Federal Court of Australia

BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to file the Further Further Amended Originating Application adding Ground 7 in proceeding NSD 495 of 2021.

2.    Proceedings NSD 495 of 2021 and NSD 567 of 2021 are dismissed.

3.    The applicant pay the costs of proceedings NSD 495 of 2021 and NSD 567 of 2021.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant has brought separate proceedings for judicial review of the following decisions:

    a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) on 11 March 2020 to cancel the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) (the cancellation decision); and

    a decision made by the Administrative Appeals Tribunal (the Tribunal) on 1 March 2021 affirming the decision made by a different delegate of the Minister on 4 December 2020 pursuant to s 501CA(4) of the Act to not revoke the cancellation decision (the non-revocation decision).

2    An unusual feature of the proceeding is that the applicant challenges, not only the Tribunal’s decision affirming the delegate’s non-revocation decision, but also the cancellation decision itself. That stems from the unusual facts of the case.

3    The applicant was initially sentenced to 18 months’ imprisonment for various criminal offences and was required to serve the sentence on a full-time basis in a custodial institution. In such circumstances, s 501(3A) of the Act requires the Minister to cancel a visa, and the applicant’s visa was duly cancelled. After the cancellation of his visa, the applicant succeeded in his appeal against his sentence of imprisonment, and he was resentenced to 10 months’ imprisonment backdated to the date of his original sentence. That brought the applicant’s sentence below the 12-month threshold prescribed under ss 501(3A), 501(6)(a) and 501(7)(c) of the Act.

4    In response to an invitation under s 501CA(3)(b) of the Act, the applicant made representations to the Minister’s delegate that the cancellation decision should be revoked under s 501CA(4) on the basis, inter alia, that his sentence of imprisonment had been reduced to less than 12 months. The Minister’s delegate declined to revoke the cancellation decision. The applicant then sought review of the delegate’s non-revocation decision before the Tribunal, but the Tribunal decided to affirm the decision.

5    The applicant argues that the cancellation decision and the Tribunal’s decision affirming the delegate’s non-revocation decision are each attended with jurisdictional error and should be quashed.

Grounds of the application

6    Ground 1 is common to the Originating Application in proceeding NSD 567 of 2021 and the Further Further Amended Originating Application in proceeding NSD 495 of 2021. It raises an argument that, as a consequence of the applicant’s resentencing to a term of imprisonment below the statutory threshold prescribed under s 501(3A) of the Act, the cancellation decision is invalid.

7    In proceeding NSD 495 of 2021, Grounds 2, 4 and 6 of the applicant’s Further Further Amended Originating Application are related to Ground 1 and raise arguments that as a consequence of the applicant’s resentencing to a term of imprisonment below the statutory threshold under s 501(3A) of the Act, the cancellation decision should have been revoked by the Tribunal under s 501CA(4).

8    Ground 3 challenges factual findings made by the Tribunal that the applicant was a national of South Sudan.

9    Ground 5 asserts that the Tribunal failed to deal with a mandatory relevant consideration, or clearly articulated argument, that the applicant was at risk of indefinite detention by reason of Australia’s non-refoulement obligations to the applicant.

10    The applicant sought leave at the hearing to rely upon an additional seventh ground. That proposed ground asserts that by reason of the statutory scheme, the Tribunal was required to revoke the cancellation decision. The parties were ordered to provide supplementary written submissions on the proposed seventh ground, and they have done so.

11    To place the grounds of the application in context, I will describe the factual background and procedural history, and then examine the relevant statutory provisions and the Tribunal’s decision, before considering the grounds and the competing submissions.

Background

12    The applicant was born in January 1998 and is presently 24 years of age. He was born in what was then Sudan, but is now South Sudan. He arrived in Australia under a Class BC Subclass 100 Spouse Visa on 10 September 2008 when he was ten years old.

13    On 15 January 2020, the applicant was convicted in the Magistrates’ Court of Victoria at Sunshine of offences including resisting a police officer, affray (3 counts), assaulting an emergency worker on duty (3 counts), assaulting a protective services officer, committing an indictable offence while on bail and failing to answer bail. He was sentenced to a period of imprisonment of 18 months.

14    On 11 March 2020, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Act on the basis that the applicant had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full-time basis in a custodial institution for offences against State laws: see ss 501(3A)(b), 501(6)(a) and 501(7)(c) of the Act.

15    The Minister’s delegate invited the applicant to make representations about the revocation of the cancellation decision, and the applicant did so on 20 May 2020.

16    On 11 June 2020, the applicant was successful in an appeal to the County Court of Victoria against his sentence. The Magistrates’ Court’s orders were set aside. The applicant was resentenced to a term of 10 months’ imprisonment, which was backdated to 15 January 2020.

17    On 5 October 2020, the applicant was invited to comment on further information received by the Department, including a transcript of the County Court appeal proceedings. The applicant, through his legal representative, made further representations to the delegate on 2 November 2020.

18    On 4 December 2020, the delegate declined, under s 501CA(4), to revoke the cancellation decision. Although the delegate accepted that the applicant passed the limb of the character test in ss 501(6)(a) and 501(7)(c), the delegate was not satisfied that the applicant passed the limbs in s 501(6)(d)(i) and (v), nor that there was “another reason” to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii).

19    On 7 December 2020, the applicant sought review of the delegate’s non-revocation decision in the Tribunal pursuant to s 500(1)(ba) of the Act. On 1 March 2021, the Tribunal affirmed the non-revocation decision. The Tribunal’s reasons for its decision will be discussed later in these reasons.

20    The applicant applied to the Federal Court of Australia in proceeding NSD 495 of 2021 for review of the Tribunal’s decision. The applicant’s first ground of review challenged the decision of the Minister’s delegate of 11 March 2020 to cancel his visa. The applicant subsequently recognised it was doubtful that the Federal Court has jurisdiction to review the cancellation decision. The applicant attempted to deal with the jurisdictional issue by commencing a proceeding in the then Federal Circuit Court of Australia seeking review of the cancellation decision, an extension of time pursuant to s 477(2) of the Act to bring the application, and transfer of the proceeding to this Court.

21    The Federal Circuit Court judge who heard the application decided, contrary to the parties’ submissions, to transfer the application for an extension of time to the Federal Court. In doing so, his Honour declined to follow clear decisions of single judges of the Federal Court holding that the Federal Court lacks jurisdiction to grant an extension of time pursuant to s 477(2) of the Act. In BJT21 v Minister for Home Affairs [2021] FCA 663, I remitted the matter to the Federal Circuit Court for determination of the applicant’s application for an extension of time. On 25 June 2021, the Federal Circuit Court granted an extension of time.

22    The Originating Application transferred from the Federal Circuit Court was given the Federal Court proceeding number NSD 567 of 2021. The sole ground of that application is the same as the first ground of the Further Further Amended Originating Application in proceeding NSD 495 of 2021.

23    I am now satisfied that the Federal Court has jurisdiction to hear and determine both the application for judicial review of the cancellation decision and the application for review of the Tribunal’s decision.

The Act and Direction 79

24    Section 501 of the Act provides, relevantly:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

…

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(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.

(3B)    Subsection (3A) does not limit subsections (2) and (3).

