Federal Court of Australia

CCU21 v Minister for Home Affairs [2022] FCA 28

ORDERS

THE COURT ORDERS THAT:

1.    The third further amended originating application dated 26 November 2021 be dismissed.

2.    The applicant pay the respondents’ costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    By a third further amended originating application dated 26 November 2021, the applicant seeks various relief in relation to the cancellation of his visa, the Minister’s refusal to revoke that cancellation and the validity of a Qualified Security Assessment (QSA) provided by the Australian Security Intelligence Organisation (ASIO), and which was relied upon by the Minister in refusing to revoke the cancellation decision. There are multiple grounds of review, however, in essence the following general issues arise:

(a)    Is the visa cancellation decision invalid?

(b)    Did ASIO exceed its statutory functions under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) in issuing a QSA in relation to the applicant?

(c)    Is the Minister’s decision not to revoke the visa cancellation decision invalid because of procedural unfairness or legal unreasonableness or irrationality?

(d)    Is the non-revocation decision invalid because the Minister relied on a character ground different from the one relied upon in making the visa cancellation decision?

Summary of background facts

2    On 30 September 2019, the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa (the visa) was cancelled under s 501(3) of the Migration Act 1958 (Cth) (Cancellation Decision). The applicant was notified of the Cancellation Decision on 4 October 2019 and was provided on that day with a copy of the Minister’s statement of reasons for that decision. Also on 4 October 2019 the applicant was taken into immigration detention. He was informed that the Minister reasonably suspected that he did not pass the character test as defined in s 501(6) of the Migration Act. The sole ground of the character test was said to be s 501(6)(g). That provision states that a person does not pass the character test if:

the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.

3    This reasonable suspicion was based on an Adverse Security Assessment (ASA) by ASIO, which assessed the applicant to be directly or indirectly a risk to security. ASIO provided the Minister with the ASA dated 17 September 2019, which then led to the Cancellation Decision.

4    On 11 October 2019, by his solicitor, the applicant provided representations in response to the Notice of Visa Cancellation, in which he submitted that he did not fail the character test because the ASA was invalid.

5    On 18 October 2019, the Minister’s Department advised the applicant that the Minister would delay consideration of the applicant’s representations pending the resolution of the applicant’s dispute with ASIO concerning the ASA.

6    ASIO decided that it would conduct a further assessment of the applicant. On 8 July 2020, it finalised a QSA in which it assessed that the applicant was not directly or indirectly a risk to security. ASIO provided a copy of the QSA to both the applicant and the Minister.

7    The QSA included some adverse comments in relation to the applicant’s character, namely:

(a)    “during [the applicant’s] [Security Assessment Interview (SAI)] on 3 December 2019 he made a number of admissions regarding his involvement in the Reunion Island venture that contradicted information provided at the first SAI on 6 June 2019 …” (at [12]);

(b)    “[the applicant’s] comments at the second SAI that he was not motivated by making money from people smuggling are likely untrue” (at [14]);

(c)    “[b]ased on the classified information available at the time of the first security assessment and [the applicant’s] misleading comments at SAI …” (at [16]); and

(d)    “[w]hile the change in his account indicates [the applicant] withheld information and downplayed his involvement in his first SAI in June 2019 …” (at [18]).

8    As will shortly emerge, the applicant contends that these statements did not and could not relate to the question of whether the requirements of security (as defined in s 4 of the ASIO Act) made it “necessary or desirable” for his visa to be cancelled and that none related to security, with the consequence that the applicant claims that ASIO had exceeded its statutory functions.

9    The following day, on 9 July 2020, relying on the QSA, the applicant requested in writing that the mandatory cancellation of his visa be revoked and that he be released from immigration detention.

10    No response to that request was received by the applicant until 20 October 2020. In a letter dated that day, the Minister’s Department accepted that the QSA superseded the earlier ASA. Despite that acknowledgment, the Department stated that s 501C(4) of the Migration Act required a person to satisfy the Minister “that [the person] satisfied the character test as defined by section 501(6) in its entirety” (emphasis added).

11    In both that letter and in a subsequent letter dated 28 January 2021, the Minister’s Department invited the applicant to comment on information that was said to be relevant to whether he failed the character test on the basis of s 501(6)(c).

12    On 9 September 2021 (the day before the applicant’s claim for mandamus to compel the Minister to make a decision was listed for hearing), the applicant was told that the Minister had decided under s 501C(4) of the Migration Act not to revoke the Cancellation Decision (Non-revocation Decision). He was provided with a copy of a statement of reasons in relation to this decision. Relevantly, the Minister said that she had had regard to the applicant’s past and present conduct and whether his continuing conduct is according to “moral principle and therefore whether [the applicant] is of good character” (at [11]).

13    The Minister referred to the QSA and added the following comments in her statement of reasons for the Non-revocation Decision (noting that the reference to Mr Blanks is to the applicant’s solicitor):

13.    ASIO assessed that [the applicant] was ‘a people smuggling facilitator for a venture that arrived in Reunion Island on 13 April 2019 with 120 Sri Lankan nationals on board’BS and that he was ‘instrumental to the success’ of this venture, involved in the recruitment of individuals and the facilitation of payment to the organisers. [The applicant] does not dispute this information.

14.    In relation to [the applicant’s] involvement in the people smuggling venture, Mr Blanks submits that any past involvement in a single people smuggling venture is not of itself, an indicator of present bad character.

15.    I consider that s501(6)(c) of the Act requires consideration of a person’s past and present criminal conduct to determine whether a person is of good character. I consider [the applicant’s] involvement in people smuggling is relevant to [the applicant’s] character based on his past conduct. I consider that any involvement in people smuggling is relevant to the consideration of whether a person is of good character for the purpose of s501(6)(c) of the Act.

16.    I have considered the submissions made by Mr Blanks in relation to [the applicant’s] involvement in the Reunion Island Venture, including:

a.    ASIO assesses that [the applicant] has changed his attitude to people smuggling and has no intention of engaging in people smuggling operations in the future.

b.    ASIO acknowledges that [the applicant’s] changed attitude may have resulted from his recognition of the negative ramifications of the Reunion Island venture or his acknowledgement of risks involved in people smuggling.

c.    ASIO recorded in its assessment that [the applicant] had taken steps to mitigate risks to the safety of those on board, which is contrary to the economic interests of the organisers of the Reunion Island venture. Mr Blanks states that this is indicative of [the applicant’s] principal motivation of concern for the welfare of his family and community members.

d.    ASIO’s assessment regarding [the applicant’s] willingness to assist authorities indicates his change in attitude toward people smuggling.

17.    I note that ASIO has reported that [the applicant] provided information during his second interview regarding a people smuggling venture that was being organised at the time, and that he had also made this claim to an Australian Border Force officer prior to the interview. ASIO assessed that [the applicant’s] willingness to provide additional detail of his involvement in the Reunion Island venture reflects his move away from engaging in people smuggling and his change in attitude towards people smuggling, hence the diminished risk to security, but questioned whether this was due to the actions of the Australian government and the resulting ramifications of his involvement in the venture.

