Federal Court of Australia

Vargas v Minister for Home Affairs [2021] FCA 276

ORDERS

THE COURT ORDERS THAT:

1.    The application filed 27 April 2020 is dismissed.

2.    The applicant is to pay the respondent’s costs 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 respondent (the Minister), has a discretion to set aside a decision of the Administrative Appeals Tribunal (the Tribunal) made under s 501CA, which decision revokes 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 12 February 2020. It had the effect of setting aside the earlier decision of the Tribunal and cancelling the partner visa held by Mr Mauricio Vargas, the applicant.

FACTUAL BACKGROUND

3    Mr Vargas is a citizen of the Republic of Colombia. He arrived in Australia in August 2012 and was granted a partner visa upon arrival.

4    On 6 June 2018, Mr Vargas was convicted in the District Court of Queensland on 10 counts of domestic violence against his former spouse and 20 counts of fraud. A head sentence of three years’ imprisonment, suspended for a period of five years after he had served 12 months, was imposed in respect of his domestic violence convictions.

5    On 6 August 2018, while he was serving that period of imprisonment, Mr Vargas’ partner visa was cancelled pursuant to s 501(3A) of the Act.

6    Mr Vargas sought revocation of that decision on 7 August 2018. That request was refused on 19 June 2019.

7    On 24 June 2019, Mr Vargas then sought a merits review of that refusal in the Tribunal. On 11 September 2019, the Tribunal set aside the 19 June 2019 decision and revoked the mandatory cancellation decision of 6 August 2018.

8    On 16 September 2019, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a request of the Department of Home Affairs to prepare a submission for him to consider exercising his power under s 501BA of the Act.

9    On 12 February 2020, the Minister set aside the Tribunal’s decision and cancelled Mr Vargas’ partner visa pursuant to s 501BA(2) of the Act.

GROUNDS OF REVIEW

10    Mr Vargas’ originating application sets out four grounds in respect of which he seeks review of the Minister’s decision. Together with their supporting particulars, they are as follows:

1.    The Minister’s refusal to afford [Mr Vargas] natural justice was unreasonable.

Particulars

The Minister’s decision to refuse to afford natural justice, in the process of, or leading up to, the exercise [of] his power in s 501BA(2) of the Migration Act 1958 (Cth), is not the subject of any evident and intelligible justification that is express nor can be reasonably inferred.

2.    The Minister’s finding that [Mr Vargas] ‘is a threat to all women’ is a finding that is illogical, irrational or unreasonable because it was one that was not open on the evidence, and/or one for which there was no rationally probative evidence, and/or one reached on an assessment of only some of the evidence and submissions available to him.

Particulars

(a)    [Mr Vargas] had only committed offences against one woman (his ex-partner) and there was no evidence that [Mr Vargas] had ever threatened any other woman at any time in his life. The only forensic expert opinion before the Minister as to [Mr Vargas’] risk of re-offending was that it was in the ‘low category’.

(b)    The Tribunal found, on the basis of submissions and evidence (including inferences drawn as to [Mr Vargas’] genuineness from his oral evidence), being submissions and evidence available to the Minister but not considered by him, that [Mr Vargas] ‘presents with a genuinely low risk of reoffending, both in a domestic violence context and more generally’.

3.    The Minister failed to apply any active intellectual process to the matters that were set out at [45]-[68] of his reasons.

Particulars

The reasons disclose that the matters at [45]-[68] were only ‘noted’, ‘acknowledged’, asserted to have been given ‘consideration’ or were ‘taken into account’ or were the subject of ‘regard’, none of which constituted any active intellectual process.

4.    The Minister failed to take into account the mandatory relevant considerations of the evidence and submissions before the Tribunal in making its anterior decision.

Particulars

The evidence and submissions before the Tribunal were mandatory relevant considerations in the Minister’s decision whether to exercise his power in s 501BA(2). The Minister only considered the Tribunal’s reasons, and not the evidence and submissions before it.

THE MINISTER’S DECISION

11    The reasons the Minister provided for his decision are relevantly divided into four sections:

(a)    Introduction (at [1]-[11]);

(b)    Satisfaction with respect to the two conditions in 501BA(2) (at [12]-[71]);

(c)    Factors affecting the exercise of discretion (at [72]-[105]); and

(d)    Conclusion (at [106]-[114]).

12    The paragraphs dealing with the natural justice issue raised by ground of review 1 were contained in the first section above as follows (at [9]-[11]):

9.    Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). While this means that I am not required to apply the rules of natural justice when making a decision under s501BA(2), by giving the affected person an opportunity to be heard before making the decision, I am aware that s501BA(3) does not prohibit me from affording such an opportunity.