…

(5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

Character test

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

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

…

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)     engage in criminal conduct in Australia; or

…

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way…

…

Substantial criminal record

(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…

…

…

Pardons etc.

(10)    For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a)    the conviction concerned has been quashed or otherwise nullified; or

(b)    both:

(i)    the person has been pardoned in relation to the conviction concerned; and

(ii)    the effect of that pardon is that the person is taken never to have been convicted of the offence.

…

(12)    In this section:

court includes a court martial or similar military tribunal.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence.

...

25    Section 501CA provides, relevantly:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

…

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

(b)    the Minister is satisfied:

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

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

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

…

26    Direction 79 was given by the Minister under s 499(1) of the Act and is entitled, “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”.

27    The objectives of Direction 79 are described in paragraph 6.1, which provides, relevantly, that its purpose is to guide decision-makers performing functions or exercising powers under s 501 of the Act. Paragraph 6.1(3) deals specifically with the mandatory cancellation provisions of s 501(3A).

28    Section 2 of Direction 79 is entitled “Exercising the discretion”. Paragraph 7(1) provides that, informed by the principles in paragraph 6.3, a decision-maker must take into account, “the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa”, and “the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”.

29    Paragraph 8(1) provides, “Decision-makers must take into account the primary and other considerations relevant to the individual case” which are articulated in Parts A, B and C. Paragraph 8(4) provides that, “Primary considerations should generally be given greater weight than the other considerations”.

30    The primary and other considerations relevant to exercising the discretion to revoke the mandatory cancellation of a visa are set out in Part C. Paragraph 13(2) describes the primary considerations as follows:

(2)    In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

a)    Protection of the Australian community from criminal or other serious conduct;

b)    The best interests of minor children in Australia;

c)    Expectations of the Australian community.

31    Paragraph 13.1 explains the primary consideration of protection of the Australian community. Decision-makers are required to give consideration to the nature and seriousness of a non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 13.2 explains the primary consideration of the best interests of minor children in Australia affected by the decision, and paragraph 13.3 explains the primary consideration of expectations of the Australian community.

32    Paragraph 14(1) requires “Other Considerations” to be taken into account where relevant. Such considerations include international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.

The Tribunal’s decision

33    The Tribunal noted that the applicant had a history of consistent offending over a period of seven years, including frequent crimes against the person, and often against strangers: at [139] and [144]. The applicant’s criminal history included convictions for resisting a police officer, affray, assaulting an emergency worker on duty, assaulting a protective services officer, and bail offences. The applicant had received a range of sanctions for his behaviour, the most serious being two sentences of imprisonment: at [143].

34    The Tribunal considered at [23] that the cancellation decision under s 501(3A) had been a valid exercise of power as the requisite factual preconditions were met as at the date of that decision, the applicant having been sentenced to 18 months’ imprisonment. The Tribunal then proceeded to review the delegate’s non-revocation decision of 1 March 2021.

Tribunal’s application of the character test

35    The Tribunal first considered whether the applicant passed the character test: see [24]-[25] and from [28]. The Tribunal implicitly accepted that the applicant no longer failed the character test under ss 501(6)(a) and 501(7)(c) of the Act.

36    The Tribunal went on to consider the limbs of the character test in ss 501(6)(d)(i) and 501(6)(d)(v), which the delegate had found the applicant did not satisfy. Section 501(6)(d)(i) provides that a person does not pass the character test if, in the event the person were allowed to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia. The Tribunal found at [125] that, “there is a more than a minimal or remote probability that the Applicant will engage in criminal conduct in the future if allowed to remain in Australia”. The Tribunal concluded at [128] that the applicant failed the character test on the basis of s 501(6)(d)(i).

37    The Tribunal also considered s 501(6)(d)(v) at [127], but was not satisfied that the applicant failed that limb of the character test.

Tribunal’s consideration of whether there was “another reason” to revoke the cancellation decision

38    Having found that the applicant did not pass the character test, the Tribunal proceeded to consider whether there was “another reason” to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act. For this purpose, the Tribunal addressed Direction 79, finding that Part C was applicable to the applicant’s case: see [133].

39    The Tribunal first considered each of the primary considerations. In respect of protection of the Australian community, the Tribunal found at [149] that there was a real risk of the applicant re-offending. The Tribunal referred at [37], [149]-[150] and [155] to remarks made by each of the Magistrate and County Court judge when sentencing the applicant. The Tribunal found at [159] that, “[o]verall, the Tribunal considers there is a risk of reoffending, especially if the protective factor of detention is removed”, and concluded at [161] that the protection of the Australian community weighed relatively heavily against restoration of the applicant’s visa.

40    The Tribunal next considered the best interests of minor children in Australia affected by the cancellation decision. The Tribunal noted at [162] that there were three minor children in Australia affected by the decision, being the children of the applicant’s sister. The Tribunal concluded at [166] that it was satisfied that it was in the best interests of the three children to restore the applicant’s visa. The Tribunal found at [168] that this primary consideration weighed in favour of restoring the visa.

41    The Tribunal then considered the expectations of the Australian community. The Tribunal noted at [174]-[175] that the applicant had lived in Australia from the age of 10 years (amounting to over half his life), that he had a sparse work record, and that a “hallmark” of his offending over a number of years had been frequent offending against police officers, emergency workers and protective services officers, all on duty: at [175]. The Tribunal concluded at [176] that the applicant, “failed to meet the expectation that he obeys the laws of Australia”, and found at [177] that this primary consideration weighed, “relatively heavily against restoring [the applicant’s] visa”.

42    The Tribunal then went on to address “Other Considerations”. The Tribunal noted at [182] that it was open to the applicant to apply for a protection visa, before proceeding to consider claims made by the applicant about a risk of harm in South Sudan. In the course of submissions before the Tribunal, both parties had confirmed that the applicant’s country of reference was South Sudan: at [179]. The Tribunal noted at [102] that the applicant understood his parents to have been born in a village in what is now South Sudan. The Tribunal referred at [183] to provisions of The Nationality Act, 2011 of South Sudan as the current domestic law of that country. The Tribunal noted at [183] that the applicant claimed to not be a citizen of South Sudan. At [185], it considered country information showing that practical difficulties in obtaining Sudanese nationality, “can lead to de facto statelessness”.

43    The Tribunal observed at [97] that the applicant said he had been a Christian but converted to Islam in 2018. The Tribunal noted at [112] that the applicant submitted that he did not have citizenship documentation. The applicant had submitted that he had no documents to enable him to provide evidence that his parents were born in South Sudan, and it would be “onerous” for him to apply for citizenship of South Sudan.

44    The Tribunal at [184] considered DFAT country information that some Muslims face official discrimination in South Sudan, particularly in relation to obtaining nationality or identity documents, as well as “low-level discrimination” in other areas of day-to-day life.

45    The Tribunal considered the applicant’s non-refoulement claims at [187]-[189], including that there is an ongoing civil war and emergency situation in South Sudan. The Tribunal at [195]-[198] considered country information to the effect that ethnicity is a significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan, and that Dinkas living in conflict-affected areas face a high risk, although the risk in Juba is lower. However, the Tribunal noted the possibility that the applicant may be exposed to treaty-related harm in areas away from Juba: at [202].

