Federal Court of Australia

Kuster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1462

ORDERS

THE COURT ORDERS THAT:

1.    Time is extended in which to commence the proceeding to 21 May 2021.

2.    Leave is granted to file and rely upon the Amended Originating application for review of a migration decision dated 29 September 2021 (Application).

3.    The Application is dismissed.

4.    The applicant is to pay the costs of the respondent, as agreed or taxed.

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

REASONS FOR JUDGMENT

HALLEY J:

INTRODUCTION

1    This is an application made under s 477A(2) seeking an extension of time to bring an application pursuant to s 476A(1)(b) of the Migration Act 1958 (Cth) (Act).

2    The applicant is seeking judicial review of a decision of the respondent (Minister) made on 14 April 2021 not to revoke the mandatory cancellation of the applicant’s visa under s 501(3A) of the Act (non-revocation decision).

3    The application for the extension of time was filed on 20 May 2021. It was only two days outside the 35 day time limit imposed by s 477(1) of the Act.

4    The parties agreed that it was convenient for the Court to hear and determine the extension of time application and the substantive appeal, assuming the extension of time application was successful, together. I was satisfied that this was an appropriate course as the parties had prepared extensive submissions on the merits of the proposed grounds of appeal, that being a matter relevant to both the extension of time application and the substantive appeal.

5    The proposed grounds of appeal in the proposed amended originating application dated 29 September 2021 (Application) are stated to be:

Ground One

1.    The Respondent fell into jurisdictional error by considering an irrelevant consideration, being that the Applicant is a PNG citizen.

Particulars

(i)    The Decision at [24], under “Extent of impediments if removed” states “I find that he [the Applicant] will have access to the same level of health care as other PNG citizens.”

  (ii)    The Decision at [19] states:

“I note that [the Applicant] was denied entry to PNG on 21 August 2019 when he attempted voluntary departure to await a decision on his revocation request. On arrival at Port Moresby, [the Applicant] was held on the plane and flown back to Brisbane as PNG’s Immigration and Citizenship Authority (ICA) was not satisfied that [the Applicant] is a PNG citizen ... The PNG government subsequently confirmed its view that [the Applicant] is not a PNG citizen at present.”

(iii)    There is no evidence that the Applicant is a PNG citizen, or has any right to PNG citizenship.

Ground Two

2.    The Respondent fell into jurisdictional error by failing to consider a relevant consideration, being that the Applicant is stateless.

Particulars

(i)    The Decision makes no mention of the Applicant being stateless.

(ii)    There is no evidence that the Applicant is a citizen or has a right to return to any country.

(iii)    The Ground One Particulars are repeated.

Ground Three

3.    In the alternative to Ground Two, if it is determined that the Respondent considered the Applicant’s stateless status, the Respondent failed to provide procedural fairness to the Applicant, by failing to notify the Applicant that the Respondent would consider statelessness in making the Decision, or notifying the Applicant of the Respondent’s position that the Applicant could apply for PNG citizenship at some point in the future and the requirements for the same.

Particulars

(i)    The natural justice letters sent from the Respondent to the Applicant dated 21 December 2017 (CB10), 14 May 2019 (CB159), 20 June 2019 (CB206) and 21 May 2020 (CB235), did not specify statelessness as a consideration the Respondent may consider in making the Decision;

(ii)    the Applicant was not provided with the correspondence (being the letter from Mr John Ma’o Kali, PNG High Commissioner dated 20 February 2019 and the letter from Mr Robert Barra Kennedy, Acting Migration Officer, PNG ICA dated 16 November 202 [sic]) between the Respondent and the PNG Government regarding the Applicant’s PNG citizenship or lack thereof as part of the natural justice process (see natural justice letters dated 21 December 2017, 14 May 2019, 20 June 2019 and 21 May 2020);

(iii)    the Applicant was not provided with the correspondence between the Respondent and the PNG Government (being the letter from Mr John Ma’o Kali, PNG High Commissioner dated 20 February 2019 and the letter from Mr Robert Barra Kennedy, Acting Migration Officer, PNG ICA dated 16 November 2020) regarding requirements for PNG citizenship, and was not given the opportunity to comment on the Applicant’s ability or not to meet the requirements for PNG citizenship based on these documents. In particular, that the Applicant could not meet the three year residential or character requirement; and

(iv)    based on the letter from the Office of the Chief Migration Officer ICA PNG dated 16 November 2020 the Respondent knew as a certainty that the Applicant would not meet the requirements for PNG citizenship if he applied.

