Federal Court of Australia

Broadbent v Minister for Home Affairs [2020] FCA 1626

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding, to be taxed if not agreed.

3.    If any party seeks a variation of the costs order, the party may give written notice to the Court and the other party within three business days.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

Introduction

1    This is an application for judicial review, pursuant to s 476A of the Migration Act 1958 (Cth) (Migration Act), of a Decision made on 25 February 2020 by the Minister of Home Affairs, pursuant to sub-s 501CA(4) of the Migration Act, not to revoke the cancellation of the applicant’s Class WR Subclass 070 Bridging R (Removal Pending) Visa.

2    On 24 January 2019, a delegate of the Minister cancelled the applicant’s Visa as required by s 501(3A) of the Migration Act. Between 1970 and 2019, the applicant accumulated a long criminal record, which included convictions on 13 August 2018 for which he was sentenced to an aggregate term of 14 months imprisonment. The delegate was satisfied that the applicant did not pass the character test in s 501(3A)(i) of the Migration Act on the ground of sub-s (6)(a) (substantial criminal record), on the basis of sub-s (7)(c) (sentence to a term of imprisonment of 12 months or more).

3    By his Amended Originating Application filed on 21 September 2020, the applicant relies on two grounds:

1.    The Minister’s purported decision is invalid by reason that the Minister lacked power under s 501CA to revoke the cancellation of Mr Broadbent’s visa.

2.    The Minister erred by failing to consider, in the relevant legal sense, evidence of significance to the question of whether to revoke the cancellation of Mr Broadbent’s visa, namely that he is a citizen of Zambia as compared with being ‘eligible to citizenship of the United Kingdom’.

4    For the reasons that follow, the application should be dismissed.

Key legislative provisions

5    It is convenient to set out the key legislative provisions of present relevance before setting out a summary of the facts. Section 501 of the Migration Act relevantly provided:

(3A)    The Minister must cancel a visa that has been granted to a person if:

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

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

6    That provision referred, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provided as follows:

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

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

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or …

7    Section 501CA provided:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Background

8    The following summary of the facts is based on the documents in the Court Book filed on 1 September 2020.

9    The applicant was born to British national parents in North Rhodesia (now Zambia) in May 1958. Together with his family, the applicant left North Rhodesia around 1964 and travelled to England, where the family lived for approximately one year before migrating to Australia. He arrived in Australia on 5 October 1965, aged seven, with his parents and siblings, and has not travelled out of Australia since that date. He is now aged 62.

10    The applicant has two Australian children; a son, born in May 1993, and a daughter, born in May 2000.

11    On 1 September 1994, the applicant was granted a Class BF Transitional (Permanent) visa. This visa was cancelled and reinstated twice, in 1999 and 2007. On 19 September 2008, the second cancellation decision was affected by an amendment to the Migration Act which resulted in the applicant becoming an unlawful non-citizen. On 5 May 2009, the Minister granted the applicant the Visa the subject of these proceedings under s 195A of the Migration Act to enable him to continue as the full-time carer for his father.

12    There is no dispute that the applicant’s circumstances fell within the criteria for mandatory cancellation set out in s 501(3A). The applicant’s criminal record commenced in 1970 when he was a minor. The record includes:

    Most recently, common assault, resulting in an intensive correction order for 7 months, dealt with by the Local Court in May 2019;

    Three counts of take & drive conveyance without consent of owner, not give particulars to other driver, negligent driving, use class A vehicle with unauthorised number plate affixed, licence expired less than 2 years before – prior offence, drive conveyance taken without consent of owner, and three failures to appear in accordance with bail acknowledgment, dealt with by the Local Court on 13 August 2018 and resulting in 14 months imprisonment;

    Common assault, dealt with in the District Court in January 2012;

    Supply prohibited drug on an ongoing basis, sentenced to four years imprisonment, and supply prohibited drugs on an ongoing basis, sentenced to six years imprisonment with a non-parole period of four years and six months, in the District Court in June 2004;

    Robbery with wounding, sentenced to a minimum term of imprisonment of six years, possession of a shortened firearm, sentenced to a fixed term of four years, malicious wounding, sentenced to a fixed term of four years, and assault occasioning actual bodily harm, sentenced to a fixed term of three years, dealt with by the District Court in April 1994. These sentences were upheld on appeal;

    Robbery with wounding, sentenced to 12 years imprisonment, robbery being armed, sentenced to 10 years imprisonment (concurrent), two counts of possession of a shortened firearm, each count sentenced to five years imprisonment to be served concurrently, two counts of supplying a prohibited drug, each count sentenced to five years imprisonment to be served concurrently, dealt with by the District Court in August 1988;

    Further offences spanning back to 1970 including offences dealt with by the Children’s Court, including stealing, drug and driving related offences.