46    The Tribunal considered at [200]-[202] that other reasons the applicant may fear harm in South Sudan, such as his lack of proficiency in local languages and lack of familial support, did not rise to the level of “another reason” why the cancellation decision should be revoked. The Tribunal also noted the relevance of Ministerial Direction 75 dealing with the obligation to consider any refugee claims before considering any character concerns: at [203].

47    The Tribunal’s key factual findings in relation to Australia’s international non-refoulement obligations concerning the applicant can be summarised as follows:

    The applicant is of Dinka ethnicity: at [199].

    The applicant is a South Sudanese national: at [186].

    The applicant is a citizen of the Republic of South Sudan: at [199].

    It would not be onerous for the applicant to obtain the relevant documentation if he were repatriated, notwithstanding some evidence that he may encounter additional obstacles due to being a Muslim: at [186].

    The applicant has a legal entitlement to citizenship of South Sudan as he is of Dinka ethnicity and his parents were born in South Sudan: at [186].

    The applicant feared harm in South Sudan: at [199].

    The applicant can be returned to South Sudan: at [199].

48    The Tribunal concluded at [204] that Australia’s non-refoulement obligations weighed in favour of restoring the applicant’s visa.

49    With respect to the applicant’s claims about the prospect of indefinite detention, the Tribunal noted submissions made by the applicant that:

    he has no rights of access to any other country and if the delegate’s non-revocation decision were not set aside by the Tribunal, it was “most likely” he would be subjected to indefinite detention or “detention for an indeterminate period of time”: at [189] and [193]; and

    if the cancellation decision were not revoked and the applicant were not removed to South Sudan as soon as reasonably practicable, the Department would be in breach of its statutory duty under ss 197C and 198 of the Act which arises irrespective of any non-refoulement obligations: at [191].

50    With respect to strength, nature and duration of ties, the Tribunal accepted at [208] that there are people in the community, including Australian citizens and permanent residents, who have links with the applicant, and that the applicant has particularly strong links with his two sisters, his two nieces and his nephew: at [210]. The Tribunal accepted the applicant’s evidence that he has had no contact with his mother since coming to Australia: at [207]. Overall, the Tribunal found that the applicant’s family network being in Australia weighed slightly in favour of restoring his visa: at [210]-[211].

51    The Tribunal found that the impact of the applicant’s offending on victims, and any impact on Australian business interests if the cancellation decision were not revoked, both weighed neutrally: at [214]-[215].

52    The Tribunal considered the extent of any impediments the applicant may face if removed to South Sudan. The Tribunal noted at [98]-[99] that the applicant had been diagnosed with latent tuberculosis, although it was not satisfied that there was a current “active” diagnosis of tuberculosis: at [219]. While noting that the applicant was generally in good health, the Tribunal found at [222] that the applicant’s medical condition weighed slightly in favour of restoring the visa.

53    The Tribunal concluded:

223.    The Tribunal has weighed all the relevant considerations in the Direction. Two of the three primary considerations weigh against the Applicant, two relatively heavily. The other primary consideration, the best interests of minor children affected by the decision, weighs in favour of the Applicant but that weight is tempered by the fact he is not in a parental role in relation to the relevant children, and others exercise that role.

224.    In respect of the other considerations, three weigh in favour of the Applicant, non-refoulement obligations, the strength, nature and duration of his ties to Australia and the extent of impediments if removed, the last two of these slightly. The other considerations stipulated in Part C weigh neutrally. The Tribunal is not limited only to the considerations set out in the Direction in deciding whether there is ‘another reason’ in the terms of section 501CA(4)(ii) (sic) of the Act to revoke the mandatory cancellation of the visa, but the Tribunal has not identified any other particular factor it should take into account which would affect the exercise of the statutory discretion under the Act.

225.    There are considerations which the Tribunal has found weigh in favour of the Applicant, including consideration of non-refoulement obligations and the extent of impediments [the Applicant] would face if removed from Australia, but the Tribunal does not consider the weight that attaches to either of these considerations to be determinative. Balancing these points is that [the Applicant] has regularly offended, especially against police officers on duty. He has offended consistently for half of his teenage and all of his adult life until his recent incarceration.

226.    After considering all the considerations and applying them to the particular circumstances of the Applicant, the Tribunal finds that the protection of the Australian community and the risk of re-offending, especially re-offending in a similar nature, are of such significant weight that they outweigh those other considerations which have been found to weigh in favour of restoring the visa.

227.    The Tribunal, having concluded that the Applicant fails the character test under section 501(6)(d)(i) of the Act, does not find that there is ‘another reason’ under section 501CA(4)(b)(ii) of the Act why the decision not to restore the visa should be revoked. That decision should be affirmed.

Consideration

Ground 1: Invalidity of the cancellation decision under s 501(3A) of the Act

54    The applicant argued before the Minister’s delegate and the Tribunal that the cancellation decision under s 501(3A) should be set aside, or that the power to revoke the cancellation decision under s 501CA(4) should be exercised in his favour, by reason of the reduction of his criminal sentence to less than 12 months.

55    Ground 1 in proceeding NSD 495 of 2021, as well as and in proceeding NSD 567 of 2021, asserts, relevantly, as follows:

1.    The decision of the delegate of the first respondent dated 11 March 2020 to cancel the applicant s visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) was of no effect as a statutory precondition necessary for the exercise of that power is not satisfied.

…

1.3    The applicant has not, within [the] meaning of section 501(3A), been sentenced to a period of imprisonment “of 12 months or more” within [the] meaning of section 501(3A), having had his sentence reduced on appeal to the County Court of Victoria to an aggregate term of 10 months’ imprisonment on 11 June 2020.

56    The applicant submits that a statutory precondition necessary for the exercise of the power under s 501(3A) was not satisfied, in that the applicant has not been sentenced to a term of imprisonment of at least 12 months. It is submitted that the Minister’s construction of s 501(3A) such that the cancellation decision remains valid even if the sentence is reduced to below the 12-month threshold produces harsh and unintended consequences. One consequence is that a person whose visa has been cancelled under s 501(3A) must satisfy the Minister under s 501CA(4) that a reason exists to revoke the cancellation. On the other hand, if cancellation were considered under s 501(2), natural justice would have to be provided and would require a positive exercise of the discretion to cancel. The Minister’s construction is said to be contrary to the common law principle that upon the reversal of a conviction for any offence, the judgment becomes absolutely null and void. The applicant submits that s 501(3A) should be construed such that a mandatory visa cancellation is invalid if an appeal process results in reduction of the criminal sentence to below 12 months.

57    The Minister submits that there is no basis for construing s 501(3A) such that the Minister’s decision is rendered invalid by a sentence being reduced to below the statutory threshold after the decision is made. The Minister submits that the jurisdictional fact which conditions the exercise of the mandatory cancellation power is the Minister’s satisfaction that, relevantly, the person has been sentenced to a term of imprisonment of 12 months or more; not the objective fact that the person has been sentenced to such a term. The Minister submits that an assessment as to whether a state of satisfaction was formed lawfully must be conducted by reference to the material before the decision-maker and the circumstances as they existed at the time of the decision.

58    At this stage, it is worth setting out s 501(3A) again:

(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.