18.    While I acknowledge that [the applicant] has stated that he does not intend to engage in people smuggling operations in future, I do not accept this is because of a change of attitude towards people smuggling, I consider it more likely that this is because of the ramifications of his previous involvement and not because he is morally opposed to people smuggling. I do not accept [the applicant] was not motivated by money and that his principle motivation was for the welfare of his family and community members. I consider that if this were the case [the applicant] would have chosen not to have any involvement in the people smuggling venture, in particular noting the significant risks for individuals being smuggled. Therefore, while I have considered the submissions provided that [the applicant] has good intentions, I have placed greater weight on [the applicant’s] past involvement in people smuggling when considering his character.

19.    I consider [the applicant’s] past involvement in people smuggling and motivations is indicative of a lack of enduring moral conduct.

14    The Minister said that she had also taken into account ASIO’s assessment that the applicant had made misleading comments during his ASIO interview. She said that this constituted “further evidence that [the applicant] lacks enduring moral quality such that he is not of good character” (at [23]).

15    The Minister took into account various incidents while the applicant was in immigration detention, which she described as “minor assaults and physical altercations” (at [24]).

16    The Minister also took into account her findings in relation to the applicant’s behaviour during the period 6 August 2014 and April 2019, during which time he was not in immigration detention. Although the Minister accepted that the applicant was not the subject of any criminal convictions during that period, she considered nevertheless that he was involved in that period in organising a people smuggling venture. She found that this was further evidence that the applicant “lacks enduring moral quality and is not of good character” (at [29]).

17    It is well to set out the Minister’s conclusions in the Non-revocation Decision:

35.    I have considered [the applicant’s] general conduct, in particular his involvement in people smuggling, dishonesty when interviewed by ASIO, and his period in the community where although he did not receive any criminal convictions he was involved in planning people smuggling ventures. I find that this conduct is not according to moral principle.

36.    While I accept [the applicant] has suffered ongoing mental health issues while in detention and that these may have contributed to physical altercations he has been involved in, I find that his conduct in detention cannot be completely disregarded when considering his other behaviour. I find that overall [the applicant’s] continuing conduct is not according to moral principle and [the applicant] is not of good character.

37.    Accordingly I am satisfied [the applicant’s] continuing conduct is not according to moral principle and [the applicant] is not of good character and that a ground for cancellation under s501, with reference to s501(6)(c), exists in this case. In other words, [the applicant] has not satisfied me that he passes the character test.

38.    I have considered all appropriate documents. While I acknowledge Mr Blanks’ representations, I am not satisfied that [the applicant] passes the character test at s501(6)(c) as I find that, having regard to his past and present general conduct that [the applicant] is not of good character.

18    As is the normal practice, the Minister had been provided with a detailed brief and submissions in respect of both the Cancellation Decision and the Non-revocation Decision.

Relevant statutory provisions summarised

19    It is desirable to set out the relevant provisions of both the Migration Act and the ASIO Act.

(a) Migration Act

20    Sub-section 501(3) of the Migration Act confers a power on the Minister, unconstrained by the requirements of natural justice, to refuse or cancel a visa on character grounds where the Minister is satisfied that the refusal or cancellation is in the national interest. It provides:

501    Refusal or cancellation of visa on character grounds

…

(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.

21    Each sub-section of s 501(6) sets out a circumstance in which a person does not pass the character test. If none of those circumstances is satisfied, the concluding words of s 501(6) provide that “the person passes the character test”.

22    Sub-section 501C(3), which is an important provision in the present proceeding, is directed to Minister’s power to revoke a visa cancellation decision made under inter alia s 501(3). The Minister is required “as soon as practicable” after making a decision under s 501(3) to provide “a written notice that sets out the original decision” and “particulars of the relevant information”, and invite the person to make representations to the Minister “about revocation of the original decision” in the manner prescribed by the regulations: see reg 2.52 of the Migration Regulations 1994 (Cth).

23    It is well to set out the terms of sub-section 501C(3):

501C    Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)

…

(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)    except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—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.

…

24    “Relevant information” is defined in s 501C(2) as (emphasis added):

... information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or 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.

25    Sub-section 501C(4) provides:

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

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

(b)    the person satisfies the Minister that the person passes the character test (as defined by section 501).

26    The power in s 501C(4) may be exercised only by the Minister personally.

(b) ASIO Act

27    Part III of the ASIO Act provides for ASIO’s functions and powers. Section 17 relevantly provides:

17    Functions of Organisation

(1)    The functions of the Organisation are:

…

(c)    to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.

…

28    “Security” is relevantly defined in s 4 as follows (emphasis in original):

security means:

…

(aa)    the protection of Australia’s territorial and border integrity from serious threats; and

…

29    Part IV of the ASIO Act deals with security assessments. Section 37 relevantly provides:

37    Security assessments

(1)    The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.

…

(3)    The regulations may prescribe matters that are to be taken into account, the manner in which those matters are to be taken into account, and matters that are not to be taken into account, in the making of assessments, or of assessments of a particular class, and any such regulations are binding on the Organisation and on the Tribunal.

(4)    Subject to any regulations made in accordance with subsection (3), the Director General shall, in consultation with the Minister, determine matters of a kind referred to in subsection (3), but nothing in this subsection affects the powers of the Tribunal.

…

30    Section 35 contains various definitions which are relevant to ASIO’s function of providing security assessments (emphasis in original):

35    Interpretation

(1)    In this Part, unless the contrary intention appears:

adverse security assessment means a security assessment in respect of a person that contains:

(a)    any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and

(b)    a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.

…

prescribed administrative action means:

…

(b)    the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act; or

…

qualified security assessment means a security assessment in respect of a person that:

(a)    contains any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and

(b)    does not contain a recommendation of the kind referred to in paragraph (b) of the definition of adverse security assessment;

whether or not the matters contained in the assessment would, by themselves, justify prescribed administrative action being taken or not being taken in respect of the person to the prejudice of the interests of the person.

security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency, State or authority of a State expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.

…

31    Section 36 identifies certain security assessments to which Pt IV does not apply (emphasis in original):

36    Part not to apply to certain assessments

(1)    This Part (other than subsections 37(1), (3) and (4)) does not apply to or in relation to:

…

(b)    a security assessment in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action in section 35 (other than an assessment made for the purposes of subsection 202(1) of the Migration Act 1958) in respect of a person who is not:

(i)    an Australian citizen;

(ii)    a person who is, within the meaning of the Migration Act 1958, the holder of a valid permanent visa; or

(iii)    a person who holds a special category visa or is taken by subsection 33(2) of the Migration Act 1958 to have been granted a special purpose visa; or

…

The parties’ evidence

32    The applicant relied upon five affidavits sworn by his instructing solicitor, Mr Stephen Blanks. Those affidavits are dated 6 July 2021, 23 August 2021, 26 August 2021 and two affidavits dated 13 September 2021.

