mind is not that on which the exercise of power is conditioned. It might also be noted that the Parliament implicitly intends the requisite state of mind should be one which has been formed logically and rationally upon findings of fact which are logically formed upon probative evidence. Further, even if it cannot be detected that an error occurred in the application of law or consideration of the correct matters, if the conclusion is one which is wholly unreasonable, it can, nevertheless, be inferred that one of the identified error[s] has occurred …

43    In EHF17, his Honour also outlined the principles bearing on the more focused review connected with alleged irrationality, illogicality and illogical fact finding with respect to a jurisdictional fact (see at [73]-[85]; see also BHL19 at [142]-[146]).

44    Since the subjective jurisdictional fact in this matter concerned the national interests, it is also appropriate to note the following observations of Kirby J in Re Paterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 at [330]-[331]:

330    … the designation of the Minister as the repository of the power, and the specification that the Minister personally must exercise the power of the kind mentioned in s 501(3) of the Migration Act, obviously reflect the importance, potential controversy and need for political accountability in such a decision and the high responsibility that Ministers bear in protecting the national interest in this and other fields. What is the “national interest” does not readily lend itself to the compartmentalisation of the considerations involved.

331    … It would be contrary to principle for the words “in the national interest” to be given a confined meaning. However broad may be the jurisdiction conferred by the constitutional writs, they do not permit a court to substitute for the satisfaction of the Minister, provided by the Act of Parliament, the satisfaction of judges who are not accountable to the Parliament or the people in the same way as the Minister.

(Footnotes omitted)

45    To similar effect, in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 (Carrascalao) the Full Court said of the expression “in the national interest” that (at [156]):

There can be no doubt that, in this particular statutory context, the expression “national interest” is, like the expression “public interest”, one of considerable breadth and essentially involves a political question which was entrusted to the Minister.

46    Then, at [157], the Court went on to observe that the following statements with respect to the expression “public interest” in the majority judgment in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 “have even stronger force when the relevant statutory expression is the ‘national interest’”:

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

(Footnotes omitted; emphasis in original)

47    A number of further observations are appropriate with respect to the present judicial review exercise as it concerns this ground and the second ground below. The first is to reiterate the point already made above that the power in s 501BA may only be exercised by the Minister personally. The second is to note the observation of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119 that “where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached” (emphasis added). See also Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [137] and Derrington R, “Migrating Towards a Principled Approach to Reviewing Jurisdictional Facts” (2020) 27 A J Admin L 70-87 at 84.

48    Thirdly, the test for reasonableness, whether in respect of the exercise of a statutory discretion, or a state of mind satisfaction, is to be applied stringently (see Li at [108] and [111] per Gageler J and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [11] per Kiefel CJ).

49    Fourthly, as the applicant, Mr Gubbay bears the onus to demonstrate that the Minister was not duly satisfied that cancellation of his visa was in the national interest, or that he exercised his discretion in a legally unreasonable manner (see Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [24] per French CJ, Bell, Keane and Gordon JJ)”.

50    Finally, in assessing whether the Minister’s reasons reflect a relevant error, those reasons have to be read fairly and not with an eye keenly attuned to the detection of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

51    When these principles are applied to this ground of review, I consider they illuminate numerous reasons why it must fail. With respect to the Minister’s comments at [58] of his reasons, they include: the absence of any defined factual matters in s 501BA to which the Minister is required to have regard in reaching his state of satisfaction about the national interest; the broad meaning that is to be given to the expression “national interest”; the political nature of the task concerned and the fact it must be undertaken personally by the Minister; and the stringency to be applied in reviewing such a decision for unreasonableness. Having regard to all these factors, there is, in my view, simply nothing in [58], or elsewhere in the Minister’s reasons, that provides any support to Mr Gubbay in discharging his “very difficult” onus to show that the state of satisfaction the Minister reached at [63] of his reasons (see at [19] above) with respect to the national interest was not duly formed.

52    As for [108], there is also nothing in that paragraph to demonstrate that the Minister acted in a legally unreasonable way in deciding at [112] of his reasons (see at [25] above) to exercise his discretion to set aside the Tribunal’s decision and cancel Mr Gubbay’s visa. In any event, on this aspect, I agree with the Minister’s contentions at [33] above that, on a fair reading, that paragraph contains no error. That is to say the Minister was, in that paragraph, addressing the possibility of Mr Gubbay continuing “to breach the law and judicial orders” as a future contingency, rather than an existing fact. As well, I agree with the Minister’s final contention at [33] above that the non-disclosable information to which he had regard exacerbates the already difficult task Mr Gubbay has in discharging his onus on this ground.