Ground Four

4.    The Decision is legally unreasonable, in that it: (a) accepts the country of reference is PNG and uses PNG as the country to consider non-refoulement and implements if removed against; (b) recognises the PNG Government holds the view that the Applicant is not a PNG citizen at present; (c) provides no evidence that PNG will ever accept the Applicant as a PNG citizen; and (d) compares the Applicant to “other PNG citizens”.

Particulars

(i)    The Decision from [22] to [32] addresses “Extent of impediments if removed.” The only country referenced in this section is PNG.

(ii)    The Decision from [33] to [50] addresses “International non-refoulement obligations.” The only country referenced in this section is PNG.

(iii)    There is no evidence that the Applicant is a citizen or has a right to return to any country.

(iv)    The Ground One Particulars are repeated

6    For the reasons that follow, I granted the extension of time to file the Application, but I found that the Minister did not err in refusing to revoke the mandatory cancellation of the applicant’s visa pursuant to s 501(3A) of the Act.

BACKGROUND

7    The applicant was born in Papua New Guinea (PNG) on 31 October 1978.

8     He has lived in Australia since he was 4 years old.

9    On 1 September 1994, the applicant was granted a Class BF Transitional (Permanent Visa) (Visa).

10    Between his original arrival in Australia and the date of the non-revocation decision, the applicant resided in Australia for approximately 38 years.

11    On 21 December 2017, the Visa was mandatorily cancelled pursuant to s 501(3A) of the Act. Section 501(3A) provides:

(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.

12    Subsections 501(6) and 501(7) relevantly provide:

(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));

…

(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; …

13    If a visa is cancelled pursuant to s 501(3A) of the Act, the former visa holder can seek to have the cancellation revoked pursuant to s 501CA. Section 501CA relevantly provides:

(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.

…

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

…

(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 test should be revoked.

14    There is no dispute that the conditions leading to mandatory cancellation pursuant to s 501(3A) were met. In the notice of mandatory cancellation dated 21 December 2017 (original decision), the Minister stated that he was satisfied that the applicant had a substantial criminal record pursuant to s 501(7)(c) for the purposes of the character test. The Minister relied on the applicant’s conviction on 3 May 2005 for two counts of driving a motor vehicle dangerously and the corresponding sentence of two years and six months imprisonment, and that the applicant was currently serving a sentence of imprisonment for an aggravated contravention of a domestic violence order.

15    The issue before the Minister, therefore, was only whether there was “another reason” to revoke the original decision under s 501CA(4)(b)(ii).

16    On 18 January 2018, the applicant made a request for revocation of the original decision.

17    On 23 July 2018, the applicant was released from prison but was then detained by the Minister under s 189 of the Act.

18    By letter dated 20 February 2019, the PNG High Commissioner to Australia, Mr John Ma’o Kali, advised Australian Border Force (20 February 2019 letter), in response to their request for the issue of an Emergency Travel Document for “Mr KUSTER Gus Thomas”, that:

The High Commission wishes to convey to Australian Border Force that PNG Immigration Do Not have any record of Mr. KUSTER Gus Thomas as a PNG citizen nor applied for PNG citizenship.

In this regards, the High Commission wishes to convey that Mr. KUSTER Gus Thomas born on 31 October 1978 is not a Papua New Guinea Citizen and cannot be deported to PNG.

19    On 21 August 2019, the applicant was denied entry to PNG when he attempted voluntary departure while awaiting a decision from the Minister on his revocation request. On his arrival in Port Moresby he was detained on the aircraft and then flown back to Brisbane. A 17 June 2020 internal email from an officer in the Immigration and Citizenship Services Group of the Department of Home Affairs (Department) states the reason for this denial of entry was because the “Papua New Guinea’s Immigration and Citizenship Authority was not satisfied that Mr KUSTER is a Papua New Guinean citizen”.

20    By letter dated 16 November 2020, the PNG Immigration and Citizenship Authority (ICA) advised the Australian High Commission in PNG (16 November 2020 letter) that the ICA did not hold any records relating to the citizenship status of “Thomas Guster Kus” and noted that this was consistent with “the advice that had been provided to the Australian authorities by the PNG High Commissioner”. Significantly, the 16 November 2020 included the following advice:

In the case of Mr. Kus, ICA notes that he was born on 31 October 1978 in PNG and came to Australia on 09 September 1983 with his (Australian) parents, seeking permanent residency. Evidence provided to ICA suggest that he had a PNG mother.