59    Section 501(3A)(a)(ii), dealing with sexually based offences involving a child, can largely be left aside for present purposes.

60    The substance of the applicant’s argument is that, as a matter of construction, an exercise of power under s 501(3A) is affected by jurisdictional error where, objectively, a person no longer fails the character test by the operation of s 501(6)(a) (read with s 501(7)(c)), even though the person failed the test at the date of the decision to cancel the visa. That proposed construction is based upon the potential for harsh and seemingly anomalous consequences that may otherwise ensue. Such consequences are demonstrated in a case like the present, where the applicant may never have come to the attention of the Minister, and his visa may never have been cancelled if not for the error of the Magistrate, subsequently corrected on appeal, in sentencing the applicant to more than 12 months’ imprisonment. Even if the applicant had correctly been sentenced to 10 months’ imprisonment by the Magistrate but had still come to the Minister’s attention, any potential cancellation would have been considered under s 501(2), and the applicant would have been afforded natural justice and the Minister would have had a discretion as to whether to cancel the visa. In contrast, the confined power under s 501CA(4) only allowed revocation of the cancellation decision if the Minister’s delegate was satisfied that the applicant’s representations demonstrated that he passed the character test or that there was “another reason” for revocation.

61    In Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220 it was held that at common law, the effect of the reversal of a conviction by proceedings in error is that the conviction is avoided ab initio. Justices Rich, Dixon, Evatt and McTiernan observed at 225:

But “upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void. If living, he (or if dead, his heir or personal representative, as the case may be) will be entitled to be restored to all things which he may have lost by such erroneous judgment and proceedings, and shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him”.

(Citations omitted.)

62    Similarly, in Rimanic and Anor v Business Licensing Authority (2002) 129 A Crim R 356; [2002] VSCA 64, Callaway JA (the other members of the Court agreeing) held at [10]:

… when the conviction was set aside by the County Court, the effect of the conviction was retrospectively undone. In the language approved by Rich, Dixon, Evatt and McTiernan, JJ, the appellants were entitled to be restored to their former position and to stand in every respect as if Mr Rimanic had never been charged with the offence of which he was convicted. To use the language of Starke J, the conviction was obliterated and was to be altogether held for nothing.

63    The general law position is no doubt based upon principles of justice. However, the application of the general law is subject to any statutory enactment to the contrary (and it was not suggested that the enactment of s 501(3A) was beyond the power of the Commonwealth).

64    The basis of the applicant’s argument is that an exercise of power under s 501(3A) is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months. However, the jurisdictional fact in s 501(3A)(a) conditioning the exercise of the power to cancel is that the Minister is satisfied that the person does not pass the character test, not that the person objectively does not do so because of the operation of s 501(6)(a): see HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 at [67] per McKerracher J. The time at which the Minister must achieve that state of satisfaction is the time at which the power is exercised.

65    In Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500, the Minister decided to cancel the appellant’s visa under s 501(2), based in part on a 2010 conviction and in part on a 2014 conviction. The appellant was later granted an annulment of the 2014 conviction. Section 501(10) of the Act provides, relevantly, that “[f]or the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if…the conviction concerned has been quashed or otherwise nullified”.

66    In Parker, Griffiths and Perry JJ at [32]-[33] and [38] rejected a submission that the phrase “may cancel” in s 501(2) necessarily meant that, in the case of a decision not to exercise the power, the power can only be exercised on the one, single occasion and is then spent. More importantly for the present case, their Honours at [54]-[61] (distinguishing Cavanough) rejected a submission that cancellation of a visa, under a power conditioned on the satisfaction of the Minister that the person did not meet the character test, was affected by jurisdictional error because of the subsequent annulment of a conviction. Their Honours held at [61]:

In our view, the question on judicial review must be approached without regard to the subsequent fact that the 2014 conviction was annulled …

67    Justice Mortimer agreed with Griffiths and Perry JJ and added the following observations at [77]:

… The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction, or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular cases), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister’s decision, that could not be the case.

68    It may be noted that the observations in Parker concerning when the Minister’s state of satisfaction is to be judged for the purposes of s 501(2) of the Act are not affected by the judgment of the High Court in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 95 ALJR 117.

69    Section 501(3A) was directly addressed by Steward J in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 118. In that case, the plaintiff’s conviction forming the basis of the decision to cancel his visa under s 501(3A) was subsequently quashed. It was contended, in reliance upon Cavanough, that the decision to cancel the plaintiff’s visa was invalid because a precondition to the exercise of that cancellation power had never existed. His Honour observed at [37]-[41]:

37.    Section 501(3A) of the Migration Act is mandatory in its terms. The Minister does not possess a discretion to decide not to exercise the power once she or he is satisfied that the necessary jurisdictional facts are present. The power is relevantly predicated upon a state of satisfaction about the existence of two facts. The first fact is that the person “has been sentenced to a term of imprisonment of 12 months or more”. The use of the past tense here mandates the prior existence of such a sentence at the time the Minister must exercise the power conferred by s 501(3A) … As Middleton, Reeves and Anderson JJ said in Ketjan v Assistant Minister for Immigration and Border Protection (a case concerning s 501(3A)):

“[A]s evident from the text of the provisions, para (a) requires a ‘positive state of satisfaction’ on the part of the Minister (Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 (Falzon) at [46] per Kiefel CJ, Bell, Keane and Edelman JJ) …”

38.    In other words, when the power in s 501(3A) of the Migration Act is engaged, the Minister’s state of satisfaction looks to the past (“has” the person “been sentenced” for the relevant period) … Neither fact is expressed to depend on the person’s valid conviction of the crime that has led to her or his imprisonment. The Minister is not obliged to second-guess the past conviction or sentencing; nor is she or he required to confirm the validity of any ongoing imprisonment.

…

40.    In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made.

…

41.    Here, the plaintiff candidly conceded that when the Minister decided to cancel his visa, that decision was, at that time, entirely valid. He did not dispute that, at that time, each of the matters upon which a lawful exercise of the power conferred by s 501(3A) of the Migration Act depended were then in existence. That being so, that is the end of the matter. The legal efficacy of a decision cannot be undone by events which did not exist when the decision was made.

(Citations omitted.)

70    In my opinion, the provision considered in Parker, s 501(2), is not relevantly distinguishable from s 501(3A) for the purposes of the present case. Further, the circumstances of Plaintiff B65/2020 are not relevantly distinguishable from those in the present case. The effect of those cases is that the Court’s assessment of whether the state of satisfaction required under s 501(3A) was formed lawfully must be conducted by reference to the circumstances as they existed when the cancellation decision was made.

71    The language and context of s 501(3A) does not indicate that a decision by the Minister under s 501(3A) may be retrospectively vitiated by subsequent events. The Minister’s obligation is to cancel a visa upon satisfaction that the holder: does not pass the character test because of s 501(6)(a) taken with s 501(7)(c) (substantial criminal record), or s 501(6)(e) (sexually based offences involving a child); and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a relevant law. When that state of satisfaction is lawfully reached, the Minister’s obligation to cancel the visa is absolute.