33    The Minister relied upon two bundles of documents (which were tendered by the applicant) (Exhibits 1 and 2) and Security Assessment Determination No 3 (SAD No 3), which is Exhibit A. The Preamble to SAD No 3 states that it provides “guidance to the decision maker in the making of security assessments under Part IV of the [ASIO Act]”. The Preamble further states that SAD No 3 is to be applied when a security assessment is undertaken pursuant to Pt IV of the ASIO Act and the decision maker considers that the assessment process is likely to result in an adverse or a qualified security assessment, as defined in s 35 of the ASIO Act. SAD No 3 is dated 29 May 2020, hence it was in force when the QSA was made, but not when the earlier ASA was made.

The parties’ submissions

34    In order to contain the length of these reasons, I will address the parties’ primary submissions in the next section of my reasons for judgment.

Consideration and determination

35    It is common ground that the power conferred by s 501C(4) is coupled with a duty to consider any representations made in accordance with the requisite Ministerial invitation and, if satisfied that the person passes the character test, there is also a duty to revoke the original decision to refuse or cancel the visa (see Yasmin v Attorney-General (Cth) [2015] FCAFC 145; 236 FCR 169 and Roach v Minister for Immigration and Border Protection [2016] FCA 750).

36    The parties divided, however, in respect of each of the four general issues (see [1] above) which require determination. I will address those issues in turn.

A. Is the Cancellation Decision invalid?

(a) The Minister’s use of the ASA

37    In brief, the applicant contends that the Cancellation Decision is invalid because, in deciding that cancellation was in the national interest and in exercising the residual discretion to cancel, the Minister failed to consider the nature and seriousness of the risk posed by the applicant to the Australian community, citing Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [66] per Rangiah J (North and Jessup JJ agreeing) and Roach at [73]-[84] per Perry J. He contended that it was insufficient for the Minister to consider the risk posed by the applicant at a broad level and that it was necessary that the Minister engage with the question of risk at a level which was personal to the visa holder, citing Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417 at [45], [49] and [58] per Bromberg J (as approved in both Moana at [61] and Roach at [85]-[88]).

38    The applicant contended that the Minister’s consideration of the risk posed by the applicant to the Australian community was limited to the statement at [43] of the Minister’s statement of reasons accompanying the Cancellation Decision, namely that the applicant “poses a risk to the Australian community in light of ASIO’s assessment that he is directly or indirectly a risk to security”. The applicant complained that the Minister erred in not considering how a threat to border integrity may constitute a risk to the Australian community.

39    The applicant emphasised the limited nature of the material on this topic which was before the Minister when he made the Cancellation Decision. He submitted that neither the Department’s brief nor the ASA descended into any detail on the matter. The ASA referred to “the protection of Australia’s territorial and border integrity from serious threats” as the relevant head of security and it concluded that the applicant was “directly or indirectly a risk to security … and that the requirements of security made it necessary or desirable” for the applicant’s visa to be cancelled. The applicant emphasised that, on the material before the Minister, he would not have even known that the applicant had been involved in people smuggling.

40    The applicant contended that the absence of any relevant information about matters which were personal to the applicant in terms of assessing the risk he posed to the Australian community meant that the Minister had failed to have regard to a mandatory relevant consideration. Alternatively, he complained that the Minister’s conclusion at [43] of the statement of reasons in support of the Cancellation Decision was legally unreasonable or seriously irrational because there was no intelligible basis for the Minister’s conclusions (citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ). In addition, the applicant complained that there was jurisdictional error because, instead of the Minister personally considering that mandatory relevant consideration, he simply adopted ASIO’s view on the matter. This was said to constitute acting under dictation.

41    There are two basic reasons why the applicant’s challenge to the validity of the Cancellation Decision should be rejected. First, I find that the Minister did consider the risk posed by the applicant to the Australian community. The Minister noted at [17] of his statement of reasons that protecting Australia’s security “is clearly a matter going to the national interest” and he noted that ASIO exists to protect the Australian community from serious threats to Australia’s security. The Minister made express reference at [20] to the ASA and that the relevant head of security was stated to be the protection of Australia’s territorial and border integrity from serious threats. Express reference was also made to ASIO’s recommendation that the applicant’s visa be cancelled. The Minister explained at [21] that cancellation of the visa was in the national interest, having regard to the terms of the ASA and including ASIO’s positive recommendation that the visa be cancelled in the interests of security.

42    It may be accepted that the Minister was unaware of the particulars of the applicant’s involvement in people smuggling, but he was informed that the relevant “head of security” identified in the ASA for the purposes of the definition of “security” in s 4 of the ASIO Act was the protection of Australia’s territorial and border integrity from serious threats. In my view, the Minister was entitled to be satisfied, taking into account the contents of the ASA, that the applicant posed a serious risk to national security. I accept the respondents’ submission that it was open to the Minister to place significant weight on an ASA in making a visa cancellation decision under s 501(3) (see s 501(6)(g)). As submitted by the respondents, consistent with the observations of Flick and Perram JJ in Jaffarie v Director-General of Security [2014] FCAFC 102; 226 FCR 505 at [71], the ASA could only have been validly issued if ASIO assessed the applicant to be a “serious threat” to Australia’s territorial and border integrity, and therefore the Minister was entitled to be satisfied the risk posed by the applicant to security was of a serious nature.

43    I reject the applicant’s contention that, where the Minister relies upon an ASA rather than embarking upon an independent assessment of the risk posed by a person, this amounts to acting under dictation. The Migration Act makes clear that ASIO has a significant role in advising the Minister as to the threat posed by a particular person. The applicant’s complaint on this issue is, in substance, a complaint about the weight that the Minister gave to the ASA. As I have already explained, in the particular circumstances of this case, it was reasonably open to the Minister to place the emphasis which he did on ASIO’s assessment that security requirements made it necessary or desirable to cancel the visa. The weight which the Minister gave to the ASA is consistent with the fact that s 501(6)(g) of the Migration Act expressly provides that one circumstance where a person fails the character test is where the person has been assessed by ASIO to be directly or indirectly a risk to security (see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133 at [89] per Lee and Wheelahan JJ). Neither Moana nor Roach support the applicant’s case. Neither of those cases dealt with an adverse security assessment under s 501(6)(g). Unlike the circumstances in those two proceedings, it is clear from paragraphs such as [43] of the Minister’s statement of reasons that he did consider the risk to the Australian community.

44    Secondly, even if my analysis above is incorrect, the applicant has not persuaded me that there is a realistic possibility that the Minister’s Cancellation Decision could have been different if the error had not occurred (see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ). That is because the ASA was unequivocal in stating that, in ASIO’s opinion, the applicant was directly or indirectly a risk to the protection of Australia’s borders from serious threats.

(b) Was the Minister required to consider non-refoulement obligations under the specific rubric of “national interest”?

45    The Minister found that the Cancellation Decision would result in a requirement that the applicant be refouled to his country of origin as soon as reasonably practicable in breach of Australia’s international obligations. The applicant contended that the Minister failed to take that matter into account in considering whether the Cancellation Decision was in the national interest. Relying on Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at [172]-[174] per Besanko J (with whom Allsop CJ, Kenny, Kerr and Charlesworth JJ agreed), the applicant contended that, in proceeding as he did the Minister exceeded his jurisdiction because he did not “attain his state of satisfaction [as to the national interest] reasonably”. The applicant contended that jurisdictional error occurred because the Minister had not taken into account the fact that Australia would be in breach of its non-refoulement obligations in his assessment of the national interest. The applicant contended that the only matter taken into account by the Minister in assessing the national interest was the existence and content of the ASA.