According to section 66(3) of the Constitution Amendment NO.43 (Dual Citizenship) Law 2016, Mr. Kus fits the requirement for citizenship by descent being born before Independence Day and having one parent or grandparent who is/was a citizen. Noting however, to attain citizenship by descent under subsection (3), Mr. Kus must apply to the Minister responsible for citizenship and meet the prescribed requirements in subsection (5) such as; reside in the country for three (3) years prior to lodging his application, be of good character and renounce any other citizenship and make a Declaration of Loyalty to PNG.

In concluding, ICA advices that Messers [Redacted] and Kus are at present, not citizens of PNG and must meet the necessary Constitutional requirements before PNG citizenship status can be afforded to them.

21    It is readily apparent that the references in the 16 November 2020 letter to “Mr Kus” are references to the applicant. More problematic are the conflicting statements that the applicant was born on 31 October 1978 and the applicant was “born before Independence Day”. The advice as to the citizenship status of the applicant, on its face, would appear to have been given on a fundamentally incorrect premise. PNG obtained independence on 16 September 1975, a fact of which I am prepared to take judicial notice.

22    On 14 April 2021, the Minister notified the applicant of the non-revocation decision.

23    The applicant contends that, in affirming the original decision, the Minister fell into jurisdictional error on four grounds which are variously alleged to constitute: taking into account an irrelevant consideration; failing to take into account a relevant consideration; a failure to accord the applicant procedural fairness in the alternative to the second ground; and legal unreasonableness (in context, better expressed as illogicality or irrationality).

Minister’s decision

24    The Minister’s principal conclusions in support of the non-revocation decision, as recorded in his statement of reasons, were as follows:

(a)    the best interests of the applicant’s child and grandnephew would be served by a revocation of the original decision;

(b)    he has taken into account the consequences of non-revocation of the original decision for the applicant’s extended family, his positive contributions to the Australian community over 20 years and the extent of the impediments that he would face if he were removed to PNG;

(c)    he has considered the possibility that if the original decision is not revoked, the applicant may be detained indefinitely because of the uncertainty about his PNG citizenship status;

(d)    he is not able to make any finding in relation to any harm the applicant might face if he were removed to PNG, without further substantiation of the applicant’s claims;

(e)    he has given significant weight to the serious nature of the crimes committed by the applicant, some of which were of a violent and reckless nature;

(f)    the Australian community could be exposed to harm if the applicant were to reoffend in a similar fashion and he could not rule out the possibility that the applicant would reoffend;

(g)    the Australian community would generally expect that non-citizens with a significant criminal history should not hold a visa; and

(h)    in this case, the protection of the Australian community and their expectations outweigh the countervailing considerations in sub-paragraphs (a) to (c) above.

25    The applicant’s challenge to the non-revocation decision are directed at the findings of the Minister with respect to the applicant’s PNG citizenship status and the extent of the impediments faced by the applicant if he were to be removed to PNG. The two issues are interrelated. The applicant relies on the Minister’s reasoning in relation to the extent of impediments if he were removed as indicating the Minister had proceeded on the basis that the applicant would be able to obtain PNG citizenship.

26    On or about 17 February 2021, prior to making the non-revocation decision, the Minister had received an internal submission in relation to the applicant’s application for a revocation of the original decision to cancel the Visa pursuant to s 501CA(4) of the Act. It included the following advice in relation to the applicant’s PNG citizenship status:

11.    … There is presently no known prospect of removal of Mr KUSTER to another country. In these circumstances, refusal to revoke the original decision could mean Mr KUSTER would remain in immigration detention indefinitely.

…

Uncertainty of Mr Kuster’s PNG citizenship status

13.    The view expressed by the PNG government that Mr KUSTER is not a PNG citizen was contrary to the department’s understanding.

[The submission then referred to and quoted from the 20 February 2019 letter and 16 November 2020 letter.]

18.     Apart from various editorial errors in PNG ICA’s letter of 16 November 2020, including identifying Mr KUSTER by the wrong name and stating that he was born “before” Independence Day when he was in fact born after that day, the substance of the advice also appears inconsistent with the terms of the relevant provisions of the PNG Constitution. In particular, contrary to PNG ICA’s advice, the effect of s66(1) of the PNG Constitution appears to be that Mr KUSTER is a PNG citizen by operation of law without the need to apply for citizenship by descent, while s66(3) would permit Mr KUSTER's children, rather than Mr KUSTER himself, to apply for citizenship by descent.

19.     Nevertheless, regardless of the true legal position in relation to Mr KUSTER's PNG citizenship, it is clear that removal of Mr KUSTER is not realistically possible, and will remain so for some time, given the apparently firm view taken by the PNG government to date.