72    The legislative scheme recognises, in s 501(10), that an appeal or a pardon may affect the basis of a cancellation decision under s 501(3A), but does not require the Minister to await the determination of any appeal or any application for a pardon. The purpose of s 501(3A) creates an imperative of timing since the Minister must act while the person is still serving a sentence of imprisonment on a full-time basis in a custodial institution: cf. Parker at [59]. The broad purpose of the provision is protection of the Australian community against harm from criminal acts. The provision recognises a risk that persons who have committed criminal offences in Australia serious enough to attract a term of imprisonment of at least 12 months, or sexual offences involving a child, may offend again if released into the Australian community. In XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619, Burley J observed at [69] that a legislative purpose of s 501(3A) is, “to establish a scheme whereby a person in custody who does not pass the character test will not be released from detention until that person is removed from Australia or their immigration status is otherwise resolved”. Accordingly, the Minister is not required to await the outcome of any appeal or application for a pardon before cancelling a visa under s 501(3A).

73    Sections 501(3A) and 501CA must be considered together. Section 501CA(4) provides some amelioration of the harshness of mandatory cancellation under s 501(3A). If a person is successful in an appeal against a conviction or sentence, or an application for a pardon, the provision may operate to permit the Minister to revoke the cancellation decision. The Minister may be satisfied that a person passes the character test for the purposes of s 501CA(4)(b)(i) in consequence of a successful appeal that sets aside a conviction (see s 501(10)) or reduces a sentence of imprisonment to below the 12-month threshold; or in consequence of the grant of a pardon. The Minister may also be satisfied that such a reduction of sentence contributes to the establishment of “another reason” for revocation within s 501CA(4)(b)(ii).

74    The measure of protection provided under s 501CA(4) is far from absolute for a person in the applicant’s position. The condition under s 501CA(4)(b)(i) is that the Minister is satisfied that, “the person passes the character test (as defined by section 501)”. That draws in the full spectrum of the “character test” under s 501(6), and is broader than s 501(3A) which is confined to, first, s 501(6)(a) taken with s 501(7)(c) (substantial criminal record) and, second, s 501(6)(e) (sexually based offences involving a child): see XJLR at [61]. Accordingly, even though a person may no longer have a “substantial criminal record” by the time s 501CA(4) is considered, the Minister may nevertheless fail to be satisfied that the person passes the character test because of a different limb of s 501(6). Further, the Minister may fail to be satisfied that the reduction of the sentence, considered together with other relevant factors, sufficiently contributes to the establishment of “another reason” for revocation of the cancellation decision.

75    The construction of s 501(3A) contended for by the applicant is that a decision to cancel a visa under that provision is invalid if an appeal process results in the reduction of a sentence to below 12 months’ imprisonment. However, such a construction is not warranted by the potential harshness of the consequences of a contrary construction. The clear language of ss 501(3A) and 501CA(4) and their purpose (preventing release of the person into the Australian community unless and until the cancellation decision is revoked) allow no room for that construction.

76    The reduction of the applicant’s sentence on appeal does not have the consequence that, at the time that the power in s 501(3A) was exercised, the formation of the Minister’s delegate’s state of satisfaction was affected by jurisdictional error. Accordingly, Ground 1 must be rejected.

Ground 2: Invalidity of the Tribunal’s decision on the basis of non-existence of jurisdictional facts

77    Ground 2 asserts, relevantly:

2.    The third respondent in its decision of 1 March 2021 made a jurisdictional error because its decision in effect perpetuated the operation of mandatory cancellation under section 501CA(3A) (sic) of the Act for which there is no remaining legal basis concerning the applicant.

2.1    The third respondent improperly failed to take into account or to attach weight to the consideration that the original decision to cancel the applicant’s visa was made on 11 March 2020 under section 501(3A) of the Act as a mandatory cancellation for ‘substantial criminal record’ under section 501(7)(c) of the Act in that the applicant had been sentenced to a term of imprisonment of 12 months or more.

…

78    Ground 2 commences by alleging, on the premise that the cancellation decision under s 501(3A) is invalid, that the Tribunal’s affirmation of the cancellation decision must also be invalid. That premise must be rejected for reasons I have explained.

79    In written submissions, the applicant explained that Ground 2 also asserts that the Tribunal failed to take into account, “the fact that his visa was mandatorily cancelled in circumstances where ultimately he did not meet the threshold in section 501(3A)”. The applicant submits that although the Tribunal recognised that the applicant’s argument that he did not meet the threshold in s 501(3A) was relevant to a decision under s 501CA(4), the Tribunal ultimately failed to give any consideration to that argument. The Tribunal considered Direction 79 and then expressly stated at [224] that it had, “not identified any other particular factor it should take into account which would affect the exercise of the statutory discretion under the Act”. The applicant submits that if his argument had been considered and accepted, it could have constituted “another reason” for revoking the visa cancellation.

80    The Minister submits that the applicant made no representation to the Minister or submission to the Tribunal to the effect that the reduction in his sentence was “another reason” within s 501CA(4) to revoke the cancellation decision. It is submitted that, in any event, the Tribunal had regard to the applicant’s most recent offending in forming a view about the nature and seriousness of his offending and the risk that he posed to the Australian community. And, reading the Tribunal’s reasons as a whole, it cannot be supposed that the Tribunal closed its mind to the reduction in the applicant’s sentence in exercising its discretion, a matter to which it had expressly referred earlier in its reasons.

81    The Tribunal commenced its reasons by acknowledging at [4] that the applicant’s sentence had been reduced by the County Court to a term of less than 12 months’ imprisonment. The Tribunal at [13] acknowledged that the applicant’s legal representative had submitted that the cancellation decision should be revoked because the applicant passed the character test as the sentence had been reduced to less than 12 months’ imprisonment. The Tribunal at [18] noted that the applicant’s representative had written to the Minister’s delegate saying that if the applicant’s, “criminal record was examined de novo, his visa would not be mandatorily cancelled”, and that this was, “a significant factor supporting the revocation of the cancellation of the visa”.

82    Within the introductory part of the reasons, the Tribunal stated at [27]:

The Tribunal also agrees with the Applicant’s representation to the Department that the fact that, owing to the reduction in the sentence, the visa would not have been mandatorily cancelled, is a factor that is relevant to the question of whether the visa should be restored, but the plain fact is that [he] is without a visa and the Tribunal must consider his application arguing that it should be restored to him.

83    The applicant’s Statement of Facts, Issues and Contentions filed in the Tribunal described the issues at [21] as follows:

(i)    Did the delegate of the Respondent incorrectly affirm the Original Decision by refusing to revoke the said Original Decision being a mandatory visa cancellation (as opposed to a discretionary exercise of jurisdiction), where the sole basis of the Original Decision no longer existed because admittedly the Applicant no longer failed the limb of the character test embodied in s 501(6)(a) of the Act?

(ii)    Did the delegate of the Respondent incorrectly decide that the Applicant had not passed the character test with reference to subsection 501(6)(d) of the Act?

(iii)    Did the delegate of the Respondent fail to properly consider another or other reasons why the Original Decision should have been revoked?

84    The first two issues concerned the effect of the reduction of the applicant’s sentence on the application of the character test. More particularly, the issues concerned whether, for the purposes of s 501CA(4)(b)(i), the applicant passed the character test. In that regard, the Statement of Facts, Issues and Contentions went on to assert at [27] that, “the Applicant meets the character test”.