13    On 24 January 2019, the applicant was informed by the Department that his Visa had been cancelled under s 501(3A) of the Migration Act. He was also informed of his opportunity to make representations to the Minister about revoking the decision to cancel his Visa.

14    On 12 February 2019, the Department received the representations made by the applicant in response to the visa cancellation. The Department received further information from the applicant on 2 May 2019, 9 August 2019 and 10 August 2019.

15    On 28 June 2019, the Department informed the applicant of further information it received which may be taken into consideration by the Minister, consisting of the applicant’s National Criminal History Check released 19 June 2019, and sentencing remarks made by the Local Court of New South Wales on 14 May 2019 and 13 August 2018, and by the District Court of New South Wales on 9 June 2004, a notice of intention to consider a visa cancellation, a written acknowledgement and written submission relating to a 2007 visa decision, and a notice of decision not to cancel the applicant’s visa from 2001.

16    On 12 September 2019 the Department sought clarification as to whether a person included in a 2007 form, but not the submissions accompanying the current revocation requests, was the applicant’s son. The applicant responded affirmatively on 14 September 2019.

17    The applicant was notified of the Decision by letter dated 27 February 2020, which was accompanied by the Minister’s Statement of Reasons for Decision, dated 25 February 2020 (Minister’s Reasons).

18    Under the heading “Conclusion”, the reasons for the Decision were encapsulated at [71] – [80]:

71.    I have undertaken: (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s 501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by s 501) for the purposes of s 501CA(4)(b)(i); and (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii).

72.    I concluded Mr BROADBENT has made representations in accordance with the invitation.

73.    I am not satisfied that Mr BROADBENT passes the character test (as defined by s 501).

74.    In considering, in light of Mr BROADBENT’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I have considered the length of time Mr BROADBENT has made a positive contribution to the Australian community in the 54 years that he has lived in Australia and/or the consequences of non-revocation of the original decision for his other family members, and the extent of impediments that Mr BROADBENT would face if he were removed to the United Kingdom.

75.    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 crimes committed by Mr BROADBENT some of which are of a violent nature, and involved a vulnerable member of the community, that being a minor person.

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

77.    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 Mr BROADBENT, than I otherwise would, because he has lived in Australia from a very young age.

78.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr BROADBENT represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above. These include his lengthy residence, his familial and community ties to Australia and the hardship Mr BROADBENT, his family and social networks will endure in the event the original decision is not revoked.

79.    I am also mindful that Australia has a low tolerance of criminal conduct by persons holding a limited stay visa, reflecting that there should be no expectation that such people remain in Australia. I note that most recent visa held by Mr BROADBENT was a Class WR Subclass 070 Bridging R (Removal Pending) visa.

80.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel Mr BROADBENT’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr BROADBENT’s Class WR Subclass 070 Bridging R (Removal Pending) visa remains cancelled.

19    The applicant commenced proceedings in this Court on 6 July 2020 and filed an Amended Originating Application for review of a migration decision on 21 September 2020.

Ground One

20    The applicant submits that the precondition to the exercise of power to revoke the cancellation of a visa under s 501CA by the Minister does not exist because the Minister did not make the decision under s 501(3A) to cancel his Visa. It is said that as that decision was made, not by the Minister, but by a delegate, the Minister lacked power to make any decision under s 501CA (AS [18]). This is said to flow from the plain terms of s 501CA(1) which provides, “This section applies if the Minister makes a decision … to cancel a visa that has been granted to a person”.

21    This may seem an unlikely construction for the applicant to urge, given that, if accepted, his Visa will remain cancelled. Nevertheless, the applicant contends that this is the preferable outcome on the basis that he would then make an application to the Minister personally for the grant of a visa under s 195A of the Migration Act. In that event, the applicant submits there would be a substantive advantage to him in the Decision having been determined to be a nullity by this Court. The Minister observes, correctly, that the relief sought by the applicant makes no difference to his ability to seek that the Minister exercise his power under s 195A of the Migration Act, but submits further that the suggestion that the Minister, who personally made the Decision now under review, would grant a discretionary visa to this applicant under s 195A is “fanciful”, citing AEM20 v Minister for Home Affairs [2020] FCA 623 at [113]-[117]. Given the conclusion I have reached in relation to this ground, it is unnecessary to reach a conclusion as to whether the relief sought is futile.