10.    In this case, I chose to proceed without giving Mr MENDIETA VARGAS an opportunity to be heard before making my decision. I am cognisant that as a consequence, Mr MENDIETA VARGAS 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. In this instance Mr MENDIETA VARGAS’ family includes his two minor children, his mother and younger brother.

11.    I have, however, given consideration to representations made by Mr MENDIETA VARGAS in relation to the original decision and in the AAT proceedings, which resulted in the AAT revoking the decision to cancel Mr MENDIETA VARGAS’ visa.

13    The second section was divided into two subsections, each addressing one of the conditions in s 501BA(2): the “CHARACTER TEST” (at [12]-[16]); and the “NATIONAL INTEREST” (at [17]-[71]). The latter was divided into three sub-subsections: “Criminal Conduct” (at [23]-[43]); “Risk to the Australian Community” (at [44]-[70]); and “Conclusion” (at [71]).

14    The so-called “threat to all women” finding the subject of ground of review 2 appears in the latter subsection as follows (at [61]):

I note with concern the AAT’s conclusion that ‘simply because [Mr Vargas] has offended – albeit seriously and potentially catastrophically – against this particular victim/woman, does not mean he is a threat to all women’.

(Emphasis in original)

15    The paragraphs to which ground of review 3 relate ([45]-[68]) are also contained in the latter subsection and in the sub-subsection of it addressing the “Risk to the Australian community”. Those paragraphs essentially fall into two groups. That is, matters which operated in favour of Mr Vargas (at [46]-[66]) and matters which were adverse to him (at [67]-[68]).

16    First, [44]-[45] contained introductory comments to that sub-subsection as follows:

44.    I have also had regard to whether Mr MENDIETA VARGAS poses a risk to the Australian community through committing further criminal offences, recognising that such a consideration may assist in founding a satisfaction that it is in the national interest to cancel his visa.

45.    In considering Mr MENDIETA VARGAS’ risk of reoffending, I have noted causal or mitigating factors in relation to his criminal offending. I have also considered his previous efforts and opportunities for rehabilitation.

17    The succeeding paragraphs up to [66] then set out the favourable matters which the Minister stated he had “taken into account”, “given consideration to” or “taken into consideration”, “had regard to”, “acknowledge[d]” or “noted”. They included:

(a)    the stress Mr Vargas was experiencing at the time of his offending (at [46]-[48]);

(b)    Mr Vargas’ view that he would not re-offend (at [49]);

(c)    Mr Vargas’ expressions of remorse (at [50]);

(d)    Mr Vargas’ positive conduct while in immigration detention (at [56]);

(e)    the rehabilitation programs Mr Vargas undertook while he was in prison (at [62]) and the Relapse Prevention Plan he participated in (at [63]).

(f)    Mr Vargas’ “acceptable” behaviour while in prison in Queensland (at [65]); and

(g)    finally, the letters of support that had been submitted by members of Mr Vargas’ family and friends (at [66]).

18    Those paragraphs also included comments the Minister made on two other aspects:

(a)    the Minister’s comments on various aspects of Associate Professor James Freeman’s assessment of Mr Vargas (at [51]-[55]); and

(b)    the Minister’s notes or comments on various aspects of the Tribunal’s decision (at [57]-[61]).

I interpose to note that the last of these paragraphs has been set out at [14] above and is the focus of ground of review 2.

19    There were four paragraphs that were unfavourable to Mr Vargas’ application. Since they are relatively short, it is convenient to set them out in full. They are (at [67]-[70]):

67.    I have taken into account Mr MENDIETA VARGAS’s history of criminal offending and find that his criminal conduct also includes a disregard for judicial orders as demonstrated by his failure to comply with domestic violence orders.

68.    I have had regard to Mr MENDIETA VARGAS’ account of his offending as outlined in the psychological report, and note with concern his tendency to downplay the seriousness of his violent behaviour against his former partner, and this demonstrates a lack of insight into his criminal conduct. Accordingly, I am not convinced that Mr MENDIETA VARGAS has fully recognised his past behaviours that led to his convictions, and this poorly reflects on his prospects of rehabilitation.

69.    Notwithstanding the psychological assessment by Professor Freeman and the rehabilitative steps taken by Mr MENDIETA VARGAS, in light of his past offending which involved persistent offending in the realm of domestic violence against his former partner, and given his limited insight in the offending, I find that there is an ongoing risk he will reoffend.