53    For these reasons, I reject as unmeritorious Mr Gubbay’s risk of reoffending ground.

THE INTERESTS OF THE CHILDREN GROUND

54    This ground concerns the Minister’s treatment of the adverse effect Mr Gubbay’s separation from his children is likely to have on them. Specifically, that the Minister only considered this factor in exercising his discretion to set aside the Tribunal’s decision and not in forming his state of satisfaction about the national interest criterion. Mr Gubbay acknowledged that it is not necessary in all cases for the Minister to consider the best interests of children as relevant to the national interest, referring to Carrascalao at [158]. However, he contended that, in the particular circumstances of his matter, it was a relevant factor to which the Minister should have had regard. While Mr Gubbay also accepted that it was a matter for the Minister to determine what factors were relevant to his assessment of the national interest, he contended that, in identifying those factors, he was, in effect, exercising a discretion as to which factors he took into account and, accordingly, his exposition of those factors was subject to legal reasonableness considerations, in particular that there must be “an evident and intelligible justification” for them, relying on Li at [76]. Had the adverse effect of separation on his children been considered by the Minister as a factor bearing on the national interest, rather than only as a factor in the exercise of his discretion, Mr Gubbay contended that it could have weighed differently.

55    The Minister contended that it was for him to decide the factors relevant to assessing the national interest in this matter and he was under no obligation to identify all of the possible considerations that may have been encompassed in that assessment relying on Carrascalao at [158]. Further, he contended that, even if he had considered the interests of Mr Gubbay’s children under the rubric of the national interest, he would not have weighed that factor differently. Finally, he contended that, while he considered that the interests of Mr Gubbay’s children would be best served by not cancelling his visa, he duly and properly concluded that the national interest and the non-disclosable information regarding Mr Gubbay’s victim outweighed that factor.

56    The principles relevant to this ground have already been summarised above and do not require reiteration. It is common ground that s 501BA of the Act does not define any factual matters to which the Minister must have had regard in reaching his state of satisfaction about the national interest. The determination of those factors was, as is already mentioned above, therefore a political decision which was left to the Minister to decide personally, but acting reasonably.

57    It is clear from the summary of the Minister’s reasons above that he did not expressly mention the interests of Mr Gubbay’s children in the third section of his reasons where he considered the national interest criterion (see the summary at [17]-[19] above). He did, however, mention that issue a number of times in later sections, including at [77] (set out at [20] above), at [98], at [105] and at [109].

58    Nonetheless, I do not accept Mr Gubbay’s contention that the particular circumstances of his case required the Minister to have regard to the adverse effect separation from him would have on his children and on his partner’s children. He did not explain what those circumstances were and none readily emerges from the paragraphs of the Minister’s reasons mentioned above. Having regard to the principles set out above, I also do not accept Mr Gubbay’s contention that the Minister was, in effect, exercising a discretion in determining what factors he had regard to in coming to his state of satisfaction about the national interest. Consequently, I reject his contention that the Minister had to demonstrate an evident and intelligible justification for the factors that he did or did not have regard to in reaching his state of satisfaction. This, however, should not be taken as denying that the Minister has to act reasonably in reaching that state of satisfaction.

59    Instead, I consider the Court’s reasoning in Carrascalao at [158] (directed to s 501(3)(d), which uses the same “national interest” criterion as s 501BA(2)(b)), to which both parties referred in their submissions, applies equally to this matter and explains why the Minister’s contentions on this ground must be accepted and why Mr Gubbay’s must be rejected. That paragraph provides as follows:

… We accept the Minister’s submission that it is a matter for the Minister to decide, on the merits of any particular case, what national interest factors are engaged in that case (see Leiataua at [21] per Jessup J). There is no obligation on the Minister, in determining whether or not to exercise his power under s 501(3), to advert to all and every possible consideration which may inform an assessment of the national interest in the particular case. Accordingly, the absence of any reference in this part of the Minister’s statements of reasons to the best interests of the child does not give rise to an inference that the Minister considered that, as a matter of construction, the national interest excluded the best interests of the child. We accept the Minister’s submission, that, at best, an inference might arise that the Minister regarded the best interests of the child as not bearing upon his assessment of the national interest in the particular circumstances of the cases relating to Mr Taulahi and Mr Carrascalao. Nothing we have said above is intended to deny the established view that the Minister’s satisfaction that cancellation is in the national interest must be a satisfaction which is attained reasonably (see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [167] per Gummow and Hayne JJ, with whom Gleeson CJ agreed and Madafferi at [89] per French, O’Loughlin and Whitlam JJ).