85    The third issue was concerned with whether there was “another reason” to revoke the cancellation decision under s 501CA(4)(b)(ii). In that context, the Statement of Facts, Issues and Contentions dealt with the reduction of the sentence of imprisonment in several places. It noted at [46] that, given the maximum sentence was five years’ imprisonment, the ultimate sentence of 10 months’ imprisonment pointed strongly towards a conclusion that the criminal justice system did not view the applicant’s offences as being at the more heinous end of offending. At [50], it was stated that the applicant had served his time and that in sentencing the applicant, the criminal justice system had already considered the protection of the Australian community. At [82], it referred to the risk of double punishment. More generally, the Statement of Facts, Issues and Contentions dealt with the nature and circumstances of the applicant’s criminal history, including the offences attracting the 10-month sentence.

86    I accept that the applicant clearly raised arguments before the Tribunal that the fact his sentence had been reduced meant that he passed the character test and that his visa would not have been cancelled but for the erroneous sentence imposed by the Magistrates Court. Those arguments were directed to a contention that he passed the character test for the purposes of s 501CA(4)(b)(i).

87    The applicant’s reliance on the reduction of his sentence to 10 months’ imprisonment in the context of “another reason” went only to the seriousness of the offending and risk of reoffending, as well as a submission that the applicant’s offending had already been dealt with by the criminal justice system. The applicant did not clearly submit that the fact that his visa was mandatorily cancelled in circumstances where ultimately he did not meet the threshold in s 501(3A) was itself “another reason” why the cancellation decision should be revoked.

88    The Tribunal considered, for the purposes of s 501CA(4)(b)(i), whether the applicant passed the character test. The Tribunal found at [125], on the basis of the applicant’s criminal history, that there was more than “a minimal or remote probability” that he would engage in criminal conduct in the future if allowed to remain in Australia, and that he failed the limb of the character test set out in s 501(6)(d)(i) (that is, there was a risk that he would engage in criminal conduct in Australia). It is apparent that the Tribunal accepted the applicant’s submission that his visa had been mandatorily cancelled in circumstances where, ultimately, he did not meet the threshold in s 501(3A), but treated that submission as beside the point in circumstances where it was satisfied there was a different reason why he did not pass the character test.

89    The Tribunal then proceeded to consider whether there was “another reason” to revoke the cancellation of the applicant’s visa within s 501CA(4)(b)(ii), noting that the Tribunal was required under s 499(2) of the Act to comply with Direction 79. The Tribunal concluded:

223.    The Tribunal has weighed all the relevant considerations in the Direction. Two of the three primary considerations weigh against the Applicant, two relatively heavily. The other primary consideration, the best interests of minor children affected by the decision, weighs in favour of the Applicant but that weight is tempered by the fact he is not in a parental role in relation to the relevant children, and others exercise that role.

224.    In respect of the other considerations, three weigh in favour of the Applicant, non-refoulement obligations, the strength, nature and duration of his ties to Australia and the extent of impediments if removed, the last two of these slightly. The other considerations stipulated in Part C weigh neutrally. The Tribunal is not limited only to the considerations set out in the Direction in deciding whether there is ‘another reason’ in the terms of section 501CA(4)(ii) (sic) of the Act to revoke the mandatory cancellation of the visa, but the Tribunal has not identified any other particular factor it should take into account which would affect the exercise of the statutory discretion under the Act.

90    It is apparent from the last sentence of [224] that the Tribunal took into account only the considerations set out in the Direction when deciding whether there was “another reason” why the cancellation decision should be revoked. The Tribunal did not consider whether the fact that the applicant’s visa had been mandatorily cancelled in circumstances where he ultimately did not meet the threshold in s 501(3A) was, or contributed to there being, “another reason”.

91    The Tribunal had a duty to consider any “substantial and clearly articulated argument” advanced by a party: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24]. However, the applicant had advanced no clear submission or representation that the fact that his visa had been mandatorily cancelled in circumstances where he ultimately did not meet the threshold in s 501(3A) amounted to, or contributed to, “another reason” to revoke the cancellation decision. In the circumstances, the Tribunal was under no obligation to consider that matter and made no error by failing to do so.

92    It is unnecessary to consider the Minister’s submission that such an argument, even if advanced, would be irrelevant because the effect of the statutory scheme is that reduction of a sentence of imprisonment to below the s 501(3A) threshold after cancellation cannot, of itself, be “another reason” requiring revocation of the cancellation decision under s 501CA(4).

Ground 4: Invalidity of the Tribunal’s decision on the basis of consideration of irrelevant sentencing remarks of the lower court and failure to consider relevant sentencing remarks of the appeal court

93    It is convenient to consider Ground 4 at this stage, since it is related to Grounds 1 and 2. Ground 4 asserts, relevantly:

The third respondent committed jurisdictional error in taking into account irrelevant considerations or material, and failing to take into account relevant considerations or material, which considerations or material, if properly taken into account may have affected the third respondent’s ultimate determination.

…

94    The applicant submits that the Tribunal erred by taking into account the sentencing remarks and sentence of the Magistrate; and by failing to take into account or consider the sentencing remarks of the County Court judge who set aside the Magistrate’s sentence and resentenced the applicant.

95    In deciding whether or not to revoke the cancellation decision, the Tribunal was required to comply with Direction No 79 by force of s 499(2A) of the Act. That Direction required the Tribunal to assess the nature and seriousness of the applicant’s conduct and the risk to the Australian community should he commit further offences. In doing so, the Tribunal had regard to the sentencing remarks of the Magistrate, which recounted the circumstances of the applicant’s offending and also canvassed mitigating factors.

96    The applicant acknowledges that a relevant consideration is one the decision-maker is bound to take into account, and an irrelevant consideration is one the decision-maker is bound not to take into account: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. The applicant submits that the Tribunal was bound to only have regard to the operative sentencing remarks, namely the remarks of the County Court judge. It is submitted that the statutory scheme required the Tribunal to accept as correct the factual findings made by the criminal court in which the applicant was ultimately sentenced, relying on HZCP at [76]-[77] and [188]-[190].

97    In HZCP, the appellant contended that the Tribunal erred in concluding that it could not receive certain evidence that was inconsistent with, or contradicted evidence relied on, by the court which convicted and sentenced him. That contention was rejected by a majority of the Full Court. Justice McKerracher held at [79] held that the Tribunal was correct to find that it could not contradict or go behind a conviction, or entertain evidence which impugned the facts found by the sentencing judge. Justice Colvin was less emphatic, but held at [189]-[191] that a convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings.

98    HZCP does not support the proposition contended for by the applicant: that a decision-maker under s 501CA(4) may not consider the sentence and sentencing remarks of a lower court where the sentence has been set aside and the person resentenced by a higher court. While HZCP may have provided support for a proposition that the decision-maker may not take into account the findings of the lower court to the extent they are contradicted by the findings of the higher court, that is not the argument advanced by the applicant. The applicant has not sought to demonstrate that the aspects of the findings of the Magistrates’ Court taken into account by the Tribunal are inconsistent with the findings of the County Court.