70.    If Mr MENDIETA VARGAS did engage in further criminal conduct of a similar nature, that is, offences of a violent nature such as Common assault or Assault occasionally bodily harm, it could result in conduct that could cause psychological and/or physical harm to a member of the Australian community.

(Emphasis in original)

20    The conclusion on the “NATIONAL INTEREST” condition in s 501BA(2) was as follows (at [71]):

71.    In summary, having regard to the above, including the nature and seriousness of his criminal history 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 MENDIETA VARGAS’ visa.

21    In the “DISCRETION” section of his reasons, the Minister considered the following matters: the “Best interests of [Mr Vargas’] minor children” (at [73]-[84]), the “Expectations of the Australian community” with respect to Mr Vargas (at [85]-[90]), “The strength, nature and duration of [Mr Vargas’] ties to Australia” (at [91]-[98]) and the “Extent of impediments [Mr Vargas would suffer] if removed” from Australia (at [99]-[105]).

22    The Minister summarised the conclusions he had reached on the question of his discretion as follows (at [106]-[114]):

106.    I am satisfied that Mr MENDIETA VARGAS does not pass the character [test] because of the operation of, in this case, section 501(6)(a) with reference to s501(7)(c) of the Act. Further, I am satisfied that it is in the national interest to cancel Mr MENDIETA VARGAS’s visa.

107.    In considering whether or not to cancel Mr MENDIETA VARGAS’s visa, I gave primary consideration to the best interests of Mr MENDIETA VARGAS’s children and have found that their best interests would be best served by not cancelling the visa.

108.    I also considered the risk posed to the Australian community by Mr MENDIETA VARGAS’ continued presence in Australia, taking into account that he has committed a number of offences in Australia including those involving violence, for which he has received court dispositions including a head sentence of three years imprisonment.

109.    Mr MENDIETA VARGAS has committed serious crimes, such as Common assault or Assault occasioning bodily harm, causing physical harm including mental anguish to his victim. Non-citizens such as Mr MENDIETA VARGAS who commit such offences should not generally expect to be permitted to remain in Australia.

110.    I find that the Australian community could be exposed to further harm should Mr MENDIETA VARGAS 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 MENDIETA VARGAS. The Australian community should not tolerate any risk of further harm.

111.    On the other hand I have also considered the best interests of the affected children treated as a primary consideration, and his claims that he will suffer hardship if returned to Colombia, impact on family members in particular his Australian citizen mother and brother. I have also considered the length of time Mr MENDIETA VARGAS has made a positive contribution to the Australian community and hardship to be endured by his family, in particular his children and other family members. I have also considered the impediments he will face upon return to his home country, noting that his family and support network is located in Australia.

112.    I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa.

113.    In reaching my decision I consider that Mr MENDIETA VARGAS represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

114.    I find that the considerations favouring non-cancellation in particular the best interests of the affected children treated as a primary consideration, and Mr MENDIETA VARGAS’s ties to Australia and the hardship to him and his family members, are outweighed by the national interest considerations referred to above and I have decided to exercise my power under s501BA of the Act to set aside the original decision of the Administrative Appeals Tribunal of 11 September 2019 and to cancel Mr MENDIETA VARGAS’s Class BC Subclass 100 (Partner) visa.

THE TRIBUNAL’S DECISION

23    The Tribunal’s decision is quite lengthy. It extends over 70 pages and includes 185 paragraphs. Its structure broadly follows Direction 79, which is entitled “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA(4)”. The contents of that Direction are discussed in the introductory paragraphs of the Tribunal’s decision (at [17]-[23]). Thereafter, the Tribunal considered three “Primary Considerations” and a set of “Other Considerations” as follows:

(a)    A – Protection of the Australian Community (at [24]-[109]);

(b)    B – The Best Interests of Minor Children in Australia (at [110]-[138]);

(c)    C – The Expectations of the Australian Community (at [139]-[157]); and

(d)    Other Considerations (at [158]-[181]).

24    Along the way, the Tribunal came to conclusions as to whether the consideration in question weighed in favour of, or against, non-revocation of Mr Vargas’ visa. The conclusions reached in respect of each of the four considerations listed above were as follows:

(a)    A – Protection of the Australian Community (at [108]-[109]):

108.    I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of [Mr Vargas’] offending conduct to date is very serious and (2) there is a genuinely low likelihood that he will again engage in further very serious conduct if returned to the Australian community.