22    In support of the construction of s 501CA(1) for which the applicant contends, he points to the “interlocking provisions” immediately after s 501 which specify what happens after a decision under s 501 is made. It is said that “Each ‘specified prerequisite’ pivots on whether s 501 or a related power was exercised by the Minister or a delegate of the Minister or the AAT. It is the issue of who in fact made the decision which is the concern of ss 501A(1) [a delegate of the Minister or the Administrative Appeals Tribunal], 501B(1) [a delegate of the Minister], 501BA [a delegate of the Minister or the Administrative Appeals Tribunal], 501C [the Minister] and 501CA [the Minister], not the question of who the power is deemed by law to have been exercised by. Each of these gateways only opens if the relevant decision is made by the specified person” (AS [21]).

23    The conclusion that is sought to be drawn from this analysis is that “Parliament made it plain that when it referred to ‘the Minister’ in a gateway subsection of these interlocking provisions it meant the Minister and when it referred to a “delegate” it did not mean the Minister” (AS [24]). This is said to conform with s 19 of the Acts Interpretation Act 1901 (Cth), which provides that if a provision refers to a Minister by using the expression “the Minister”, without identifying the Minister, then the Minister referred to is the Minister, or any of the Ministers administering the provision on the relevant day, in relation to the relevant matter.

24    The applicant submits that, “… both s 501(3A) and s 501CA can be exercised by either the Minister or a delegate. However, it is only if the Minister in fact makes the decision under s 501(3A) that the power under s 501CA is enlivened. If it is so enlivened, s 501CA can then be exercised by either the Minister or a delegate. If it is not so enlivened, s 501CA cannot be enlivened” (AS [26]).

25    This construction has the unfortunate consequence that a reference to “the Minister” in what is described as the “gateway provisions” will be understood differently from a reference to “the Minister” in other subsections of the same provision. So, on the applicant’s preferred construction, “the Minister” in s 501CA(1) means “the Minister” but in s 501CA(4), “the Minister” means either the Minister or a delegate.

26    A similar argument was made in Marzano v Minister for Immigration and Border Protection [2016] FCA 1180 (Marzano (first instance)). Just as in the present case, a delegate of the Minister made a decision to cancel Mr Marzano’s Transitional (Permanent) (Class BF) visa pursuant to s 501(3A) of the Migration Act on being satisfied that Mr Marzano did not pass the character test: at [2]. He was notified of the cancellation decision and invited to make representations to the Minister about revocation of that decision pursuant to s 501CA: at [3]. The Assistant Minister, personally, decided not to revoke the decision to cancel the visa: at [5]-[6].

27    It was submitted that as the cancellation decision was made by a delegate, only that person (or the person holding that position if he or she later vacated it) has the power to decide whether to revoke the decision; the Minister did not have the power to do so: Marzano (first instance) at [56]. Moshinsky J said, at [57]-[58]:

In my view, for the following reasons, the applicant’s construction is not correct. It is clear that, subject to the applicant’s contention, the power in s 501CA(4) may be exercised by a delegate of the Minister or the Minister personally. That a decision as to revocation may be made by a delegate is clear from s 500(1)(ba) which provides that “decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa” are reviewable by the Administrative Appeals Tribunal (the AAT). Similarly, s 501G(1)(f) provides that, where a decision is made under inter alia s 501CA by a delegate of the Minister and the person has a right of appeal to the AAT, certain information is to be provided to the person.

There is nothing in s 501CA to support the applicant’s construction. The section does not imply or mandate that the person who made the cancellation decision is the only person who can revoke it. The power exercised under s 501CA is a distinct power from that exercised under s 501(3A). To the extent that the applicant relies on an implication from the word ‘revoke’, it is sufficient that both the cancellation decision and the decision as to revocation are reposed in the Minister, albeit that either or both may be made by a delegate of the Minister.