27    In addition, the submission to the Minister noted that the applicant had made a complaint to the Australian Human Rights Commission regarding his length of time in detention and in which he claimed that he is “stateless”.

28    The Minister addressed the applicant’s citizenship status in his statement of reasons under a heading “Uncertainty of Mr KUSTER’s PNG citizenship status” in these terms:

19.     I note that Mr KUSTER was denied entry to PNG on 21 August 2019 when he attempted voluntary departure to await a decision on his revocation request. On arrival at Port Moresby, Mr KUSTER was held on the plane and flown back to Brisbane as PNG’s Immigration and Citizenship Authority (ICA) was not satisfied that Mr KUSTER is a PNG citizen … The PNG government subsequently confirmed its view that Mr KUSTER is not a PNG citizen at present.

20.     In light of the view expressed by the PNG government to date in this regard, I accept that, at least at the present time, it is not reasonably practicable to remove Mr KUSTER from Australia to PNG. Nor is it apparent to me at present that Mr KUSTER may be removed to any other country. In the meantime, he must continue to be detained in accordance with s189 and s196 of the Act, unless granted another visa. I have also noted that it is currently unclear whether and when his removal from Australia will become reasonably practicable.

21.     I have found that the possibility of indefinite detention for Mr KUSTER weighs in favour of revocation of the cancellation of his visa.

Application for extension of Time

29    To be granted an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth), the Court will be guided by the following factors: the length and explanation of the delay; any prejudice the Minister might suffer due to the delay (albeit that the mere absence of prejudice is not sufficient to justify the grant of an extension); and the merits of the substantial application if an extension were granted: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186 at 348-9 (Wilcox J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ); Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20] (Perram, Farrell and Perry JJ).

30    An extension of time in which to file an appeal will not be granted without a consideration of the putative appellant’s prospects of successfully prosecuting the appeal: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospects of success, an extension of time, even for a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J), citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] (Jessup J, with whom Gyles and Besanko JJ agreed); SZOZG v Minister for Immigration and Citizenship and Anor [2011] FCA 756 at [24] (Flick J).

31    The applicant submitted that there were two reasons for the delay in the filing of the application for the extension of time. First, the applicant’s previous migration agent was unresponsive to requests made by the applicant’s legal representative to obtain the non-revocation decision. Second, both the applicant’s legal representatives and the respondent’s legal representatives had then been under a mistaken apprehension that previous proceedings brought against the Minister by the applicant seeking an order to compel the Minister to make a revocation decision would be revived without the need to commence fresh proceedings.

32    The Minister accepts that the applicant has provided a reasonable explanation for his delay in commencing the appeal. I do not consider that the delay itself was material and the Minister accepts that he will not be prejudiced by the grant of an extension of time.

33    The Minister submits, however, that the extension of time sought in the Application should be refused because the appeal does not enjoy sufficient prospects of success to warrant an extension: MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21]-[23] and [38] (Tracey, Perry and Charlesworth JJ).

34    I am satisfied that the explanation provided by the applicant for the delay in taking steps to institute the appeal from the orders of the primary judge, the comparatively short length of that delay and the absence of any specific prejudice to the Minister arising from that delay all weigh in favour of granting the extension of time to file the notice of appeal as sought in the Application.

35    I am also satisfied that the proposed grounds of appeal have sufficient merit to warrant an extension of time to file the application for judicial review of the non-revocation decision, although for the reasons that follow I was not persuaded that the applicant has established any jurisdictional error by the Minister.

The Appeal

Ground 1 - Taking into account an irrelevant consideration

36    The applicant submits that the non-revocation decision appears to have proceeded on the premise that the applicant was a citizen of PNG, despite the “PNG Government not accepting the applicant as a citizen and refusing the applicant’s deportation”. The applicant says in light of the firm position taken by the ICA, the confirmation from the PNG High Commission and the failed deportation of the applicant, it was difficult to reconcile how the Minister could “describe the applicant’s PNG citizenship as ‘uncertain’”. He submits it was open to the Minister to accept with certainty that the PNG Government did not accept that the applicant was a citizen of PNG.

37    The applicant contends that by proceeding on the basis that the applicant was a citizen of PNG in addressing the “Extent of impediments if removed” consideration in his statement of reasons, the Minister had regard to an irrelevant consideration that should not have informed the non-revocation decision.