46    The applicant contended that the Court should not conclude that, had the Minister considered all relevant matters, his assessment of the national interest could not have been different. He contended that the ASA was a bare conclusory document unaccompanied by any advice and there is nothing to suggest the Minister would inevitably give it more weight than the convictions for child sexual assault which were the basis of the assessment in CWY20 (at [29] and [66]). Citing CWY20 at [172] per Besanko J, the applicant submitted that had the Minister assessed the national interest taking all mandatory relevant matters into account “there was at least a possibility that [the Minister] may have given different weight to the national interest when balancing it with other considerations … relevant to the exercise of his discretion” and there was “at least a possibility that [the Minister] may have reached a different conclusion on whether he was satisfied that the refusal was in the national interest”.

47    The Minister did not dispute that Australia’s non-refoulement obligations were not considered as part of his assessment of the national interest here (but were considered in respect of the residual discretion). That acknowledgement was properly given but it does not mean that the applicant should succeed on the basis of the Full Court’s decision in CWY20. I accept the respondents’ submission that, putting to one side for the moment the question of materiality, CWY20 is distinguishable on at least the following two grounds:

(a)    CWY20 dealt with s 501A of the Migration Act, which empowers the Minister to substitute a less favourable decision for the one reached by a delegate or the Administrative Appeals Tribunal. It is plain from the terms of that provision that an assessment as to the national interest is an essential condition to the exercise of that significant power. The Minister also has to be satisfied under s 501(3) that it is in the national interest to refuse or cancel a visa. That assessment of the national interest arises under s 501(3), where the decision to refuse or cancel a visa may be made without complying with natural justice requirements. As the respondents pointed out, the Minister also has a power to refuse or cancel a visa under s 501(2), where natural justice requirements do apply. There is force in the respondents’ submission that, given the structure and terms of ss 501(2) and (3), it is open to the Minister to consider the issue of Australia’s non-refoulement obligations as part of the residual discretion under s 501(3) just as it would be open to adopt that course if the Minister had elected to proceed under s 501(2).

(b)    It is also important not to overstate the implications of CWY20. In particular, apart from noting that that proceeding related to s 501A and not s 501(3), it is also important to note the emphasis given to the particular circumstances of that case. As Besanko J said at [149] and [150]:

149    The primary judge emphasised the significance of the particular circumstances of the case before him on a number of occasions in his reasons (see, for example, PJ at [119] and [132]). He identified those particular circumstances as the fact that the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the material before the Acting Minister, and the Acting Minister’s findings that Australia owed non-refoulement obligations to the respondent and that refusing him the visa would put Australia in breach of those obligations because necessarily the respondent would have to be returned to his country of origin where there was an accepted risk that he would be killed. The Acting Minister’s decision to refuse to grant the respondent a visa meant that the respondent would be refouled in breach of Australia’s obligations under international law.

150    Those circumstances will not be present in every case in which the Minister is considering the exercise of the power in s 501A(2) of the Act and, as the primary judge noted, it was not argued before him that the implications of Australia breaching its international non-refoulement obligations was a mandatory relevant consideration in the consideration of the national interest pursuant to s 501A(2)(e) of the Act.

48    Contrary to the supplementary written submissions filed with leave by the applicant after the hearing, I do not consider that the Full Court’s decision in ENT19 v Minister for Home Affairs [2021] FCAFC 217 advances his claim that the Court should find that the Minister repeated the same error here as in CWY20. That is for three reasons. First, ENT19 arose in a different legislative context, namely, that relating to the Minister’s refusal to a grant a Safe Haven Enterprise visa, where the Minister was not satisfied (as required by r 790.227 of the Migration Regulations) that granting the visa was in the national interest. Where that criterion was not met, the Minister was obliged to refuse the visa. In contrast with the position under s 501(3), there was no discretion.

49    Secondly, in contrast with the legislative context in ENT19, there was no immediate requirement to remove the applicant from Australia once the Cancellation Decision was made. That was because of the statutory provisions relating to the question whether that decision should be revoked. This different decision-making process suggests that the issue of non-refoulement need not be considered as part of the national interest assessment under s 501(3).

50    Thirdly, and perhaps most importantly, unlike the position in ENT19, the Minister did consider Australia’s non-refoulement obligations in making the Cancellation Decision. That consideration occurred in respect of the Minister’s assessment of how the residual discretion under s 501(3) should be exercised and not under the rubric of the national interest.

51    Even if, contrary to the above, ENT19 is not distinguishable on the grounds set out above, I would find that there was no material error in this respect so as to constitute a jurisdictional error (see MZAPC at [2], [35], [39] and [60]). That is because, having regard to ASIO’s firm assessment in the ASA that the applicant was directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act, upon which the Minister relied, there was no realistic possibility that consideration of Australia’s non-refoulement obligations under the rubric of the “national interest” (as opposed to as part of the Minister’s residual discretion) could have led to a different outcome. This case is factually far removed from the circumstances in either ENT19 or, indeed, CWY20.

B. Did ASIO exceed its statutory functions in issuing the QSA?

52    In brief, the applicant contended that the combined effect and operation of ss 17, 35 and 37(1) of the ASIO Act was to limit ASIO’s authority to include in the QSA a “qualification or comment” which related to, or could relate to, the question of whether the requirements of security made it “necessary or desirable” for the applicant’s visa to be cancelled and that were related to security. He relied upon extracts from the Royal Commission on Australia’s Security and Intelligence Agencies conducted by Justice Hope and, in particular, the following statement at [304] of the Commission’s fourth report concerning ASIO:

In providing security assessments about a person, in “immigration” cases, as in other cases, ASIO should not communicate any information about him or her that it has not assessed as “relevant to security” as that term is used in s 5 of the ASIO Act. Specifically, ASIO should indicate, in terms unmistakably clear, the relevance to security of any information, including personality and character information, provided by it about a person in response to a request for security assessment.

53    As noted at [7] above, the applicant pointed to various statements in the QSA which he contended were in excess of ASIO’s statutory functions because the statements did not, and could not, relate to the question whether security requirements made it “necessary or desirable” for his visa to be cancelled.

54    This issue raises the following sub-issues:

(a)    the meaning of “relating to” in s 17(1)(c);

(b)    whether ASIO’s failure to comply with its enabling legislation invalidates the Non-revocation Decision; and

(c)    the utility of granting declaratory relief.

55    I will address each of these sub-issues in turn.

(a) The meaning of “relating to”

56    The phrase “relating to” in s 17(1)(c) is broad. It is well settled that the phrase “relating to” is “one of wide import” and that the degree of connection required between two subject matters joined by that phrase “is ordinarily to be determined by reference to the text, context, legislative purpose and history of the provision and, of course, the facts of the case” (Minister for Home Affairs v DMA18 as Litigation Guardian for DLZ18 [2020] HCA 43; 95 ALJR 14 at [43]).