109.    Were he to re-offend, the harm that would be occasioned to others would, as it has been thus far, be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs to a moderate but not a determinative extent, in favour of non-revocation.

(b)    B – The Best Interests of Minor Children in Australia (at [138]):

138.    Having regard to:

(a)    [Mr Vargas’] evidence and, particularly, the evidence of his mother about her successful re-establishment of lines of communication with the former spouse/mother of the children;

(b)    the reality that given the very young age of the twin children, any future parental role to be played by [Mr Vargas] can only realistically occur if he is returned to their lives (in a physical sense). The successful establishment and propagation of a purely electronic or telephonic parental relationship in the context of this case is, in my view, quite unlikely;

(c)    [Mr Vargas’] genuinely resolved intention to strictly follow appropriate family law channels to re-establish and define his parental relationship with the children;

(d)    the appreciable level of weight I have attributed to factors (a), (c), and (d) of paragraph 13.2(4) of the Direction;

(e)    the significant level of weight I have attributed to factor (b) of paragraph 13.2(4) of the Direction;

(f)    the moderate level of weight I have attributed to factor (e) of paragraph 13.2(4) of the Direction; and

(g)    the [Minister’s] abovementioned concession that, subject to minimisation or removal of the abovementioned “core” or “hot button” issue, it may be in the best interests of [Mr Vargas’] minor children for the Original Decision to be revoked:

- I am of the view that the best interests of [Mr Vargas’] two minor children in Australia does weigh in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is a strong level of weight and outweighs the weight I have attributed to Primary Consideration A.

(Emphasis in original)

(c)    C – The Expectations of the Australian Community (at [157]):

157.     I therefore find that while the Australian community might consider [Mr Vargas], via his offending, has, to an extent, breached the trust they have placed in him to obey Australian laws while in Australia, the Australian community would nevertheless expect this Tribunal to not endorse a finding supportive of [Mr Vargas’] removal from Australia. I accordingly find that this Primary Consideration C is of neutral weight on the question of non-revocation.

(d)    Other Considerations (at [180]-[181]):

180.    I therefore find that this Other Consideration (e) weighs moderately in favour of non-revocation.

Conclusion: Other Considerations

181.    The weight attributable to these Other Considerations can be summarised as follows:

•    International non-refoulement obligations: not relevant.

•    Strength nature and duration of ties: is of strong weight in favour of revocation.

•    Impact on Australian business interests: not relevant.

•    Impact on victims: not relevant.

•    Extent of impediments if removed: weighs moderately in favour of non-revocation.

(Emphasis in original)

25    The Tribunal’s ultimate conclusions were contained in the final four paragraphs of its decision as follows (at [182]-[185]):

182.    Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke [Mr Vargas’] visa: either [Mr Vargas] passes the character test or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, [Mr Vargas] does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I find there is another reason for me to revoke the cancellation of [Mr Vargas’] visa.

183.    In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. With regard to the weight allocable to each of these Primary and Other Considerations, I find as follows:

•    Primary Consideration A weighs moderately, but not determinatively, in favour of non-revocation;

•    Primary Consideration B weighs strongly in favour of revocation and outweighs the weight I have allocated to Primary Consideration A;

•    Primary Consideration C is of neutral weight;

•    Other Considerations (a), (c) and (d) are of either neutral weight or no relevance to this consideration;

•    the combined weight of Primary Consideration B and Other Consideration (b) favouring revocation outweigh the combined weight of the remaining Primary Consideration A and Other Consideration (e) which favour of non-revocation;

•    a holistic application of the considerations in the Direction to the evidence therefore favours exercise of the discretion to revoke the mandatory cancellation of [Mr Vargas’] visa.

184.    Consequently, I find that there is another reason to revoke the original decision to cancel [Mr Vargas’] visa.

DECISION

185.    The decision under review is set aside and substituted such that the discretion in s 501CA(4)(b)(ii) of [the] Migration Act 1958 (Cth) to revoke the mandatory cancellation of [Mr Vargas’] visa be exercised.

26    As noted already, the Minister’s reasons referred to, and commented on, a number of passages from the Tribunal’s decision. The passages of the decision that attracted comments from the Minister in his reasons, relevant to the present application, and the issues to which they relate, were as follows:

(a)    at [30]-[39] of the Minister’s decision:

Consideration of Mr Vargas’ criminal conduct as a part of the Minister’s satisfaction regarding condition 1 – the character test.

These passages appear at [29]-[45] in the section of the Tribunal’s decision entitled: “Primary Consideration A – Protection of the Australian Community”; under the sub-heading: “The Nature and Seriousness of [Mr Vargas’] Conduct to Date”.