38    In assessing the extent of any impediments for the applicant if he were removed to PNG, the Minister included the following statements in his statement of reasons:

22.     While it is currently not reasonably practicable to remove Mr KUSTER to PNG, I have considered the impediments Mr KUSTER may face on his return should that become practicable in the future. In particular, I have had regard to the impediments that Mr KUSTER will face in establishing himself and maintaining basic living standards in PNG.

…

24.     Whilst the level of publicly available health care in PNG is not of a similar high standard and ease of access as those services are available to Mr KUSTER in Australia … I find that he will have access to the same level of health care as other PNG citizens.

…

31.     I find that Mr KUSTER will face practical, financial and emotional hardship upon a return to PNG, due to separation from his family and friends and established connections. He will also be deprived of social, emotional and economic support.

32.     I find that the difficulties Mr KUSTER are likely to experience will be exacerbated by cultural barriers, as he is not familiar with the customs, culture and lifestyles of PNG, and the fact that he is of mixed race heritage. However, I also find that these challenges will be alleviated to some degree by his fluency in English which is one of the official languages of PNG.

39    The applicant submits that paragraphs 24, 31 and 32 of the statement of reasons for the non-revocation decision quoted above are “quite squarely premised on the assumption that the applicant is a citizen of PNG”.

40    I do not accept that submission. The statements have to be read in context. Paragraph 22 of the statement of reasons makes plain that the consideration of impediments to removal are premised on the assumption that, contrary to the present position, it might become reasonably practicable for him to be removed to PNG at some future time. The reference to “reasonably practicable” in turn needs to be construed in the context of the Minister’s reasoning with respect to the uncertainty of the applicant’s PNG citizenship status.

41    The applicant has not established any credible basis on which it could be concluded that the Minister had proceeded on the basis that the applicant was a PNG citizen in coming to the non-revocation.

42    Moreover, as submitted by the Minister, an “irrelevant consideration” ground of review is directed at a decision-maker considering a matter that it is either, expressly or impliedly, forbidden from being taken into account by the relevant statutory regime in which the decision is made: Sunshine Coast Broadcasters Pty Ltd and Others v Australian Communications and Media Authority (2012) 209 FCR 518; [2012] FCA 1205 at [104] (Kenny J). It is not at all apparent how taking into account alleged facts or evidence as to whether a person is a citizen of another country could be characterised as a matter that the Act forbids a decision-maker from considering.

43    Ground 1 has not been established.

Ground 2 – Failure to take into account a relevant consideration

44    The applicant submits that he is stateless in the light of the “firm decision taken by the ICA, the confirmation given by the High Commission to PNG and the applicant’s failed deportation”.

45    The applicant contends that his statelessness was a relevant consideration and of such significant weight and materiality that it should have been taken into account by the Minister. He submits that it should not have been overlooked or disregarded without comment by the Minister in a proper determination of the non-revocation decision.

46    The difficulty with these submissions is that the Minister did not accept that the applicant was stateless. The Minister proceeded on the basis that there was uncertainty as to the applicant’s PNG citizenship status. That determination by the Minister is the subject of Ground 4 in the Application.

47    Ground 2 has not been established.

Ground 3 – Procedural fairness

48    The content of the obligation of procedural fairness in a particular case is determined by “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: Minister for Immigration and Border Protection v WZARH and Another (2015) 256 CLR 326; [2015] HCA 40 at [30] (Kiefel, Bell and Keane JJ). Procedural fairness is not an abstract concept. It reflects a concern of the law to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Ex parte Lam) at [37] (Gleeson CJ).

49    Whether any failure to give an applicant the opportunity to respond to adverse information relied upon by a decision-maker gives rise to a denial of procedural fairness depends upon a range of factors, including the importance of the material to the ultimate decision and the nature of that material. The fact that there has been no opportunity to respond to information that is “purely factual and entirely incontrovertible” or “so blindingly obvious as not to require any comment or submission” will be of little or no significance: Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 (Applicants M1015) at [54] (Weinberg J).

50    As a general principle, a decision-maker has an obligation to put adverse information to an applicant that is “credible, relevant and significant to the decision to be made”: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 (Brennan J); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [15] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

51    There is conflicting authority on whether an applicant complaining of a lack of procedural fairness bears a positive onus to establish that they would have taken a different course and that they had thereby suffered “practical injustice”: see Applicants M1015 at [52]-[53] (citing Ex parte Lam; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; J Basten QC ‘Constitutional elements of judicial review’ (2004) 15(3) PLR 187 at 195-8); Minister for Immigration and Citizenship v SZQKB (2012) 133 ALD 495; [2012] FCA 1189 at [38] (Yates J). On balance, I do not consider that there is any general rule that this is required in all cases. The absence of such evidence, however, may well prove decisive in some cases and is a factor to be taken into account in determining whether there has been any “practical injustice”.