57    In construing s 17(1)(a) of the ASIO Act, which provides that one of ASIO’s functions is “to obtain, correlate and evaluate intelligence relevant to security”, Mason J made the following relevant observations in Church of Scientology Inc v Woodward [1982] HCA 78; 154 CLR 25 at 60-61:

… Intelligence is relevant to security if it establishes or tends to establish that a person suspected of being a security risk is, or is not such a risk. Moreover, it may well be that intelligence is relevant to security, so long as it is obtained for the purpose of determining whether a person alleged or thought to be a security risk, is such a risk. … Intelligence is relevant to security if it can reasonably be considered to have a real connexion with that topic, judged in the light of what is known to ASIO at the relevant time.

Section 17(1)(c) should be construed consistently with those observations. That is, a “matter” will be one “relating to” security if it establishes or tends to establish that a person suspected of being a security risk is, or is not, such a risk.

58    This construction is consistent with the purpose of the provision. In Jaffarie, Flick and Perram JJ held that a confined construction of the definition of security in s 4 of the Act “could well set ‘the bar too high’ and frustrate the ability of ASIO to properly monitor and assess threats to Australia’s national interests” (at [65]) (see also SDCV v Director-General of Security [2021] FCAFC 51; 389 ALR 372 at [175] per Bromwich and Abraham JJ). Similar observations are applicable to s 17(1)(c): a narrow reading of “relating to” would frustrate the ability of ASIO to assess threats to security and furnish Commonwealth agencies with security assessments relevant to their functions and responsibilities.

59    As submitted by the respondents’, each of the statements identified by the applicant in the QSA as set out at [7] above formed part of ASIO’s assessment as to the applicant’s credibility having regard to whether the applicant provided truthful answers at his first SAI. That was a matter directly connected to ASIO’s assessment of the likelihood that he would engage in people smuggling activities in the future (including the truthfulness of answers provided at the second SAI) as well as a matter which SAD No 3 (cll 8.7.1(c) and 12.3.1) required those conducting the assessment to take into account.

60    I reject the applicant’s contention that ASIO was not entitled to include in the QSA matters regarding what he described as “historic” events concerning the reliability of statements made at the first SAI or whether the applicant had been a people smuggling facilitator for the Reunion Island venture. As Rares J said in MYVC v Director-General of Security [2014] FCA 1447; 234 FCR 134 at [53], it is ordinarily an “integral part of the process of making a determination concerning the chance of something occurring in the future that the decision-maker will arrive at conclusions concerning past events” (see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

61    The statements complained of in the QSA are properly viewed as statements “relating to” the protection of Australia’s territorial and border integrity from serious threats within the meaning of s 17(1)(c) (including explaining why ASIO no longer held an assessment that the applicant was a risk to security as defined in s 4(aa)) and could be included in a security assessment issued under s 37(1).

(b) The effect of any non-compliance of ASIO with its enabling legislation on the Non-revocation Decision

62    The question whether reliance by the Minister on information provided inconsistently with the ASIO Act leads to the invalidity of the Non-revocation decision by the Minister must be resolved as a question of statutory construction.

63    I accept the Minister’s submission that the power to not revoke a cancellation decision under s 501C(4) is not made contingent, either explicitly or implicitly, on the existence of a security assessment issued consistently with the requirements of the ASIO Act or otherwise. The power can be distinguished from that to cancel a visa where a person has been assessed by ASIO to be a risk to security. In that context, s 501(2), read with s 501(6)(g), makes it clear that an invalidly made ASA would invalidate the cancellation decision. In other words, compliance by ASIO with the ASIO Act is not an “express or implied condition” of the valid exercise of the power under s 501C(4) not to revoke the cancellation decision. That is not to say that reliance upon an invalid ASA or QSA by the Minister could not be relevant to the reasonableness or otherwise of a decision to refuse to revoke under s 501C(4). Rather, on the assumption the QSA was invalid in this case (contrary to what I have found above), this may not be enough in and of itself to result in invalidity of the Non-revocation Decision made under a different statute.

(c) Utility of granting declaratory relief

64    Even on the assumption that ASIO had exceeded its statutory function in making various statements in the QSA, given the Non-revocation Decision would not be invalid, I find that the applicant would not be entitled to declaratory relief in any event. That is because the Court would not make a bare declaration that has no foreseeable consequences for the parties (see, for example, Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ and Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [52] per Gaudron J).

C. Is the Non-revocation Decision invalid because of procedural unfairness, legal unreasonableness or irrationality?

65    This raises the following sub-issues, which I will deal with in turn:

(a)    the proper construction of s 501(6)(c) of the Migration Act;

(b)    whether there was procedural unfairness; and

(c)    whether the Non-revocation Decision is invalid for legal unreasonableness or irrationality.

(a) Proper construction of s 501(6)(c) of the Migration Act

66    Section 501(6)(c) provides that for the purposes of s 501, a person does not pass the character test if:

(c)    having regard to either or both of the following:

(i)    the person's past and present criminal conduct;

(ii)    the person's past and present general conduct;

the person is not of good character; or

67    Evidently, the critical matter for the Minister’s state of satisfaction under s 501(6)(c) is whether the person is “not of good character”. That assessment is made having regard to either or both of the person’s past and present criminal conduct and the person’s past and present general conduct. The statute permits the Minister to have regard to either criminal or general conduct, or alternatively both criminal and general conduct. These matters do not of themselves establish that a person does not pass the character test. Rather they are indicia of a want of good character.

68    This construction of s 501(6)(c) is consistent with Lee J’s reasons in Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774; 83 ALD 411 at [52], as subsequently adopted on appeal — see Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; 141 FCR 552 (Godley FFC) at [34] per Madgwick, Lander and Crennan JJ, with which I respectfully agree:

A finding that a person is “not of good character” requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone.

69    It is also relevant to note the observations of the Full Court (Burchett, Branson and Tamberlin JJ) in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 which considered the proper construction of a materially similar (now repealed) statutory provision of the Migration Act, under which the Minister had the power to refuse to grant a visa to a person if the Minister was satisfied that the person was not of good character having regard to the person’s “past criminal conduct” or “general conduct”. While it was observed that the Administrative Appeals Tribunal had erred in considering certain “criminal conduct” as “general conduct”, the Full Court at 196 found that this did not invalidate its decision (emphasis added):

… no importance can be attached to the fact that some of the conduct, which was actually “criminal conduct” within the meaning of subpar (i), was considered on the basis that it was made relevant by subpar (ii). … A misnomer cannot be of importance unless it affects the substance. Here it did not.

(b) Whether there was procedural unfairness

70    In discharging the obligation to afford procedural fairness to the applicant, the Minister was required “to bring to [the applicant’s] attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it” (Kioa v West [1985] HCA 81; 159 CLR 550 at 587 per Mason J). The determination of what procedural fairness requires in any given case must be informed by the statutory context (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26] and Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 at 503-504 per Kitto J). Consistently with the above, the Minister was required to bring to the applicant’s attention any matter that might be relevant to the Minister’s assessment of whether the applicant “is of good character”.