60    For these reasons, I do not consider this ground has any merit.

THE “NEVER BE PERMITTED TO RETURN TO AUSTRALIA” GROUND

61    Mr Gubbay’s third ground hinges on the provisions of cl 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) (the Regulations) which was amended by the Migration Amendment (Special Category Visas and Special Return Criterion 5001) Regulation 2015 (Cth) to include subsection (d). That clause relevantly provides:

5001 The applicant is not:

…

(d)    a person whose visa has been cancelled under section 501BA of the Act if the Minister has not, acting personally, granted a permanent visa to the person after that cancellation.

62    A person who has had their visa cancelled personally by the Minister under s 501BA therefore cannot be granted another visa for which satisfaction of cl 5001 is a criterion. This has the effect of ensuring that a person who has had their visa cancelled on character related grounds cannot be granted a further visa, unless the Minister, acting personally, subsequently grants them a permanent visa.

63    Mr Gubbay contended that the Minister was required to consider the legal consequences of his decision and, in particular, the fact that the cancellation of his visa under s 501BA, combined with the criterion in cl 5001(d), would result in him being unable to ever return to Australia and thereby prevent him from having future contact with his children. In putting this contention, Mr Gubbay relied on NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (NBMZ) and DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236 (DLJ18). He further contended that, instead of considering that consequence, the Minister had “merely referred to the Tribunal’s finding that it is likely that [he] would lose all future contact with his children, without [the] ongoing cooperation of SG”. Otherwise, he claimed that it was not evident from the Minister’s reasons that he had duly considered this consequence for himself. Finally, he emphasised that, in the statement of facts, issues and contentions that he provided to the Tribunal, he had specifically raised this matter as an issue.

64    The Minister began his submissions on this ground by pointing to the fact that s 501BA(2) does not expressly provide that he must have regard to cl 5001(d). Nonetheless, he accepted that, in making his decision, he was required by the ruling in NBMZ to give consideration to the legal consequences of his decision. However, he contended he was not required to have regard to every such consequence, but instead to “the legal framework in which [his] decision is made”, referring to Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177, Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523; [2018] FCAFC 68 and DLJ18. Further, since the prospect of Mr Gubbay being precluded from re-entering Australia depended on him making an application at some point in the future, and that application may never eventuate, he contended that the legal consequence of cl 5001(d) was not sufficiently proximate to his decision that it required specific consideration. In any event, he contended that he had impliedly had regard to the fact that, if he were removed from Australia, Mr Gubbay may never be able to return. In this respect, the fact that he did not refer expressly to cl 5001(d) in his reasons was, he contended, immaterial.

65    It is common ground that the ruling in NBMZ required the Minister to have regard to the legal consequences of his decision. The point of contention on this ground is the content of that requirement in the particular circumstances of this case. In the case of NBMZ, the legal consequence was that there was no country to which the applicant could be removed and, as a result, he was likely to face indefinite detention arising from the effect of various provisions of the Act. In this case, Mr Gubbay has already left Australia and returned to the United Kingdom where, as mentioned above, he is a citizen. Thus the drastic consequence of indefinite detention does not arise here. Nonetheless, he does find some support in DLJ18 (to which both parties referred in their submissions) for the proposition that the Minister was required to have regard to the operation of cl 5001(d) in making his decision.

66    In DLJ18, Flick J decided that, in making a decision under s 501CA(4) of the Act, the Minister was not required to have regard to cl 5001(c) (at [15]). On the other hand, Bromberg J considered that the consequence that a person would be precluded from returning to Australia as a result of the non-revocation decision was “clearly within the ambit of the statutory framework that the maker of a non-revocation decision has to have regard to” (at [28]). Finally, Snaden J said that, had it been necessary to decide that issue, he would have concluded that the Minister was not required to have regard to cl 5001(c) in making his decision (see at [57] and [87]).

67    As it turns out, I do not consider it is necessary to resolve which of these approaches in DLJ18 I should follow. That is so because, on a fair reading of the Minister’s reasons, I agree with the Minister that the prospect that Mr Gubbay may never return to Australia, and the resultant permanent separation from his children, was a consequence that was considered at numerous points in the Minister’s reasons where he used language such as the children “losing their dad” and Mr Gubbay “los[ing] all future contact with his children”. That consequence of his decision was therefore considered by the Minister, albeit without reference to the particular (but identical) consequence that could flow from the operation of cl 5001(d).

68    For these reasons, I do not consider this ground has merit.

CONCLUSION

69    For these reasons, Mr Gubbay has failed on all of his three grounds of review. His application must therefore be dismissed with costs. The orders will be:

1.    The amended application for review filed 21 May 2020 is dismissed.

2.    The applicant is to pay the respondent’s costs of and incidental to this application to be taxed if not agreed.

Associate:    

Dated:    1 October 2020