99    It cannot be determined that, as a matter of construction of s 501CA(4), a decision-maker is bound not to consider the sentence and sentencing remarks of a lower court in circumstances where the sentence has been set aside and the person resentenced by a higher court. It can readily be imagined that, for example, the sentencing remarks made by the lower court may contain some details not contained in the remarks of the higher court but which are relevant to a decision under s 501CA(4). There is simply no statutory indication of any intention to absolutely prohibit the decision-maker from taking the sentencing remarks of the lower court into account. The sentence and sentencing remarks of the Magistrates’ Court were not an irrelevant consideration in the administrative law sense.

100    Although it can be expected that the sentencing remarks of a relevant court would ordinarily be considered by a decision-maker, there is no statutory indication that they must necessarily be considered in every case. In any event, it is apparent that the Tribunal expressly considered the sentencing remarks of the County Court at [105], [118], [137], [144], [150] and [218].

101    Ground 4 must be rejected.

Ground 6: Invalidity of the Tribunal’s decision on the basis of legal unreasonableness

102    Ground 6 is related to Grounds 1, 2 and 4. It asserts that:

The third respondent was required to revoke the cancellation of the applicant’s visa and/or remit the matter with a direction that the applicant met section 501CA(4), by reason that it was legally unreasonable not to do so in circumstances where it was known to the decision maker at the time that the applicant no longer met the criteria specified in section 501(3A)(a).

103    The applicant submits that s 501CA(4) allows for the correction of error by the Minister where the primary exercise of power miscarried by reason of the fact that the circumstances on which that exercise was predicated no longer exist at law or in fact. It is argued that a purpose of the conferral of that discretion is to remedy the precise difficulty that this case raises; that is, mandatory cancellation under s 501(3A) will often require the exercise of power by the Minister prior to the completion of any appellate process. The applicant submits that in circumstances where it is known at the time of the exercise of discretion under s 501CA(4), as an objective matter of both law and fact, that the applicant does not meet the criteria for a mandatory cancellation, the decision-maker is required to revoke the cancellation of the applicant’s visa; and to do otherwise is to remove the clear delineation between mandatory and discretionary cancellation that is contemplated in the statutory scheme. It is submitted that the Tribunal’s decision not to revoke the cancellation decision on the basis that, inter alia, the applicant did not meet the “character test” under s 501(6)(d)(i) was legally unreasonable.

104    The applicant’s submission is that it is legally unreasonable for the Tribunal to fail to revoke a cancellation decision under s 501CA(4) where the original basis for the cancellation decision under s 501(3A) no longer exists. One premise of that submission is that there was an error by the Minister in making the cancellation decision under s 501(3A). However, as has been discussed, there was no such error. Another premise is that the Tribunal, in reviewing a decision made under s 501CA(4), may correct an error made under s 501(3A). However, XJLR makes it clear at [72] that the Tribunal is not reviewing a decision under s 501(3A) and has no power to set aside any decision made under that provision.

105    Another premise of the applicant’s argument is that a purpose of s 501CA(4) is to remedy the difficulty caused by the fact that s 501(3A) will often require the exercise by the Minister of the power to cancel a visa at a time prior to the completion of any appellate process in respect of a conviction or sentence. That may be accepted. However, a decision-maker is not required to revoke the cancellation of the applicant’s visa where a sentence is reduced on appeal to below the 12-month threshold. As has been explained, the legislative scheme contemplates that the decision-maker may be satisfied that a person does not pass the character test for different reasons, and that there is not “another reason” to revoke the cancellation decision, despite the reduction of a sentence to below the threshold. In such circumstances, legal unreasonableness is not established merely by a failure to revoke the cancellation decision.

106    It was within the decisional freedom of the Tribunal to fail to be satisfied that the applicant did not pass the character test on the basis of risk that he would engage in criminal conduct in Australia. It was also within the decisional freedom of the Tribunal to fail to be satisfied that there was not “another reason” to revoke the cancellation decision in circumstances where the Tribunal found that protection of the Australian community and the risk of re-offending were of such significant weight that they outweighed the considerations weighing in favour of restoring the visa.

107    The Tribunal’s decision was not legally unreasonable. Ground 6 must be rejected.

Ground 3: Invalidity of the Tribunal’s decision on the basis of improper factual findings about the applicant’s nationality

108    Ground 3 asserts, relevantly:

The third respondent in its decision of 1 March 2021 made a jurisdictional error because in considering whether there is another reason why the visa cancellation should be revoked, the third respondent wrongly concluded that the applicant was a national and citizen of the Republic of South Sudan without any expert evidence on effect, application and/or interpretation of South Sudanese citizenship laws.

…

109    The oral argument presented by the applicant was more confined than described in Ground 3. The argument focussed upon the absence of probative evidence that a document on which the Tribunal relied to find that the applicant was a citizen of South Sudan, entitled The Nationality Act, 2011 (South Sudan), expressed to be current as at 2 September 2011, remained in force at the date of the Tribunal’s decision.

110    The Tribunal considered whether the applicant was a citizen or national of South Sudan for the purpose of identifying the country to which he would be returned if removed from Australia. This was in the context of considering whether Australia owed the applicant non-refoulement obligations and the extent of impediments he may face if removed from Australia as part of the consideration of “Other Reasons” under Direction 79.

111    The applicant argued before the Tribunal that the applicant was not a citizen of South Sudan as South Sudan did not exist as a country when his family fled, and that there was no evidence that South Sudan would grant him citizenship and accept his return. The applicant submits that the Tribunal erred by finding, in the absence of probative evidence, that he was a citizen of that country. The applicant submits that the error was material because otherwise the Tribunal may have considered the applicant to be stateless or at risk of indefinite detention.

112    The Tribunal had before it a document headed Laws of South Sudan, and entitled The Nationality Act, 2011. The document was expressed to be current as at 2 September 2011. The Tribunal found at [183]:

In terms of Mr Omar’s claims that the Applicant is not a citizen of South Sudan, the Tribunal has considered this question extensively on previous occasions (see, for example, Re Galuak v Minister for Immigration and Border Protection [2018] AATA 2301). Section 8 of The Nationality Act 2011 (South Sudan) provides that [the Applicant] ‘shall be considered’ a South Sudanese National not only because of his place of birth but also his Dinka ethnicity and the place of birth of his parents. Section 9 of the same Act requires that the relevant Minister in the South Sudanese Government issue a Certificate of Nationality to a person who is a South Sudanese National by virtue of section 8. This Certificate provides proof of citizenship but is not a prerequisite for citizenship.

113    The applicant did not dispute the provenance, authenticity and currency of The Nationality Act before the Tribunal. The applicant now submits that there was no evidence before the Tribunal indicating that The Nationality Act was current, but it is clear that the Act had been enacted and, in the absence of anything to suggest that it had been repealed, it was open to the Tribunal to infer that it remained in force. The mere fact that The Nationality Act was enacted as long ago as 2011 did not provide any indication that it had been repealed by the time of the Tribunal’s decision: we are, after all, dealing in the present case with the Migration Act 1958.

114    There was evidence from which the Tribunal could be satisfied that the applicant was a citizen of South Sudan. Ground 3 must be rejected.