28    Moshinsky J drew a distinction between s 501CA and s 501C where the power of revocation in respect of a decision made under s 501(3) or 501A(3) is reposed in the Minister personally. He observed, at [61]:

Section 501(3A) provides for cancellation of a visa where certain conditions are met. Section 501CA is an ameliorative provision. The rationale for the s 501CA(4) power is that the visa holder was not afforded the opportunity of being heard before the decision to cancel the visa was taken under s 501(3A). Taking these matters into account, it is difficult to see any legislative purpose in restricting the power of revocation to the original decision-maker and precluding the Minister from exercising the power where the cancellation decision was made by a delegate. To the contrary, taking these considerations into account, the legislative purpose is better served by revocation being able to be determined by the Minister personally where the cancellation decision was made by a delegate.

29    The Full Court agreed: Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 per Collier, Logan and Murphy JJ. The Full Court observed, at [37], that it was “common ground that, in individual circumstances, the power granted by s 501CA(4) to revoke a visa cancellation decision may be exercised by the Minister or a delegate of the Minister”.

30    In the present case, the applicant did not demur from that proposition but submitted that different consequences flowed depending on who in fact made the decision, the Minister or a delegate, rather than by whom the power is deemed to have been exercised in law. The applicant sought to distinguish the decision in Marzano on the basis that it was concerned only with whether the use of the word “revoke” limited the exercise of the power to the maker of the original decision-maker and had not considered that s 501CA(1), as the “gateway provision”, required that the power be exercised by the Minister only “if the Minister makes a decision…under subsection 501(3A) – because Parliament meant what it said”. The applicant contends that the power in s 501CA(4) is simply not enlivened if a delegate, and not the Minister, makes the cancellation decision under s 501(3A).

31    Such a contention cannot be maintained consistently with the reasoning of the Full Court, which said:

[37]    … That a delegate of the Minister may have the power to revoke a visa cancellation decision is notwithstanding that:

•    section 501CA itself is couched in terms referring only to decisions of “the Minister”, and

•    section 501CA makes no specific reference to decisions of delegates.

[38]    Clearly, s 496 of the Migration Act empowers the Minister, by writing, to delegate to any person any of the Minister’s powers under the Migration Act, including the power to revoke a cancellation decision, and to that extent gives effect to the so-called Carltona principle whereby Ministers of the Crown may properly delegate administrative functions to Departmental officials (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; O’Reilly; Dooney v Henry (2000) 74 ALJR 1289; 174 ALR 41); [2000] HCA 44). That this is further so in respect of powers conferred by s 501CA(4) is evident, for example, from the terms of s 500(1)(ba) of the Migration Act, which permits applications to be made to the Administrative Appeals Tribunal in respect of:

(ba)     decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

…

[40]    the interpretation of s 501CA(4)(b) promoted by the appellant – namely that it is only the delegate who can revoke the delegate’s visa cancellation decision (and presumably only the Minister who can revoke a visa cancellation of the Minister) – would produce an inflexible practical outcome for which neither statutory nor policy justifications have been advanced. This interpretation would result, for example, in operative inconvenience if the relevant delegate left the Department, or the position of the delegate were reclassified. The proposed construction also ignores the point I have already made, namely that in exercising the power under s 501CA(4)(b) the delegate is actually exercising an administrative power of the Minister, and it follows that any power of revocation is similarly vested in the Minister.    

32    The applicant sought to draw support for his preferred construction from the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542, which was concerned with the question of whether the Minister might revoke the Minister’s own decision under s 501(1) or s 501(2). As the Full Court observed in Marzano, at [45], the observations made in Watson were made in the context of provisions of the Migration Act which predate the enactment of s 501(3A) and s 501CA. By contrast with those provisions, s 501CA specifically addresses revocation of decisions under s 501(3A), which decisions could be made by either the Minister or a delegate. Further, several powers conferred by the legislation can be exercised only by the Minister personally, for example those exercisable under s 500A(1) and (3), s 501(3), s 501A(2) and (3), s 501B(2), and s 501BA(2). Again, by contrast, there is no statutory mandate in s 501CA which limits either the Minister or a delegate to personally exercise the power conferred by that sub-section: Marzano at [47].

33    A decision of the Minister’s delegate made in accordance with s 501(3A) of the Migration Act, which decision was made by the delegate in exercise of the powers of the Minister, can be subject to the exercise of the power by the Minister, personally, to revoke the cancellation of a visa pursuant to s 501CA(4): Marzano [48].