71    The applicant submitted that he was denied procedural fairness because the Minister failed to put him on notice of the following three matters. First, the applicant submitted that the Non-revocation Decision was made on the basis that the applicant’s involvement in people smuggling constituted criminal conduct. The applicant pointed out that he had been informed by the Department’s letter dated 20 October 2020 that the Minister may have regard to his past conduct in being involved in a people smuggling venture between Indonesia and Reunion Island (a French department). The letter said that “the Minister may have regard to this in relation to your past general conduct” under s 501(6)(c)(ii) (emphasis added). The Minister defended the Non-revocation Decision on the basis that there was a finding that the applicant’s involvement in that particular people smuggling venture relating to Reunion Island constituted “criminal conduct” under s 501(6)(c)(i) and thereby indicated “contempt and disregard for the law” and demonstrated bad character. The applicant complained that he was not put on notice that his involvement in the Reunion Island venture would be regarded as constituting criminal conduct. Rather, he was simply notified that his involvement in that venture was relevant to past general conduct. The applicant submitted that this constituted procedural unfairness, citing Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 at [29]-[30] and [36]-[39] per Allsop CJ.

72    As the Minister acknowledged, the language in the relevant part of her statement of reasons is a “little loose” in referring to the people smuggling activities in which the applicant was involved as both “criminal conduct” and “general conduct”. However, I accept, for the following three reasons advanced by the Minister, that this looseness of language did not involve any denial of procedural fairness.

(a)    A finding that the applicant had committed a crime was not a reason, let alone a “significant reason”, for the conclusion that the applicant was “not of good character”. Rather, the Minister found that “his involvement in people smuggling, dishonesty when interviewed by ASIO, and his period in the community where although he did not receive any criminal convictions he was involved in planning people smuggling ventures” was “not according to moral principle” (at [35]). It would have been immaterial for the applicant to attempt to demonstrate that his conduct fell outside the provisions of the Criminal Code Act 1995 (Cth) criminalising people smuggling. The Minister was obviously aware that the applicant had not been convicted of a criminal offence and stated as much (at [35]).

(b)    In any event, the applicant was put on notice that the Minister may consider the ASIO assessment that he was “a people smuggling facilitator”. The applicant’s submissions to the Minister referred expressly to the territorial limitations to the offences in Ch 4 of Div 73 of the Criminal Code. Accordingly, the applicant was on notice that people smuggling is a crime under Australian law. Had the applicant wished to make submissions to the Minister to the effect that his conduct fell outside the applicable provisions of the Criminal Code, he was given a fair opportunity to do so.

(c)    In this light, and consistently with the observations in Baker at 196 (see [69] above), any mischaracterisation of “general conduct” as “criminal conduct” is of no importance. It made no substantive difference in the particular circumstances here.

73    For these reasons, this case is also distinguishable from Degning. In Degning, the applicant was not put on notice that his general conduct or that his dishonesty in relation to passenger cards was in issue for the Minister’s consideration under s 501(6)(c), nor its connection to the applicant’s risk of re-offending. The risk of re-offending in Degning “was the critical issue” (emphasis in original) (at [37] per Allsop CJ). In contrast, the finding that the applicant in this case had engaged in criminal conduct did not form a significant reason for the Minister’s conclusion that the applicant was not of good character. Further, the applicant in this case was on notice that his conduct in relation to the Reunion Island venture was being considered by the Minister in relation to the very ground under which the Minister was satisfied he did not pass the character test, namely that he was not of good character (s 501(6)(c)).

74    Secondly, the applicant submitted that he was not given notice of a possible finding that he had been dishonest and intentionally misleading at the first SAI. I reject this contention. As the Minister submitted, the letter from the Minister’s delegate dated 20 October 2020 expressly referred to the statement in the QSA that the applicant had made “misleading comments” at the first interview. The QSA itself identified the information provided during the second interview which was contradictory with the information provided during the first interview (see at [12]). The QSA went on to say that the applicant “gave a more thorough account of his involvement in the Reunion Island venture at the second SAI”, and that “the change in his account indicates [the applicant] withheld information and downplayed his involvement in his first SAI in June 2019” (at [18]). That was sufficient to put the applicant on notice that his dishonesty was in issue. It was not necessary for the applicant to be given the transcripts of the SAIs themselves in order for him to know the case he had to meet, especially given that the Minister did not rely upon them.

75    Thirdly, the applicant submitted that, in concluding that the applicant had demonstrated a “low standard of moral principle”, he was not given notice that the Minister had and may rely upon specialised knowledge to the effect that all people smuggling ventures took advantage of and exploited people seeking protection.

76    As the High Court stated in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17]:

If the Minister exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known. By “no evidence” this has traditionally meant “not a skerrick of evidence”.

77    The Minister did not rely on any “specialised knowledge” in this regard. The Minister’s observation at [12] of her statement of reasons was a broad description of the evils of people smuggling which are generally acknowledged and are essentially based on common sense and human experience (as to which, see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [82] per Allsop CJ, Besanko and O’Callaghan JJ). The Minister was entitled to take administrative notice of these evils. The generalisation must have been known to both the applicant and his representatives. They had every opportunity to make submissions about this matter had they wished. There was no procedural unfairness.

(c) Whether the Non-revocation Decision is invalid for legal unreasonableness or irrationality

78    The three matters which were the subject of the applicant’s complaint of procedural unfairness were also claimed by him to involve findings which were unreasonable or irrational. This was said by him to be the case in circumstances where:

(a)    The finding that he had engaged in criminal conduct was made notwithstanding that the applicant had committed no crime of people smuggling under s 233A of the Migration Act because there was no entry or proposed entry into Australia and there was no evidence that the Reunion Island venture was conducted in breach of any law of any country, nor that the applicant had knowledge of the laws of Reunion Island as would be necessary for there to be an offence under s 73.1 of the Criminal Code.

(b)    The findings of dishonesty were unsupported by any evidence and the Minister had no knowledge of what the applicant said to ASIO which provided the basis for ASIO’s statement that the applicant had been dishonest or misleading. All the Minister had before her was ASIO’s expression of opinion on these matter.

(c)    Nor was there any evidence to support the Minister’s findings concerning the evils of people smuggling. The applicant acknowledged that this may be the case with some instances of people smuggling but that is not invariably the case, nor does it specifically refer to people smuggling to Reunion Island.

79    It is apt to note the recent observations of the Full Court in Djokovic at [32]-[35]:

32.    The nature of jurisdictional error and legal unreasonableness was described by Allsop CJ in Stretton at 3–6 [2]–[13]. See also Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at 170–172 [54]–[65].

33.    The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].

34.    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

35.    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

80    For the following reasons, largely adopting the Minister’s submissions, I reject the applicant’s complaints of legal unreasonableness or irrationality.

81    First, consistently with my finding at [72](a) above, the Minister did not find that the applicant had engaged in criminal conduct. Accordingly, the applicant’s claim that such a finding was unreasonable or irrational does not arise.