(b)    at [57]-[61] of the Minister’s decision:

Consideration of the risk Mr Vargas poses to the community as a part of the Minister’s satisfaction regarding condition 2 – the national interest.

These passages appear at [95]-[107] in the section of the Tribunal’s decision entitled: “Primary Consideration A – Protection of the Australian Community”; under the sub-headings: “The nature of the harm to individuals of the Australian community were [Mr Vargas] to engage in further criminal or other serious conduct” and “The likelihood of the non-citizen engaging in further criminal or other serious conduct”.

(c)    at [80]-[83] of the Minister’s decision:

Consideration of the “Best interests of minor children”, in the exercise of the Minister’s discretion.

These passages appear at [115]-[132] in the section of the Tribunal’s decision entitled: “Primary Consideration B: The Best Interests of Minor Children in Australia”.

(d)    at [88]-[89] of the Minister’s decision:

Consideration of the “Expectations of the Australian community”, in the exercise of the Minister’s discretion.

These passages appear at [155]-[156] in the section of the Tribunal’s decision entitled: “Primary Consideration C – The Expectations of the Australian Community”.

(e)    at [97] of the Minister’s decision:

Consideration of “The strength, nature and duration of ties to Australia”, in the exercise of the Minister’s discretion.

These passages appear at [168]-[172] in the section of the Tribunal’s decision entitled: “Other Considerations” under the sub heading: “Strength, nature and duration of ties”.

(f)    at [103]-[104] of the Minister’s decision:

Consideration of the “Extent of impediments if removed”, in the exercise of the Minister’s discretion.

These passages appear at [177]-[179] in the section of the Tribunal’s decision entitled: “Other Considerations” under the sub-heading: “Extent of impediments if removed”.

27    The particular parts of the Tribunal’s decision that are relevant to Mr Vargas’ present application are those described in (b) above. Those paragraphs are as follows:

(a)    Re [57]:

While not as visually apparent as the effects of physical violence, [Mr Vargas’] continued taunting and antagonising behaviour towards his former spouse about matters of deep seriousness to her, such as (1) the unexpected death of her brother in 2015, and (2) her history of being sexually abused as a child, can inflict just as significant harm, especially mental harm.

(e)    Re [58]:

… that any risk of repetition of such conduct by [Mr Vargas] upon any other member of the Australian community is simply unacceptable. Were he to re-offend, the resulting harm would be very serious and could conceivably involve the occasioning of very serious physical and mental harm, and even catastrophic harm.

(f)    Re [59]:

… there are no discernible psychopathic elements to [Mr Vargas’] overall psychological symptomatology, which can be identified as specific causative factors behind both his past offending and any future offending. It is clear that [Mr Vargas] was overcome by the responsibility and exigencies of (1) relatively sudden parenthood; (2) at a very young age (both for him and his former spouse); (3) the terminal rupture of his relationship with his former spouse; and (4) the frustrations and difficulties he will no doubt have experienced arising from a denial of his right to spend time with his two very young twin daughters.

(g)    Re [60]:

… [Mr Vargas] presents with a genuinely low risk of re-offending, both in a domestic violence context and more generally. I am satisfied that [Mr Vargas] has realised and accepted that (1) the relationship with his former spouse is at an end, and (2) his understandable fatherly compulsion to spend time with his two infant children is a matter that can only be addressed and resolved via the appropriate family law process giving rise to either a mutually agreed parenting plan and/or formal orders, be they by consent or as determined by the Federal Circuit Court.

(h)    Re [61] ([106] quoted in part – the full paragraph is as follows):

This is not an Applicant who presents before this Tribunal with a lengthy litany of offending. Putting aside his relatively minor fraud/stealing offending, his serious offending was isolated to a given four-five month period involving the one victim arising from the circumstances of one domestic relationship. Thus it cannot be said that [Mr Vargas] has been isolated in a cocoon of repetitive offending, as is often observed, for example, with offenders having a predisposition towards offending in the realm of illicit drugs and the additional, often violently unlawful conduct spawned by such offending. Likewise, simply because [Mr Vargas] has offended – albeit seriously and potentially catastrophically so – against this particular victim/woman, does not mean he is a threat to all women.

1.    THE ALLEGED FAILURE TO AFFORD NATURAL JUSTICE

The legislative provision and relevant principles

28    This ground concerns s 501BA of the Act. It relevantly provides:

…

(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).