52    The applicant advances the following contentions in support of the procedural fairness complaints that he advances in this ground of review:

(a)    he was never given notice of the 20 February 2019 letter and the 16 November 2020 letter (together PNG letters) or the PNG authorities’ position regarding his PNG citizenship status and his inability to be deported to PNG;

(b)    he was never given notice of the prospect of an indefinite detention; and

(c)    he was never given notice of the possibility that he was stateless or the impact of him being stateless.

53    The applicant submits that the prospect of indefinite detention and his statelessness are matters that he should have been given notice by the Minister. He submits that this did not occur and that failure amounts to a serious irregularity producing practical injustice.

54    The applicant submits that if these matters had been brought to his attention he could have addressed the Minister about indefinite detention, the impact of indefinite detention on his health and welfare, and on the health and welfare of his family “within the framework of the 501CA natural justice requirements, as opposed to in general correspondence”. The submission was based on the proposition that the Minister should have taken the applicant’s statelessness into account within that framework rather than in “general correspondence”.

55    Section 501CA of the Act relevantly provides:

(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;

(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.

56    The applicant submits that for the purpose of the framework provided by s 501CA it does not matter whether the information was adverse. He further submits that, in any event, the information concerning the applicant’s statelessness was adverse to the applicant because it meant that he would be subject to indefinite detention in Australia.

57    The applicant further sought to rely on internal emails within the Department that established that a positive decision had been made not to provide the PNG letters to the applicant, because it might instigate a complaint that he should never have been removed to PNG in August 2019 given his statelessness, and it may have led to further delays in progressing the submission to the Minister for decision. When pressed as to the relevance of these emails, counsel for the applicant stated:

MS GOODCHILD: Well, it’s not directly relevant other than the fact that it’s quite clear that officers within the department had this material available to them and turned their mind as to whether or not they should be released, but the reasons why they’re not released were not – were matters more concerned about internal government concern about complaint and grievance, as opposed to, in my respectful submission, having regard to the procedural fairness and just the absolute fairness to Mr Kuster. We don’t want to release these documents because we’re concerned how it looks.

58    The Minister advances four submissions in response to the applicant’s procedural fairness ground of review:

(a)    the information in the PNG letters was not adverse because they supported the applicant’s case, in that they supported the inference that there would be detrimental consequences for the applicant in the form of indefinite detention, and the attempt by the applicant to overcome the “non-adverse” proposition by relying on s 501CA framework is misconceived;

(b)    the applicant and his representatives were aware of the substance of the relevant information in the PNG letters;

(c)    it is not easy to see what practical injustice the applicant suffered by not being provided with the PNG letters; and

(d)    relatedly to the third submission, the prospect of the Minister reaching a different decision had the applicant been provided with the PNG letters was, at best, speculative.

59    I am not persuaded that the Minister failed to provide procedural fairness in the respects alleged by the applicant.

60    First, the information contained in the PNG letters was not adverse to the applicant’s position. Rather, the information concerning the applicant’s citizenship status would either have been neutral or made it less likely that the Minister would revoke the original decision. Any increase in the uncertainty as to the applicant’s PNG citizenship status could only serve to decrease the likelihood of statelessness by reason of indefinite detention and therefore make it more likely that the Minister would not revoke the original decision.

61    Second, the s 501CA framework does not assist the applicant in providing an alternative basis for an obligation to provide the PNG letters to the applicant in order to afford procedural fairness to him. The requirement in s 501CA(2) of the Migration Act to provide information to the applicant is directed at “relevant information”. Relevant information is information that the Minister considers would be the reason, or a part of the reason, for making the “original decision”.

62    Section 501CA(1) provides that the “original decision” is the decision made under s 501(3A). The decision under s 501(3A) is the mandatory requirement to cancel a visa if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record by reason of the person being sentenced to a term of imprisonment of 12 months or more. The immigration status of the applicant, in particular his PNG citizenship status, cannot be the reason or part of the reason for concluding that the applicant had a substantial criminal record or was currently serving a sentence of 12 months or more.

63    Third, the risk of statelessness must have been readily apparent to the applicant by reason of his failed voluntary removal to PNG in August 2019.

64    By letter dated 21 May 2020, the Department provided the applicant with what it expressly stated was further information relevant to the decision on whether to revoke the original decision. That information included copies of four ABC media articles dated between 12 December 2018 and 22 August 2019 and invited the applicant to comment on these articles. The last two of the articles are the most relevant for the issue of the PNG immigration status of the applicant and his potential statelessness.