82    I also reject the second aspect of the applicant’s claims of legal unreasonableness or irrationality. Contrary to the applicant’s contentions regarding the finding that he had been dishonest or misleading in his dealings with ASIO, the Minister was entitled to rely on what was said in the QSA. The Minister was not bound to proceed only on “admissible evidence”. I accept the Minister’s submission that what was said in the QSA (at [18], read with [12]) supported the Minister’s finding regarding the applicant’s dishonesty.

83    Finally, I reject the applicant’s claims of legal unreasonableness or irrationality in respect of the Minister’s findings regarding the evils of people smuggling. The Minister’s observation at [12] of her statement of reasons was self-evidently a generalisation which the Minister was entitled to make, without referring to any particular evidence in support (see Djokovic at [82]). The Minister had responsibility for administering the Migration Act, which legislation contains several provisions which are specifically directed at discouraging and punishing people smuggling. It was well open to the Minister to find, as she did, that people smuggling was a serious matter in the context of administering the Migration Act.

D. Is the Non-revocation Decision invalid because the Minister relied on a character ground different from the one relied upon in making the Cancellation Decision?

84    The issue is whether on its proper construction s 501C(4) compels the Minister to revoke the visa cancellation if the applicant satisfies the Minister that he passes the character test by reference to the reasonable suspicion that provided the original basis for cancellation or does he bear a burden to satisfy the Minister that none of the sub-sections in s 501(6) apply.

85    Unsurprisingly, the parties did not dispute that the task of statutory construction involves consideration of text, context and purpose.

(i) The applicant’s preferred construction

86    The applicant’s preferred construction relied primarily on three matters. The first is the relevance of the “original decision” to the construction of s 501C(4). The second emphasised the lack of discretion in relation to revocation and the unreasonable results which could flow from a construction of s 501C(4) which permitted the Minister to rely upon a character ground different to that relied upon in cancelling a visa under s 501(3). The third is that ss 501(2), 501(3) and 501C were said to be “cognate provisions”. The applicant pointed to authority with respect to cancellation of visas under s 501(2) (to which natural justice applies) which he said supported the proposition that a visa holder who is suspected, pursuant to s 501(2)(a), of not passing the character test, need only satisfy the Minister for the purpose of s 501(2)(b) that the person passes the character test by reference to the “grounds” under s 501(6) in respect of which the Minister held that suspicion: see Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 386 ALR 200 at [35]-[41] and Godley FFC at [54].

87    As to the first of those matters, the essence of the applicant’s contention is that the concept of the “original decision” suggests that, because it confines the notice and invitation required to be given under s 501C(3), it necessarily confines the scope of the task under s 501C(4). As the Minister pointed out, a difficulty with that proposition is that the particulars of the relevant information are not confined to the actual grounds for the original decision but can also include alternative grounds that “would be the reason for making the original decision”.

88    Secondly, it is important to bear in mind that the invitation to make representations under s 501C(3)(b) is not confined to notice of the original decision nor particulars of the relevant information. The invitation to make representations provided for in s 501C(3)(b) is quite separate from the matters the subject of s 501C(3)(a). As the Minister submitted, the invitation “looks forward to the task for which those representations are relevant”, being the Minister’s consideration whether or not to revoke the original decision.

89    As to the applicant’s third contention, see [98] below.

(ii) The Minister’s preferred construction

90    In response to the applicant’s reliance on what is said to be an incongruity or unfairness presented by the Minister relying at the revocation stage on a different limb of the character test from that relied upon in the original Cancellation Decision, the Minister submitted that it was the Parliament (and not the Minister) who was responsible for confining the circumstances in which a person is entitled to seek the revocation of an original decision which was made in the national interest. The Minister further submitted that while it may be relevant in some cases to have regard to unreasonable results in carrying out the task of statutory construction, this principle applies only if more than one construction is open, citing Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [45] per French CJ, Kiefel, Bell and Keane JJ. There was no constructional choice here because the terms of s 501C(4) are intractable, so submitted the Minister.

91    The Minister contended that it is significant that the Cancellation Decision is one which necessarily has been arrived at because the Minister was satisfied that such a decision was “in the national interest”. Noting the breadth of that expression as acknowledged by the Full Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [156] per Griffiths, White and Bromwich JJ, the Minister submitted that it was understandable that the grounds for revocation are strictly confined. This was to be contrasted with the wider scope of s 501CA(4), which relates to the revocation of a different kind of original decision, namely one made under s 501(3A), where the national interest does not arise. Accordingly, revocation under s 501CA(4) may occur for any reason and not merely because the person persuades the Minister that the person passes the character test or that there is another reason why the original decision should be revoked (see s 501C(4)(b)).

92    In respect of the text in s 501C(4), the Minister emphasised the following matters:

(a)    Attention is directed not merely to a passive satisfaction, but to an active satisfaction brought about by the person who requests the revocation, indicating that the person whose visa has been refused or cancelled bears an onus of persuading the Minister by representations made in accordance with an invitation.

(b)    The person must persuade the Minister that they “pass” the character test. The person’s burden is not to bring about a satisfaction that the original decision was wrongly made, nor does the person carry a burden of bringing about a satisfaction that he or she “does not fail” the character test on some specified ground.

(c)    The person is required to persuade the Minister that they pass the character test “as defined by section 501”. The expression “passing the character test” appears at the very end of sub-section 501(6), where it is stated: “Otherwise the person passes the character test” (emphasis in original). Thus, a person passes the character test as so defined if, and only if, they do not fail (or not pass) the character for any of the reasons specified in s 501(6). The Minister contended that this construction was supported by caselaw relating to identical language in s 501CA(4)(b)(i), citing XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 at [90] per Burley J and PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 at [58]-[61] per Middleton J.

93    In support of this construction, the Minister submitted that it is consistent with the fact that, by operation of s 501C(3)(a), the Minister is obliged to give notice to the person not only of the original decision but also provide particulars of the “relevant information” as defined in s 501C(2). The Minister emphasised that the definition of “relevant information” in s 501C(2) is not confined simply to the basis for the original refusal or cancellation decision, but rather, with some limitations, with reference to “information … that the Minister considers would be the reason, or a part of the reason, for making the original decision” (emphasis added), citing BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91 at [97] per Banks-Smith and Jackson JJ. This meant that the use of the “future conditional” in that provision permitted the Minister to give notice of matters which would justify refusal or cancellation even though they were not in fact relied upon, with a consequence that the person could then frame their representations accordingly. The Minister submitted that BDS20 was directly inconsistent with the applicant’s preferred construction.

94    It is well to set out the Minister’s summary of his position regarding the statutory construction issue (at [28] of his original outline of written submissions):

The construction for which the applicant contends requires the statutory language to be distorted in too many respects to too great a degree. In any event, there is no contextual reason to impose this distortion on the provision. Its ordinary meaning reflects Parliament’s intention to closely confine the circumstances in which the Minister may revoke a refusal or cancellation decision in response to personal representations of a visa applicant or visa holder, where the original decision was made in the national interest.