29    In Ibrahim v Minister for Home Affairs (2019) 270 FCR 12; [2019] FCAFC 89 (Ibrahim) at [23] and [26], the Full Court held that, while s 501BA(3) above removed the obligation to provide natural justice, it did not prohibit such being provided.

The contentions

30    Mr Vargas contended that the Minister had a “choice” whether to afford or deny natural justice in the course of making his substantive decision and he contended that “choice” had to be exercised reasonably. In his case, he claimed that the Minister had not made that choice reasonably for several reasons. First, he contended that the Minister’s statement at [11] of his reasons, that he had taken account of the representations Mr Vargas had made originally and before the Tribunal, failed to have regard to the fact that the “national interest” was not a criterion before either the delegate, or the Tribunal. Secondly, since the Minister’s decision was not made until five months later, he contended that it was not attended by any requirement to act urgently such as might justify a denial of natural justice. Similarly, he contended that the nature of his offending did not justify a denial of natural justice. In this respect, he sought to contrast his offending with that of the principal member of a drug syndicate where the need to “act with haste and cancel without prior notice, because of the obvious concern that in the meantime the principal might seek to communicate with others in the syndicate and continue nefarious activity”, may have justified the Minister denying him natural justice. In oral submissions, Mr Vargas also raised a further reason, namely that the Standard Operating Procedure policy required all domestic violence cases to be referred to the Minister and did not contain any reference to the choice the Minister had whether to afford natural justice.

31    The Minister raised several arguments in response to Mr Vargas’ contentions. First, he submitted that the anterior choice he had made as to whether to afford natural justice to Mr Vargas did not involve the exercise of any statutory power and it could not therefore be reviewed on the ground of legal unreasonableness. Secondly, he contended that his “choice” not to afford natural justice to Mr Vargas was a migration decision and that this ground is incompetent because this Court’s jurisdiction in respect of such a decision is constrained by s 476A(1) of the Act. Thirdly, in the alternative to the foregoing, he contended that Mr Vargas has not established that he was legally unreasonable in making his decision. In this respect he claimed that his reasons showed that he properly understood that he had a choice whether to afford natural justice and decided not to do so. Fourthly, and in any event, he contended that an unreasonable failure to afford natural justice “cannot amount to a contravention of an express or implied condition on the valid exercise of the power in s 501BA(2) in circumstances where natural justice is not required to be afforded to the person in the first place”. Finally he contended that Ibrahim was distinguishable because that decision concerned the question whether s 501BA(3) operated to “preclude” (emphasis in original) natural justice whereas here, as his reasons indicate, he properly understood that he had a choice whether to afford it.

Consideration and disposition

32    Section 501BA(3) clearly provides that the Minister was not required to afford Mr Vargas natural justice. Nonetheless, as already mentioned, the Full Court judgment in Ibrahim demonstrates that that subsection of the Act does not preclude the Minister from providing natural justice to the person concerned if he wishes to do so. Paragraph [10] of the Minister’s reasons shows that he was well aware of the existence of this choice and that he made a deliberate decision not to exercise it in favour of affording Mr Vargas natural justice (see at [12] above).

33    This awareness on the Minister’s part distinguishes this matter from Ibrahim. That is so because the pivotal factor in that judgment was the Assistant Minister’s ignorance of this choice in the peculiar circumstances of that appeal (see, for example, Ibrahim at [37]-[38]). It was that misapprehension that founded the Court’s conclusion that the Assistant Minister had committed a jurisdictional error (see Ibrahim at [63]). For the reasons given earlier, that path to establishing a jurisdictional error is not open in this matter. Once that is set aside, the balance of Mr Vargas’ submissions involve a tortuous attempt (which seems to have attracted a similarly tortuous response) to impose indirectly the requirements of natural justice in the face of a clear legislative intention in s 501BA(3) that there is no obligation on the Minister to do so.

34    For these reasons, I do not consider this ground of review has merit.

2.    THE “IS A THREAT TO ALL WOMEN” FINDING – ALLEGEDLY ILLOGICAL, IRRATIONAL OR UNREASONABLE

The ground of review

35    This ground of review relates to the statement at [61] of the Minister’s decision (set out at [14] above). In that paragraph, the Minister was commenting on [106] of the Tribunal’s decision (set out at [27(e)] above).

The contentions

36    Mr Vargas contended that this statement was itself “a finding”, or was at least a part of the Minister’s reasoning “on the way” to his ultimate decision such that it was material to the outcome of the review. He contended that this reasoning was tendency reasoning of the kind rejected by Gageler and Nettle JJ in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [70]-[72] and [169], respectively. He also contended that it was “facile”, simplistic and tabloid in nature. As such, he contended, it was reasoning that: “was illogical and irrational and in an ‘extreme’ way”. And that: “No reasonable decision-maker making a weighty s 501BA decision would have reasoned” the same way.