Ground 5: Invalidity of the Tribunal’s decision on the basis of failure to consider the prospect of indefinite detention

115    Ground 5 asserts:

The third respondent constructively failed to exercise its jurisdiction and/or failed to take into account a mandatory relevant consideration, in failing to consider the prospect that the applicant would or may be subject to indefinite or indeterminate detention as a consequence of its decision.

5.1    The third respondent was required to take into account the terms of Direction No 79 which identified an executive policy not to refoul persons identified as being owed non-refoulment (sic) obligations.

5.2    The third respondent was invited to find, and did find that the applicant was owed non-refoulment (sic) obligations.

5.3    The consequence of that finding was that there was a realistic possibility that the applicant would be subject to indefinite or indeterminate detention.

5.4    Further, the applicant submitted that by reason of the executive policy, and the cancellation of his visa (which made it unlikely that he would be granted any further visa), he would be subject to a risk of indefinite or indeterminate detention.

5.5    The third respondent failed to consider whether the prospect that the applicant could or would be detained for an indefinite or indeterminate duration.

116    The applicant submitted before the Tribunal that he was owed non-refoulement obligations and raised the prospect that it was “most likely” he would be subject to indefinite or indeterminate detention in Australia as a result. The applicant submits that the Tribunal failed to consider a mandatory relevant consideration, or deal with the express, clearly articulated argument that he was at risk of indefinite or indeterminate detention by reason of Australia’s non-refoulement obligations. The applicant submits that the Tribunal accepted that the applicant was owed non-refoulement obligations and found that this consideration in Direction 79 weighed in favour of revocation of the cancellation decision, but made no finding as to whether he faced a risk of indefinite or indeterminate detention as a result.

117    The Minister submits that the Tribunal rejected the submission by the applicant that he could not be returned to South Sudan, and that amounted to an implicit rejection of the applicant’s claim that he was at risk of indefinite detention in Australia.

118    The Tribunal expressly referred to the applicant’s submission at [189] of its reasons:

… It was further submitted that [the Applicant] has no rights of access to any other country and if the non-revocation decision is not set aside, it is ‘most likely’ he will be subjected to indefinite detention or ‘detention for an indeterminate period of time.’ That is because the Australian Government will not refoul a non-citizen in breach of its international treaty obligations and it is ‘extremely unlikely’ the Applicant would be granted another visa…

119    However, the Tribunal went on to find at [199] that it, “does not accept the submissions that the [a]pplicant cannot be returned to South Sudan”. It then went on to consider the hardships that the applicant would face upon being removed to South Sudan. By the Tribunal rejecting the submission that the applicant could not be removed to South Sudan, it must be understood to have rejected the submission that it was most likely that he would face indefinite or indeterminate detention.

120    I reject the applicant’s submission that the Tribunal failed to consider the prospect that the applicant would or may be subject to indefinite or indeterminate detention if the cancellation decision were not revoked. Ground 5 must fail.

Proposed Ground 7: Invalidity of the Tribunal’s decision on the basis of misconstruction of the statutory scheme

121    At the hearing, the applicant sought leave to rely upon a further ground, described as Ground 7. The proposed ground is as follows:

7.    The third respondent fell into legal error and/or constructively failed to exercise its jurisdiction in misdirecting itself as to nature of the review task it was required to undertake.

7.1    The applicant had his visa mandatorily cancelled under section 501(3A) by reason of his failure to meet the character test as defined in subsection 501(6)(a) (substantial criminal record).

7.2    The Tribunal was statutorily tasked to review a decision of a delegate of the Minister to refuse to revoke that mandatory visa cancellation, under which scheme the applicant bore the onus to demonstrate that the revocation was necessary.

7.3    In exercising its powers, the Tribunal found the applicant to have failed the character test by reason of subsection 501(6)(d) (risk to the community) and in so doing misdirected itself by acting as if the applicant had his visa validly cancelled by the Minister under that subsection.

7.4    In order for the Minister to lawfully cancel the applicant’s visa under section 501(6)(d), the applicant was required to have been given natural justice prior to any such cancellation, and on any review, the Tribunal was required to consider whether such cancellation was necessary.

7.5    The applicant was not given natural justice with respect to a cancellation of his visa pursuant to section 501(6)(d).

7.6    In circumstances where the applicant no longer met the criteria for a mandatory visa cancellation, the Tribunal was required to remit the application and could not lawfully proceed to consider the application on the (incorrect) basis that the applicant had his visa cancelled under an alternate statutory regime.

122    The Tribunal found that the applicant did not meet the character test by reason of s 501(6)(d)(i), which was a basis other than the basis for the mandatory cancellation decision. The Tribunal was then required to consider under s 501CA(4)(b)(ii) whether there was “another reason why the original decision should be revoked”. The applicant submits that the “original decision” was, by s 501CA(1), the cancellation decision under s 501(3A), and that the statutory review task of the Tribunal was in substance a merits review of the s 501(3A) cancellation decision. It is submitted that the fact that the basis on which the mandatory cancellation rested (that is, that the applicant had a “substantial criminal record”) no longer existed, necessarily constituted “another reason” to revoke the original cancellation decision. This is said to be because a cancellation based on a failure to meet s 501(6)(d)(i) would normally only arise by reason of a positive exercise of discretion under s 501(2) to cancel a visa, which is conditioned on the need to afford natural justice to the visa applicant. Instead, the error in the applicant’s sentencing resulted in his circumstances being considered under s 501CA(4), which involves a “discretion” not to revoke. Further, the applicant was never afforded an opportunity to comment prior to the cancellation decision under s 501(3A), nor was any discretion exercised in that cancellation – protections the applicant would have been entitled to if he had been sentenced correctly by the Magistrate. It is submitted that by proceeding on the basis of a non-revocation decision that rested on a different subsection of s 501(6) from those that enliven a mandatory cancellation, the Tribunal subverted the process meant to be followed, and acted as if it were undertaking a review of the exercise of a s 501(2) discretion. It is submitted that the only manner in which the Tribunal could rectify these deficits was to remit the decision to permit the Minister to engage his powers under s 501(2) if he or she so wished.

123    The Minister opposes a grant of leave to the applicant to amend the Further Amended Originating Application to raise proposed Ground 7.

124    It is a sufficient answer to the applicant’s argument to repeat that the Tribunal’s role does not involve review of the Minister’s decision under s 501(3A), but only the Minister’s decision under s 501CA(4). When the Tribunal considers the application of s 501CA(4), the validity or otherwise of the cancellation decision under s 501(3A) is irrelevant. The statutory scheme does not directly or necessarily provide a remedy for the disadvantage that accrues to a person whose visa is cancelled but whose sentence is subsequently reduced on appeal to below the statutory threshold. The Tribunal’s only role is to review the decision made under s 501CA(4), not to address the legal disadvantages faced by persons in the applicant’s position. Further, as has been discussed, there is no requirement that the Tribunal must revoke a decision made under s 501(3A) in the present circumstances.

125    I will grant leave to amend to include Ground 7. However, the ground must be rejected.

Conclusion

126    The applicant has not established any of his grounds of review. Proceedings NSD 495 of 2021 and NSD 567 of 2021 must be dismissed.

127    The applicant will be ordered to pay the costs of both proceedings.

Associate:    

Dated:    25 January 2022