34    The applicant’s first ground cannot succeed.

Ground Two

35    The applicant contends that the Decision is affected by jurisdictional error in that the Minister failed to consider, in the relevant legal sense, evidence that the applicant “is a citizen of Zambia as compared with being ‘eligible to citizenship of the United Kingdom’”.

The non-satisfaction of the subjective jurisdictional fact in s 501CA(4)(b)

36    At the outset, it is important to understand the scope of the statutory task that was being performed by the Minister. In the letter of 27 February 2020 to the applicant, it was said that “the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the original decision”. That statement of the Minister’s purported exercise of power is wholly inconsistent with paragraph [80] of the Minister’s Reasons, set out above, in which he states that his power in s 501CA(4) is not enlivened. The Minister identified that the applicant had made representations to him as to why the cancellation decision should be revoked, such that sub-s (4)(a) was satisfied. The Minister was, however, not satisfied of either of the matters in sub-s (4)(b). Thus, he concluded that the facts on which his power in s 501CA(4) to revoke the cancellation decision was conditioned did not exist. As a result, the applicant’s Visa remained cancelled.

37    In Ali v Minister for Home Affairs [2020] FCAFC 109, the Full Court has recently explained that the matters in subs 4(b)(i) and (ii) are subjective jurisdictional facts. The consequence of the legislative structure of s 501CA was held to be, at [44]:

… in the case of s 501CA(4) the incorporation of a substantive deliberative process has the consequence that the process of forming the relevant state of mind incorporates certain implied statutory requirements. Prima facie, the function of forming a state of mind for the purposes of s 501CA(4)(b) is unconfined. However, s 501CA(3) requires the giving of notices and information to the affected person as well as the making of an invitation to make representations about the revocation decision. Section 501CA(4) may only ever become operative if, in accordance with subs (a), the person affected makes representations in accordance with that invitation. Although it is not expressly stated in subs (b) that relevant factors that the Minister must consider in forming his state of satisfaction or otherwise are the claims made in the representations, that conclusion is a necessary inference. The principles of interpretation or construction which are used to identify those factors which the person forming the state of mind is required to consider are not dissimilar to those found in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30, concerning the identification of relevant or irrelevant considerations for the exercise of discretions: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 270 [54]; Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073 at [184] – [187]. If “by implication from the subject-matter, scope and purpose of the Act” the repository of power is required to consider a factor in forming the required state of mind, any putative state of mind formed without considering it would be vitiated.

38    Thus, the question for a court on review is not whether the matters in sub-ss 4(b)(i) and (ii) existed, but whether the Minister was satisfied that either existed: Ali at [41].

39    In the Minister’s Reasons, he recorded that he was not satisfied that the applicant passed the character test, nor was he satisfied that there was “another reason why the original decision should be revoked”. The consequence was that the power in the chapeau, which was conditioned on the satisfaction of the jurisdictional facts in sub-s (a) and (b), was not enlivened.

40    The question raised by Ground Two is whether, putting aside the purported decision not to revoke, the Decision was infected with jurisdictional error because that state of satisfaction, being a precondition to the exercise of the power, was irrational, illogical and not based on findings or inferences supported by logical grounds, or if the decision to which the decision maker came was simply not open on the evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, per Crennan and Bell JJ at [135].

41    As was observed by the Full Court in Ali, although the existence of a subjective state of mind is not beyond review by the Court, the grounds upon which it may be “reviewed” are limited: MacCormick v Federal Commissioner of Taxation (1945) 71 CLR 283; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; Buck v Bavone (1976) 135 CLR 110 at 118–119; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [38]; SZMDS at [39]-[40], [96]; EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94.

42    In Avon Downs, at 360, Dixon J said, in relation to the range of errors which might vitiate a claimed state of mind:

If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

43    A failure to properly take into account or have regard to a claim raised by the person in his or her representations will necessarily have the consequence that one of the Avon Downs errors has occurred, such that if the error was material, the putative state of mind formed by the Minister will be vitiated: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [72]; Ali at [49].

44    The applicant contends that his Zambian citizenship was a matter of “significance” which was before the Minister and which was not evaluated by the Minister (AS [38]).