37    Additionally, he contended that this reasoning was not open on the evidence. In support he claimed that the only forensic evidence before the Minister was that “it’s very unlikely that Mr Vargas is going to engage in any more impulsive behaviours where he threatens anybody, puts his hands on anybody”. As well, he claimed the Minister had made this finding, or adopted this reasoning, without having regard to the material that was available to him, including that filed by Mr Vargas in the Tribunal and the transcript of his evidence before it. Finally, he contended that this reasoning “along the way” to his ultimate decision was material in the sense described by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [89]-[95].

38    In response, the Minister claimed he did not make any finding at [61] and nor was it part of the reasoning he employed to reach his ultimate decision. Instead, he claimed he was expressing disagreement with the reasoning in that paragraph as he did with other paragraphs of the Tribunal’s decision, for example [39]. He claimed that his pertinent findings with respect to Mr Vargas’ risk of re-offending are set out at [67]-[70] of his reasons (see at [19] above). In those paragraphs, he claimed he made an assessment of, and findings on, that risk based on the nature of Mr Vargas’ past offending. He contended there was nothing irrational, illogical or unreasonable in those findings. Finally, he contended that Mr Vargas’ reliance on the tendency reasoning was misplaced.

Consideration and disposition

39    At [61], the Minister “note[d] with concern” the Tribunal’s statement at [106] of its reasons. He expressed that disagreement in the course of recording (from [57], set out at [27] above), several pertinent aspects of the Tribunal’s decision. Thereafter (from [62]-[70]) he recorded a series of matters, some of which tended to weigh in Mr Vargas’ favour and others which did not. In the former category: his participation in a number of “rehabilitative and vocational courses” including a Relapse Prevention Plan (at [62]-[63]); the “inconsistent information” in the Queensland Corrective Services (QCS) Notice Security Classification about the level of risk he poses to “himself, his victim, the community and his reoffending” (at [64]); his Offender Case File in which QCS assessed him as a person “who ‘does not pose a risk to others and the safety and security of the corrective services facility’” regarding his custodial behaviour and reported his institutional behaviour to be of “an acceptable standard” (at [65]) (emphasis in original); and the letters of support from his family and friends including the existence of a support network in Australia and Mr Vargas’ intention to return to his former employer (at [66]).

40    In the latter category: his history of criminal offending and his disregard for judicial orders relating to his non-compliance with domestic violence orders (at [67]); the psychological report which outlined his offending and his tendency to downplay the seriousness of his violent behaviour and his lack of insight into his criminal conduct which poorly reflected on his prospects of rehabilitation (at [68]); his persistent domestic violence offending and his limited insight into that offending leading to the finding that there “is an ongoing risk he will reoffend” (at [69]); and that, if he engaged in offences of a violent nature, it could result in conduct that “could cause psychological and/or physical harm to a member of the Australian community” (at [70]).

41    These paragraphs led to his conclusion at [71] that:

71.     In summary, having regard to the above, including the nature and seriousness of his criminal history 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 MENDIETA VARGAS' visa.

42    When all of these paragraphs are read in context, I agree with the Minister’s contentions that, on a fair reading of his reasons, he did not make a finding at [61] and nor was that “not[ing] with concern” a part of his reasoning process. That is to say, he was simply disagreeing with the Tribunal’s reasoning and not employing reasoning of his own beyond that “noting”. Instead, as he rightly pointed out, his relatively detailed reasoning process on the issue of Mr Vargas’ risk of re-offending is at [67]-[70] of his reasons. There is nothing irrational, illogical or unreasonable in those findings. Indeed, Mr Vargas does not appear to suggest there is.

43    For these reasons, this ground of review is also without merit.

3.    THE ALLEGED FAILURE TO APPLY ACTIVE INTELLECTUAL PROCESS

The ground of review

44    This ground of review focuses on [45]-[66] of the Minister’s decision. Mr Vargas claims that the “mere recitation” in those paragraphs of matters that were in his favour did not demonstrate an active intellectual process by the Minister with respect to them.