(iii) Resolution

95    The Minister’s preferred construction is supported by Tracey J’s decision in Graham v Minister for Immigration and Border Protection [2016] FCA 682; 246 FCR 439 at [60]-[69]. There, Tracey J rejected a contention made by the then Minister that it was implicit in the scheme of s 501C that the “character test” referred to in s 501C(4) refers to that element of the test that was relied upon by the Minister in making the original decision. It is well to set out in full Tracey J’s reasons at [63] to [69] for rejecting that contention (emphasis added):

63.    The Minister’s power to cancel a visa under s 501(3) of the Act is conditioned upon him reasonably suspecting that the visa-holder “does not pass the character test”: see s 501(3)(c). The Minister may so act without first according the visa-holder natural justice: see s 501(5). The opportunity to make submissions is to be afforded after the decision has been made. If the Minister harbours the necessary suspicion and decides to cancel the visa s 501C is engaged: see s 501C(1)(b). Section 501C(3) requires that the Minister must promptly advise the visa-holder of the cancellation decision. A written notice of the decision must be provided together with “particulars of the relevant information”. “Relevant information” is defined, in s 501C(2) to be information (other than non-disclosable information) that the Minister considers “would be the reason, or a part of the reason,” for making the cancellation decision and is specifically about the visa-holder or another person.

64.    As I observed in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [40], in relation to the same definition of “relevant information” appearing in s 501CA(2), the Minister is required to expose so much of his reasons as he is permitted to disclose for making his decision to cancel the visa. Given that the Minister will know why he has made the decision the use of the words “would be” are somewhat curious.

65.    The particulars of the relevant information are to be accompanied by an invitation to the visa-holder to make representations to the Minister about “revocation of the original decision”.

66.    The Minister’s power to revoke the original decision is enlivened if the visa-holder makes representations in accordance with the Minister’s invitation and “satisfies the Minister that [he or she] passes the character test (as defined by section 501)”.

67.    The construction of s 501C(4)(b), for which the Minister contends, ignores or requires a significant reading down of the words in parenthesis which appear immediately after the reference to “the character test”. The Minister cannot exercise his power to revoke an earlier decision to cancel a visa unless he is satisfied that the visa-holder passes the character test as it is defined in s 501. That definition is to be found in s 501(6), read with subsection (7). Section 501(6) makes plain that the person will not pass that test if any of the criteria contained in the subsection apply. In making his initial decision the Minister may rely on one or more of these criteria. Where, on the facts known to the Minister and to the visa-holder, it is open to the Minister to conclude that the applicant does not pass the character test for additional reasons, there is no necessary inconsistency between the Minister acting for one reason and the visa-holder, when seeking revocation, being required to satisfy the Minister that other potentially relevant criteria do not apply.

68.    The Minister also submitted that the “reasonable suspicion” requirement in s 501(3) referred to a subjective suspicion. If he did not hold that subjective suspicion in respect of a particular ground, even if that ground may, objectively, be satisfied, the power to cancel the visa could not be exercised on that objective ground.

69.    So much may be accepted. It does not, however, follow that, when considering revocation under s 501C(4), the Minister will be confined to a consideration of the subjective suspicions he harboured when cancelling the visa. That decision will have been made without the Minister having received submissions from the visa-holder. When revocation is being considered it is for the visa-holder to satisfy the Minister that he or she passes the character test. To do that the visa-holder must seek to establish that none of the criteria identified in s 501(6) have application to him or her. It would be perverse of the Minister, when deciding whether to revoke a cancellation decision and having been advised that the visa-holder had been sentenced to imprisonment for a period exceeding 12 months, to conclude that he had been satisfied by the visa-holder that the visa-holder passed the character test.

96    In the interests of comity, the Court should apply Graham, unless persuaded that it is “plainly wrong” (on the meaning and application of that expression, see Allsop CJ’s judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [1]-[32]). The relevant principles and approach to apply where the issue arises at the level of an intermediate appellate court (which also generally apply to first instance decisions) may be summarised as follows:

(a)    The expression “plainly wrong” is sometimes used as though it had a fixed content of meaning, which is not correct (at [3]).

(b)    Departing from an earlier Full Court decision should be done cautiously and only when the Court is compelled to conclude that the earlier decision is wrong (at [4]).

(c)    It will only be in infrequent and exceptional circumstances in which a departure from a previous Full Court authority will be justified (at [4]) (quoting Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 at 268-269 per Dawson, Toohey and McHugh JJ).

(d)    Before an intermediate appellate court finds that it is appropriate to overrule one of its earlier decisions, it must entertain a strong conviction as to the incorrectness of the earlier decision (at [7]).

(e)    Much will depend upon the nature of the controversy, the strength of the arguments, and the particular circumstances relating to the case (at [9]).

(f)    A decision to depart from an earlier authority involves not only a consideration of the jurisprudential nature and character of the error that leads to the conviction of past error by the earlier Full Court decision, but also other considerations, such as whether the earlier decision rests on principle carefully worked out and whether the earlier decision had been otherwise acted upon subsequently by other courts (at [10]).

(g)    This does not mean that in all cases a Full Court must, or even should, engage in wholesale reconsideration of earlier intermediate appellate authority whenever a party challenges it as being plainly wrong (this is especially so in the Federal Court in the area of migration law which is so heavily regulated by complex and voluminous legislation which is frequently the subject of contest) (at [13]).

(h)    The considered decisions of Full Courts should not be lightly interfered with (at [14]).

(i)    Relevant considerations in determining whether not to apply an earlier Full Court decision include whether the matter is one of statutory construction, whether the error is clear or patent and not merely a difference of view as to meaning, and whether it has produced unintended and perhaps irrational consequences (at [18]).

(j)    Care should be taken to avoid, especially within a short interval, the re-opening and re-examination of issues that have been substantially decided by an earlier intermediate appellate decision in closely analogous circumstances (at [19]).

(k)    Adherence to earlier Full Court decisions by a later Full Court, unless convinced of error in the earlier decision and where circumstances make it appropriate not to follow the earlier decision, stems from regularity and consistency as attributes of the rule of law (at [22]).

97    Chief Justice Allsop said at [21] that similar principles apply to first instance decisions, save that the basal concept is comity as opposed to the respective positions of intermediate appellate courts in an integrated national judiciary.

98    Nothing submitted by the applicant persuades me that Tracey J’s construction is plainly wrong. I respectfully adopt and apply that construction here and I reject the applicant’s preferred construction. The authorities to which the applicant drew attention (at [86] above) do not require a different conclusion. Neither Makasa nor Godley FFC address the question whether the Minister may rely upon a different character ground in making the Non-revocation Decision to that relied upon for the Cancellation Decision. It necessarily follows that I also reject the applicant’s related contention that the Minister’s reference in her statement of reasons for the Non-revocation Decision to the applicant not passing the character test under s 501(6)(c) did not involve an irrelevant consideration.

Conclusion

99    For all these reasons, the third further amended originating application will be dismissed, with costs.

Associate:

Dated:    31 January 2022