65    The headline to the ABC media article updated at 11.46 pm on 21 August 2019 was “Papua New Guinea refuses deportation bid by Australian Government, Gus Kuster flown back to Australia”. The article reported:

PNG chief of immigration Solomon Kanitha said his country’s immigration and Citizenship Authority (ICA) wanted a “formal request” from Australia and would “have to verify if the person is or was a PNG citizen and if the person is still a citizen is qualified under our laws to be returned to this country”.

“He has been refused entry until ICA receives a formal request with necessary documentation on his citizenship status before a decision is conveyed to Australian authorities.” Mr Kantha said.

66    The headline to the ABC media article updated at 9.46 am on 22 August 2019 was “Gus Kuster speaks about his anguish after after [sic] bungled deportation from Australia to Papua New Guinea”. The article included the following statements:

The man at the centre of yesterday’s bungled deportation operation has spoken of his anguish at being rejected by two countries in one day.

“Where does that leave me?” Gus Kuster told AM in his first interview since being forced to return to the country that tried to deport him.

“The Australian Government is saying I’m not Australian, and the [Papua] New Guinea Government is saying that I’m not allowed there because I’ve lived all my life in Australia.”

67    Further, by letter dated 9 February 2021, the applicant’s legal representative advised the Minister that she had instructions to commence proceedings for unreasonable delay unless a decision on the applicant’s request for a revocation of the cancellation of the Visa was made by the close of business on 16 February 2021. In her letter, the applicant’s legal representative expressly referred to the refusal by the PNG authorities to permit the applicant to enter PNG on 21 August 2019, referred to the natural justice letter sent to the applicant on 21 May 2020 and then stated that:

We are aware that the Department has made the following preliminary assessment of Mr Kuster’s situation:

    “The Papua New Guinea government has asked the Australian government to provide the necessary evidence that Mr KUSTER is a Papua New Guinean citizen. Given that documentary evidence of Mr KUSTER’s Papua New Guinea citizenship is not available, Mr KUSTER is now effectively stateless, as he has no permission to enter or reside in Papua New Guinea or Australia.”

68    The risk of indefinite detention must have been readily apparent to the applicant and his legal advisers before the Minister made the non-revocation decision on 14 April 2021.

69    Fourth, I am satisfied by reason of the matters outlined above that the applicant was aware of the substance of the information contained in the PNG letters prior to the non-revocation decision; namely, that the PNG Government was proceeding on the basis that the applicant was not a citizen of PNG. Both the PNG letters responded to queries as to the applicant’s PNG citizenship status by stating, in effect, that the applicant was not a citizen of PNG because the PNG authorities did not have any records relating to his citizenship status.

70    The 20 February 2019 letter stated that the PNG Immigration Department did not have any record that the applicant was a PNG citizen or that he had applied for PNG citizenship and that “in this regards”, the applicant was not a PNG citizen and cannot be deported to PNG.

71    After confirming the absence of any records of the applicant’s citizenship status, the Acting Chief Migration Officer concluded in the 16 November 2020 letter that the applicant was not at present a citizen of PNG but added that he must “meet the necessary Constitutional requirements before PNG citizenship status can be accorded” to him. As explained above, however, the explanation provided in the letter of the Constitutional requirements was based on the flawed premise that the applicant was born before Independence Day.

72    Fifth, I am not satisfied that the applicant suffered any practical injustice by reason of any failure by the Minister to give him notice of the PNG letters or the PNG authorities’ position regarding his PNG citizenship status and his inability to be deported to PNG.

73    The applicant submits that had such notice been provided, he could have made more focused and specific representations as to his statelessness and indefinite detention. The difficulty with this submission is that the Minister had declined to revoke the original decision notwithstanding the contents of the PNG letters. Moreover, greater focus or attention on the 16 November 2020 letter would in all likelihood have served only to highlight the extent to which the advice proceeded on the flawed assumption that the applicant was born before, not after, PNG Independence Day. Pointing to this error would have had the effect of increasing, not decreasing, the uncertainty of the applicant’s PNG citizenship status. Greater uncertainty would not advance the applicant’s position because from the Minister’s perspective, it would reduce, not increase, the risk of indefinite detention.

74    Further, for completeness, I note that the applicant did not seek to lead any evidence that the applicant’s entitlement to PNG citizenship would have been diminished if the advice had proceeded on the assumption that he was born in PNG after Independence Day.