The contentions

45    Relying on a number of Full Court judgments, including Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 (Omar) at [36] and [43], Mr Vargas contended that: “There was no finding of fact ‘one way or the other’ in respect of any of [the matters in his favour], and no indication of ‘the necessary reflection’”. Further, that: “the bare assertions that the Minister had ‘noted’ the matters favourable to Mr Vargas contrasts with the Minister’s reasoning at other paragraphs in respect of evidence that was unfavourable, at which the Minister expressly explained the ‘view’ that he took, articulated what he thought the evidence before him meant, and expressly indicated his reasoning process”.

46    In response, the Minister contended that the judgment in Omar did not require him to make findings on each of the matters that he considered and that there was nothing to indicate that he had not duly come to his state of satisfaction about the “national interest”, that is, the second condition in s 501BA(2).

Consideration and disposition

47    This ground of review can be disposed of briefly. The paragraphs to which Mr Vargas has referred appear in that part of the Minister’s reasons where he formed his state of satisfaction that “the cancellation [of Mr Vargas’ visa] is in the national interest” (s 501BA(2)(b)). On that issue, Mr Vargas bears the onus to establish that the Minister did not, in fact, reach that state of satisfaction such that he could lawfully exercise the power under s 501BA(2)(b): 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. The paragraphs of the Minister’s reasons to which Mr Vargas has referred are not, in my view, remotely sufficient to discharge that onus.

4.    THE ALLEGED FAILURE TO TAKE ACCOUNT OF A MANDATORY RELEVANT CONSIDERATION

The ground of review

48    In this ground of review, Mr Vargas sought to add to the obligations the Minister was alleged to have under ground of review 3 above an obligation “to consider the submissions made and evidence given to the Tribunal”. He claimed that the Minister could not have considered that material because “the Court Book shows that [he] was not provided any of the material before the Tribunal, other than material that was put forward by Mr Vargas in the delegate stage and re-submitted to the Tribunal”.

The contentions

49    Mr Vargas sought to characterise the materials before the Tribunal as a “mandatory relevant consideration”, relying of the reasoning of Besanko J in Minister for Home Affairs v Brown (2020) 275 FCR 188; [2020] FCAFC 21 (Brown) at [120]-[136], particularly at [129] where his Honour said: “ … a prior decision not to cancel a visa where the same factual matters activate the conditions in s 501(2) [is] a mandatory relevant consideration of great importance”.

50    The Minister contended that this ground of review misunderstood his task under s 501BA(2). He contended that there is no requirement in that section that he consider the materials advanced under the s 501CA(4) process and that, in proceeding under s 501BA, he is not “acting as a tribunal of review”. Further, he contended that the matters he was required to have regard to under s 501BA(2) were different to those a decision-maker is required to consider under s 501CA(4)(b). For these reasons, he contended that the decision in Brown, which dealt with s 501(2), did not assist Mr Vargas in this ground of review.

Consideration and disposition

51    The Minister is essentially correct in his submissions. The power that he was exercising under s 501BA is fundamentally different to that which is exercised under s 501CA. Under the latter provision, the decision-maker is required to have regard to the representations made by the applicant and to reach a state of satisfaction about whether he or she passes the character test (subs (4)(b)(i)), or whether there is another reason the original cancellation decision should be revoked (subs (4)(b)(ii)). Similarly, s 501(2), which was considered in Brown, is quite different in its requirements. It does not require the Minister to reach a state of satisfaction about the national interest, it does not require the Minister to make the decision personally (cf ss 501(3) and (4)), and the rules of natural justice do apply (cf ss 501(5) and (3)).

52    By comparison, under the former provision, namely s 501BA, there is no requirement to invite, or consider, representations from the applicant; the rules of natural justice do not apply (s 501BA(3)); the requisite state of satisfaction relates to the passing of the character test (501BA(2)(a)) and whether the cancellation is in the national interest (501BA(2)(b)); and the decision must be made by the Minister personally (501BA(4)).

53    As the plurality observed in Brown (Allsop CJ, Kenny and Banks-Smith JJ), these provisions and others at ss 501 to 501CA form “a complex web of powers providing for the refusal or cancellation of visas by the Minister (personally or by the delegate)”. Each of these powers must therefore be exercised according to the conditions and constraints imposed by the particular legislative provision concerned. It follows that it is not valid to import the requirements for the exercise of some of those powers to the conditions and constraints imposed on others, as Mr Vargas has attempted to do in this ground of review.

OVERALL CONCLUSION

54    For these reasons, none of Mr Vargas’ grounds of review has merit. His application for review of the Minister’s decision must therefore be dismissed with costs. The orders will be:

1.    The application filed 27 April 2020 is dismissed.

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

Associate:    

Dated:    25 March 2021