Federal Court of Australia

NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time to make an application for judicial review of the respondent’s decision made on 21 October 2021 to cancel the applicant’s visa.

2.    The application for judicial review be dismissed.

3.    The applicant pay the respondent’s costs of the proceeding.

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 seeks an extension of time to apply for judicial review of a decision of the respondent (the Minister), made under s 501BA of the Migration Act 1958 (Cth) (the Act), to cancel his visa.

2    For the reasons that follow, an extension of time will be granted, but the application for judicial review will be dismissed.

Background

3    The applicant is a citizen of the United Kingdom. He was 61 years of age at the time of the Minister’s decision.

4    On 15 September 2020, the applicant was convicted in the District Court of Queensland of three counts of, “indecent treatment of children under 16 child under 12 years lineal descendant/guardian/carer”, for which he was sentenced to 12 months’ imprisonment, to be suspended for two years after serving two months’ imprisonment. In respect of a fourth count, he was sentenced to two months’ imprisonment and probation for three years.

5    The offences involved the applicant engaging in touching of a sexual nature with his daughter’s nine-year-old friend.

6    On 12 October 2020, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. However, on 1 June 2021, under s 501CA(4) of the Act, the cancellation was revoked by the Administrative Appeals Tribunal (the Tribunal).

7    On 21 October 2021, the Minister made a decision that:

I am satisfied that [the applicant] does not pass the character test, and I am satisfied that it is in the national interest to cancel [the applicant’s] visa. I have decided to exercise my discretion under s 501BA of the Act. I hereby set aside the decision of the Administrative Appeals Tribunal dated 1 June 2021 and cancel [the applicant’s] Class BB Subclass 155 Five Year Resident Return visa.

8    The Minister’s reasons for decision noted that although, under s 501BA(3) of the Act, the rules of natural justice did not apply, he was not prohibited from affording the applicant an opportunity to be heard. The Minister continued:

10.    In this case, I chose to proceed without giving [the applicant] an opportunity to be heard before making my decision. I am cognisant that as a consequence, [the applicant] has not had the opportunity to advance reasons why an adverse decision should not be made, including because of the impact such a decision would have on him and his family. In this instance [the applicant’s] family includes: his partner, minor daughter, [name deleted], his daughter from a previous relationship, [name deleted], and other members of his extended family.

11.    I have, however, given consideration to representations made by [the applicant] in relation to the original decision and in the AAT proceedings which resulted in the AAT revoking the decision to cancel [the applicant’s] visa.

9    The Minister observed that s 501(6)(e) of the Act provides that a person does not pass the character test if a court in Australia has convicted the person of one or more sexually based offences involving a child. The Minister was not satisfied that the applicant passed the character test.

10    The Minister then considered whether he was satisfied that cancellation of the applicant’s visa was in the national interest. The Minister stated, relevantly:

18.    I consider that matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of the criminal conduct. I also find that matters of national interest include a consideration of the risk of a person reoffending or engaging in other serious conduct, and the harm which could flow if such a risk eventuated. Also, in relation to the national interest I take into account the expectations of the Australian community.

11    The Minister indicated that in considering whether cancellation was in the national interest he had regard to, “Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90), made under s 499 of the Act, while recognising he was not bound to comply with Direction 90.

12    The Minister proceeded to consider the seriousness of the criminal conduct, finding:

31.    In considering [the applicant’s] criminal offending, I note that sexual offences are viewed very seriously, regardless of the sentence imposed. Further, crimes committed against vulnerable members of the community, including minor children, are serious. I also consider that sentences imposed by the courts for offences are a further indication of the seriousness of the offending. Dispositions involving the incarceration of the offender are the last resort in the sentencing hierarchy. I find that the term of 12 months that [the applicant] received, reflects the view of the court that his offences were serious ...

13    The Minister then considered the risk that may be posed by the applicant to the Australian community. The Minister concluded:

55.    I have found that the nature of [the applicant’s] conduct is very serious. I consider that any sexual offending against a vulnerable minor child to be serious offending, and have carefully considered this incident in reaching my finding. I have further found that sexual offending against a vulnerable minor child has the potential to cause physical and/or psychological injury to members of the Australian community. On balance I consider there to be a risk, albeit low, that [the applicant] will reoffend. Nevertheless, I considered that, should [the applicant] engage in similar conduct again it may result in psychological and/or physical harm to members of the community. I have given this weight in favour of visa cancellation.