Ground 4 – Irrationality and illogicality

75    Although the applicant’s fourth ground of review contends that the non-revocation decision was “legally unreasonable”, this is problematic in the present circumstances. The issue the Minister was considering was whether he was satisfied of the matters in s 501CA(4)(b)(ii); namely, was there “another reason why the original decision should be revoked”. This involved a substantive deliberative process, not the exercise of a discretion. Legal unreasonableness does not have any application in respect of findings of non-satisfaction that a visa applicant has met the statutory criteria. Properly understood, the allegation should be that the jurisdictional fact, being the state of mind that the applicant did not meet the statutory criteria, was “vitiated or did not exist because its formation was illogical or irrational”: EHF17 v Minister for Immigration and Border Protection and Another (2019) 272 FCR 409; [2019] FCA 1681 at [58] (Derrington J); Ali v Minister for Home Affairs (2020) 278 FCR 627; [2020] FCAFC 109 at [43] (Collier, Reeves and Derrington JJ); Zyambo v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] FCA 545 at [23] (Derrington J).

76    The threshold for establishing jurisdictional error by reason of illogicality or irrationality is very high. The decision must be one that no rational or logical decision maker could arrive on the same evidence: Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 at [130]-[135].

77    The applicant contends that the Minister’s determination that his PNG citizenship status was uncertain was a determination that was “irrational, illogical and not based upon findings or inferences of facts supported by logical grounds having regard to the certainty of the PNG authorities’ position regarding the applicant’s citizenship and prospects of deportation”.

78    The applicant also submits that the Minister’s acceptance that PNG was the applicant’s home country as a basis for his consideration of both impediments to removal and international non-refoulement obligations, and further his acceptance that it was not reasonably practicable at the time to remove the applicant to PNG, were each determinations that were irrational or illogical on the same basis.

79    The Minister made the following principal submissions in response.

80    First, there is a high threshold for finding illogicality or irrationality and such a finding is particularly difficult in this case in which the impugned finding was uncertainty as to the applicant’s PNG citizenship status, and he did not make a positive finding of fact, one way or the other.

81    Second, there was nothing to support the view that he was uncertain as to whether the applicant would obtain PNG citizenship in the future under the process contemplated by s 66(3) of the PNG Constitution, nor about the position adopted by the PNG authorities. Rather, he was uncertain about whether the view expressed in the 16 November 2020 letter represented a correct view of the law of PNG (having regard to s 66(1) of the PNG Constitution).

82    Third, his uncertainty finding was amply grounded in the evidence, namely the errors in the 16 November 2020 letter and the conflicting conclusions reached by the PNG authorities and his Senior Departmental Officer as to the content of PNG citizenship law.

83    Fourth, the substance of the advice contained in the PNG letters was only that the PNG authorities could not locate any records indicating that the applicant was a citizen of PNG.

84    Fifth, he did not make any finding that PNG was the applicant’s home country and to the extent that he considered impediments to removal and international non-refoulement obligations he did so on the assumption that the applicant would be able to be removed to PNG.

85    For the reasons advanced by the Minister, I do not accept that the only logical or rational conclusion that the Minister could have come to was that there was no uncertainty about the PNG citizenship status of the applicant. I do not accept that there was no basis for the Minister to find that there was any uncertainty as to the PNG citizenship status of the applicant.

86    The PNG letters supported the finding by the Minister that it was not, at the time, reasonably practicable to remove the applicant to PNG but given their content, in particular the internally inconsistent advice in the 16 November 2020 letter, it was not irrational or illogical for the Minister to conclude that there was uncertainty as to the applicant’s PNG citizenship status. Further, given that the 16 November 2020 letter was the most recent communication from the PNG authorities prior to the non-revocation decision, it was the most relevant information as to the applicant’s PNG citizenship status at the time the Minister made the non-revocation decision. The explanation of the applicant’s PNG citizenship in the 16 November 2020 letter was based on a false premise. The applicant, as otherwise recognised in the letter, was born after, not before, PNG Independence.

87    Ultimately an absence of records as a basis to reach conclusions on citizenship, internally inconsistent advice on the relevant provisions in the PNG Constitution applicable to the applicant and conflicting advice from a Senior Department Officer were sufficient to preclude a finding of illogicality or irrationality by the Minister in proceeding on the basis that there was uncertainty as to the applicant’s PNG citizenship status.

88    This ground of review has not been established.

Disposition

89    It follows that the applicant should be granted an extension of time to file his application seeking judicial review but the appeal should be dismissed and the applicant should pay the costs of the Minister, as agreed or taxed.

Associate:    

Dated:    23 November 2021