The representations

45    The central role in the statutory regime of representations made to the Minister in accordance with an invitation given by the Minister under s 501CA(3) has been explained in a number of decisions: GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 at [31(c)]; Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [34]; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643. In Maioha, Rares and Robertson JJ said, at [48]:

It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made.

46    It is therefore necessary to examine the scope of the representations put to the Minister in relation to the applicant’s citizenship. These representations were relatively sparse, but unequivocal in their assertion that the applicant held British citizenship on the basis of his birth in North Rhodesia, prior to its independence.

47    In his representations of 27 June 2007, made in response to the Notice of Intention to Consider Cancellation of a Visa under s 501(2) dated 19 June 2007, the applicant stated, “We were born in British Protectorate Nth Rhodesia and left there before it became Zambia and independent in 1964. We migrated here from England in 1965 via Western Australia”.

48    As far as this present application is concerned, in his Request for Revocation of a Mandatory Visa Cancellation under s 501(3A) dated 10 February 2019, the applicant states that his country of citizenship is Britain.

49    The applicant completed a “Personal Circumstances Form” on 10 February 2019. In it, the applicant states that his place of birth is “North Rhodesia/British Protectorate” and his current citizenship is “British”. He indicates that the citizenship of both parents at birth was British.

50    Question 13 of that Form asked, “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?” The applicant responded “Yes” and described his concerns as, “Only the unknown being 60 yrs old and been in Australia all my life”. This answer can only be construed as responsive to the possibility of his return to Britain given his earlier statement that his current citizenship is British.

51    In addition to the representations of the applicant, there were other documents before the Minister relevant to the applicant’s citizenship.

52    As is usual, the Minister’s Reasons were given against the background of a draft set of reasons prepared by the National Character Consideration Centre (NCCC) within the Department. The Minister received a Submission from the NCCC on 14 January 2020 which was said to include a Decision Page (Attachment 1), a Table of Attachments (Attachment 2), Statement of Reasons (Attachment 3) and Evidence and material for Mr Broadbent (Attachment 4).

53    The Submission states:

Mr BROADBENT, a 61 year old (born in North Rhodesia/British Protectorate (now Zambia)), is eligible for citizenship of the United Kingdom.

54    Attachment F1 to the Minister’s Reasons is “Mr Broadbent’s Incoming Passenger Card”. That document, dated 5 October 1965 (completed when the applicant was 7 years old, presumably by an adult on his behalf) states his nationality as British (without specifying the country of citizenship as required by the document), his country of birth as Rhodesia, and provides a Passport or Transit Document number. It also appears to indicate that the applicant had lived in England for at least 12 months prior to arriving in Australia but gives no indication of when the applicant arrived in England from North Rhodesia.

55    Attachment A to the Minister’s Reasons comprised an ACIC Criminal History Check Results Report, produced on 19 June 2019, which records the applicant’s birth place as Zambia.

56    Further, Attachment S2 to the Minister’s Reasons comprised an email from the Immigration Integrity and Community Protection Division within the Department to the NCCC, the subject line of which read “Mr BROADBENT Francis Charles – 21/05/1958 [file number] – Zambia”. The email was in respect of the applicant’s request for an extension of time in which to submit his response to an invitation, dated 28 June 2019, to comment on further information because of his eye surgery.

57    Despite the various references to the applicant’s place of birth, there was no representation made that the applicant is, or even might be, a citizen of Zambia. Nowhere in the representations is there a clearly articulated claim by the applicant that his visa cancellation should not be revoked because his citizenship status is unclear.

58    In this context, it is important to heed the warning given by Flick, Griffiths and Moshinsky JJ in AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56]:

Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

The Minister’s Reasons

59    The Minister’s Reasons do not include paragraph [1] of the Submission which stated that the applicant “is eligible for citizenship of the United Kingdom”. It is not clear what was intended to be conveyed by the phrase in the context of the applicant’s circumstances and speculation is unhelpful. However, nothing that had been put before the Minister by the applicant suggested anything other than that he was a British citizen.

60    The Minister’s Reasons make no explicit finding about the applicant’s citizenship status. It is, however, implicit in those Reasons that the Minister accepted the applicant’s representations that he was a British citizen. At [12] the Minister records that, in the representations and documents submitted by or on his behalf, the applicant has articulated reasons why the original decision should be revoked, which include “the hardship he would suffer upon his removal to the United Kingdom, where he has never resided”.