14    The Minister considered the expectations of the Australian community, saying:

56.     As explained in the Direction, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

15    The Minister’s conclusion as to whether he was satisfied that cancelling the applicant’s visa was in the national interest was as follows:

61.    In sum, having regard to the information concerning the serious nature of [the applicant’s] criminal conduct involving sexual offending against a child, my finding regarding the serious risk to the community posed by [the applicant], as well as the expectations of the Australian community in relation to persons involved in such conduct, I concluded that the use of my discretionary power to set aside the original decision of the AAT and cancel the visa, without prior notice, is in the national interest.

16    The Minister turned to consider “other considerations” relevant to his discretion whether to cancel the applicant’s visa. In this context, the Minister considered the best interests of the applicant’s daughter, then aged 14, indicating at [68] that he treated the best interests of the child as a “primary consideration”. The Minister found:

75.    I find that it is in the best interests of his minor daughter, [name deleted] that I do not cancel the visa, however, I have arrived at this conclusion with some hesitancy, given [the applicant’s] conduct against his daughter’s young friend. I have found that other primary considerations outweigh the consideration of the best interests of the minor child, [name deleted].

17    The Minister considered the extent of the impediments that the applicant would face in establishing himself in the United Kingdom and maintaining basic living standards, finding that he would face some impediments and would face practical, financial and emotional hardship due to his age and lack of family and social support.

18    The Minister considered the impact of the cancellation upon the applicant’s immediate family in Australia and found that they would experience emotional, practical and financial hardship.

19    The Minister noted that the applicant had resided in Australia for 43 years, having arrived at the age of 17 years. He found that the applicant’s social and familial links, and the impact on his partner from his removal from Australia weighed significantly in his favour.

20    The Minister acknowledged that the applicant had been contributing positively to the community through his employment and considered that the Australian community may therefore afford a higher level of tolerance of his criminal conduct.

21    However, the Minister concluded that the applicant represented, “an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations”. Accordingly, the Minister decided to exercise his discretion to set aside the decision of the Tribunal and to cancel the applicant’s visa.

The statutory provision

22    Section 501BA of the Act provides:

501BA    Cancellation of visa—setting aside and substitution of non adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

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

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

…

23    The Federal Court has jurisdiction under s 476A(1)(c) of the Act to review a decision of the Minister made under s 501BA of the Act.

24    Section 477A of the Act provides:

477A    Time limits on applications to the Federal Court

(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

(3)    In this section:

date of the migration decision has the meaning given by subsection 477(3).

…

The grounds of review

25    The applicant’s Amended Originating Application contains the following grounds:

1.    The Minister’s state of satisfaction as to whether the cancellation was in the national interest was not reached reasonably in that:

a.    There was no reasonable foundation for a state of satisfaction that cancellation was in the national interest; or

b.    The Minister’s reasons demonstrate no evident and intelligible justification linking the seriousness of the particular offences in question and the particular risk of reoffending to the national interest.

2.    In the alternative, that the Minister misunderstood the nature of the s501BA power, misconceived his duty, failed to apply himself to the question to be decided, or misunderstood the nature of the opinion which he was required to form by:

a.    Failing to consider the national interest question separately from the character test and from the task of exercising a discretion under s501CA; and

b.    Failing to appreciate that it was necessary for there to be something (relating to the national interest) in the nature or seriousness of the Applicant’s criminal convictions or in the circumstances in which his crimes were committed, and the low risk of reoffending, before he could be satisfied that the cancellation was in the national interest.

3.    With respect to the interests of the Australian citizen child aged 14, the Minister erred in his understanding of ‘national interest’ and therefore misconceived his duty, failed to apply himself to the question to be decided, or misunderstood the nature of the opinion which he was required to form by:

a.    reasoning unreasonably – by deferring consideration of the interests of the child to the exercise of his discretion and thereby distorted his decision-making process; or

b.    failing to act on a correct understanding of law - by assessing the question of national interest on an erroneously narrow basis.

(Interlineation and underlining in the original.)