61    I interpolate that, in fact, the applicant did reside in the United Kingdom for a brief period, perhaps a year, before migrating to Australia in 1965. He has not left Australia since. I do not consider that a fair reading of the Minister’s Reasons, without an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259), reveals this error, which is favourable to the applicant, to be of any consequence. It was consistent with the answer the applicant gave to Question 13 on the Personal Circumstances Form referred to above. The applicant made no submission to the contrary.

62    Further, it is implicit in the Minister’s finding in relation to the hardship that the applicant would likely face if removed from Australia that the Minister has found that the applicant is a citizen of the United Kingdom:

15.    I note that Australia and the United Kingdom are linguistically and culturally similar. Notwithstanding this, given that Mr BROADBENT is now 61 years of age, I accept that Mr BROADBENT will face significant hardship if removed from Australia to his home country, the United Kingdom in establishing himself and maintaining basic living standards.

63    The applicant contended that the statement in the Submission that the applicant was “eligible to citizenship of the United Kingdom” should have raised doubt in the Minister’s mind as to the applicant’s citizenship.

64    Further, it was submitted that the Minister “entirely ignored the legal consequences of Mr Broadbent being born in Zambia” (AS [37]). This was legally significant, it was contended, because the decision as to where the applicant will be removed will be made by an officer, not the Minister, exercising power under s 198(5) of the Migration Act. The place will be determined on the basis of the practicability of his removal there at the relevant time.

65    The applicant did not contend that he was not a citizen of the United Kingdom. The applicant did, however, submit that, as a matter of Australian law (on the presumption that foreign law is the same as Australian law: Nielson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 at [125]), the applicant is a citizen of Zambia, and that the Minister should have considered the consequences of the applicant’s Zambian citizenship. It was submitted that “It is inherently unlikely that, post-Brexit and mid-pandemic, the UK will embrace a convicted criminal who is not yet a citizen of the UK but is a citizen of Zambia” (AS [34]).

66    The applicant submitted that, in failing to consider the consequences of his Zambian citizenship, the Minister’s error amounted to a failure to, “determine where the appellant would be sent; second, to evaluate the information available to him about the circumstances in that place of return; and third, to determine what, as a matter of fact, those circumstances meant for the appellant on his return”, as discussed by the Full Court in DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [81].

67    As has already been observed, no representation, nor any evidence, was before the Minister that the applicant was a citizen of Zambia. There was no attempt to prove the law of Zambia, which must be proved as a fact: Neilson at [119]; Australian Competition and Consumer Commission v PT Garuda (No 9) [2013] FCA 323; 212 FCR 406 at [51]; Noza Holdings Pty Ltd (ACN 098 410 881) v Commissioner of Taxation [2010] FCA 990; (2010) 273 ALR 621 at [13]. No representations were made as to whether, under Zambian law, the applicant was entitled to citizenship, nor as to whether, as a matter of Australian law, the applicant is a citizen of Zambia. The question of applicant’s Zambian citizenship was not, therefore, a matter which required the Minister’s consideration in reaching his Decision. It is neither appropriate nor necessary for this Court to consider, as a matter of fact or law, whether the applicant is a citizen of Zambia. It is therefore unnecessary to rule on whether the Constitution of Zambia should be admitted into evidence, whether under s 174 of the Evidence Act 1995 (Cth) or otherwise.

68    Further, unlike the circumstances in DQM18, there were no conflicting representations made by, or on behalf of, the applicant as to whether the country to which the applicant would be removed might be the United Kingdom or Zambia. The Minister’s Reasons are entirely unequivocal throughout in finding that the country to which the applicant would be returned is the United Kingdom.

69    In my view, the Minister did not err by failing to consider evidence that he is “is a citizen of Zambia as compared with being ‘eligible to citizenship of the United Kingdom’”. There was no evidence before the Minister that the applicant was a citizen of Zambia and no representation was ever put to the Minister that, as a matter of law, the fact of the applicant’s birth in North Rhodesia prior to that country’s independence accorded him Zambian citizenship. Accordingly, the Minister’s state of satisfaction, or non-satisfaction, was formed on the basis of factual findings that were open to be made on the evidentiary materials before him and he did not fail to comply with a condition affecting the exercise of power.

Matter arising after hearing

70    Both parties were given leave to file further submissions on the issue of the futility of the relief sought by the applicant which had been raised for the first time in the course of the hearing. On 23 October 2020, the applicant provided the Court with further submissions on that issue.

71    Those submissions brought to the Court’s attention a complaint by the applicant that he had been prevented by officers of the Minister from attending the hearing of this matter by refusing him entry to the video conference facility in the immigration detention centre. That complaint was brought to the attention of the applicant’s counsel after the hearing.

72    No indication was given to the Court before or at the commencement of the hearing that the applicant wished to observe or participate in the hearing, either through the remote access technology being used for the hearing or by telephone. It appears that neither counsel had observed on the video conference platform, through which the hearing was conducted, that their client had not joined the hearing.

73    The applicant submitted that the refusal was in breach of the express statutory obligation under s 256 of the Migration Act and a breach of the Minister’s obligations as a model litigant.

74    Section 256 provides:

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

75    The Minister objected to that portion of the applicant’s submissions that was outside the grant of leave. Nevertheless, the parties were given the opportunity to file further submissions in relation to the issue, which they have done. Affidavits were also filed, on behalf of the Minister on 28 October 2020 and by the applicant on 5 November 2020. I accept that the applicant has found it difficult to formally swear his affidavit whilst in detention and accept his counsels’ assurance that arrangements have been made for a solicitor to attend on the applicant and that the sworn affidavit will be filed on 13 November 2020.

76    An affidavit of Melinda Anne Jackson, Australian Government Solicitor (AGS) lawyer, was filed on behalf of the Minister (MAJ). Ms Jackson deposed, inter alia, that:

    AGS was not informed at any point prior to the hearing that the applicant wished to observe the hearing, including by using the audio-video facilities at Villawood Immigration Detention Centre (MAJ [17]);

    in a series of email exchanges between herself and Mr Albert and Ms Zhou of counsel, both of whom represented the applicant in this matter, none raised any matter to do with the applicant’s detention location, facilities available for him to appear, or his participation in the hearing (MAJ [18]).

77    None of this evidence was contradicted by the applicant.

78    Ms Jackson deposed further to information that she had obtained from her instructor at the Department relating to the limited extent of the video conferencing facilities in the detention centre and for the need for bookings to be made in advance of the hearing (MAJ [21]-[22]). She deposed that she was advised by her instructor at the Department that Australian Border Force was not aware of any upcoming court appearances involving the applicant and, accordingly, no audio-visual facilities had been booked (MAJ [23]).

79    The applicant disputes this aspect of Ms Jackson’s affidavit and deposes to having arrived at the centre which houses the video link and being told by an officer “there is no reason for you to be in this area. You have no video link booked” (FB [4]). He deposes further to having invited the officer to view his facility booking which he had with him (FB [5]) but was told again that he had no booking (FB [6]).

80    For present purposes, I am prepared to accept that the applicant had, or at least had attempted, to book the video conferencing facilities for the purpose of attending the hearing of his application on 19 October 2020 and was prevented from so doing.

81    It is trite to recall that a decision involving the cancellation of a visa has direct personal consequences for the person concerned and it is not unreasonable to suppose that such a person would be concerned about the proceedings in which that decision is reviewed and would want to be present to understand the way a Court is dealing his or her case. As Chief Justice Allsop observed in Moana v Minister for Immigration and Border Protection [2019] FCA 659; (2019) 265 FCR 337 at [44]:

What must be remembered by all who work in the Department, however, is the seriousness (for them personally) of the possible contempt of the Court by removal from Australia of an applicant in circumstances where the engagement of the protective judicial power of the Commonwealth that has occurred is undermined and stultified by a lack of full and reasonable opportunity to engage the Court. What is a full and reasonable opportunity is not susceptible to rules and simple (or complex) bureaucratic procedures. It will depend on the person and his or her circumstances.

82    In the present case, however, whilst it would have been desirable for the applicant to have been afforded the opportunity to view the proceedings, in circumstances where the applicant was represented by counsel, it cannot reasonably be suggested that he has been denied a full and reasonable opportunity to engage the Court, nor that he has been denied reasonable facilities for taking legal proceedings within the meaning of s 256.

83    In those circumstances, it is not appropriate to make any order under s 256.

Disposition

84    It follows that the application is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the applicant pay the Minister’s costs. However, as the matter of costs was not the subject of submissions, if either party seeks a variation of the costs order, the party may give written notice to the Court and the other party within three business days.

Associate:

Dated:    12 November 2020