Consideration of the Application for an Extension of Time

26    The applicant’s Application for an Extension of Time was filed on 29 March 2022, some 82 days outside the time limit imposed under s 477A of the Act. The delay must be regarded as lengthy.

27    The applicant deposes that he received the notice of visa cancellation on 2 December 2021. He explains that the delay was caused by a combination of circumstances, including lack of financial resources, lack of availability of counsel during the holiday period, COVID-19 and flooding that occurred in Brisbane from late February 2022. There has been no explanation for the delay between 10 March 2022, when an affidavit and application had been prepared, and 29 March 2022 when they were filed.

28    After the Tribunal’s decision was made on 1 June 2021, the applicant was released from immigration detention. The decision to cancel the applicant’s visa was made without provision of notice that cancellation of his visa was again being considered. After the Minister’s decision was made on 21 October 2021, the applicant was unexpectedly returned to immigration detention, which, I accept, affected his ability to organise and attend to making an application for judicial review of the cancellation decision.

29    In these circumstances, I am satisfied that the applicant has provided a reasonable explanation for his delay, other than for the delay between 10 and 29 March 2022.

30    The Minister does not assert any prejudice as a result of the delay.

31    In determining whether an extension of time should be granted, it is relevant to take into account the merits of the proposed grounds of review. Despite the length of the delay and lack of explanation of part of the delay, I am satisfied that the grounds have sufficient merit to warrant an extension of time.

Consideration of grounds of review

Ground 1: Whether the Minister’s state of satisfaction that cancellation was in the national interest was not reached reasonably

32    Under Ground 1 of the Amended Originating Application, the applicant argues that the Minister’s state of satisfaction that cancellation was in the national interest was not reached reasonably. The applicant argues that there was no reasonable foundation for such a state of satisfaction and that the reasons demonstrate no evident and intelligible justification linking the seriousness of the applicant’s offences and his particular risk of reoffending to the national interest.

33    The applicant submits that, although conduct that led to a person failing the character test can also be relied upon as founding the Minister's satisfaction that it is in the national interest to cancel his or her visa, there must be something in the nature or the seriousness of that conduct, or in its surrounding circumstances, to found that state of satisfaction. The applicant submits that the Minister’s reasons only point to the conduct as being “very serious”, and there being “a risk, albeit low” of the applicant reoffending. The applicant submits that the Court can take judicial notice of the fact that criminals are regularly released into the Australian community after serving sentences for serious offences, but that rates of recidivism indicate that many are released with more than a low chance of reoffending. The applicant poses the question: what makes the applicant’s offending and low risk of reoffending a matter of “national interest”? He submits that this question is not addressed in the Minister’s reasons.

34    The applicant contends that the risk of the applicant reoffending could rationally only relate to a very small number of potential victims in a particular locality, and there is no suggestion of a risk of offending against any Commonwealth law, let alone any Commonwealth law that affects international relations or the relationship between Australia and other States. The applicant submits that the criminal offending is not exceptional in any sense and that the reasons disclose no link between the seriousness of the offending and low risk of reoffending and the national interest. It is submitted that there is no evident and intelligible justification for the Minister’s satisfaction that cancellation is in the national interest.

35    The Minister submits that his satisfaction that it was in the national interest to cancel the visa was based upon the seriousness, circumstances and nature of the applicant’s criminal conduct. The seriousness of the conduct is said to have provided a clear evidentiary foundation for concluding that cancellation was in the national interest.

36    In Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142 at [14], the power under s 501BA(2) of the Act was described by Mortimer J as “draconian”, and by Bromwich J at [39] as, “extreme and largely unaccountable”, but the provision was held to be valid.

37    Section 501A(2) of the Act has been held to confer on the Minister a discretion to set aside a decision made by the Tribunal: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 at [108]. Section 501BA(2) is not relevantly distinguishable. The discretion is enlivened if the Minister is satisfied of two matters: first, that the person does not pass the character test because of the operation of s 501(6)(a) or s 501(6)(e); and second, that cancellation is in the national interest. Section 501BA(3) provides that the rules of natural justice do not apply to the Minister’s decision.

38    The controversy in this case concerns the reasonableness of the Minister’s state of satisfaction that cancellation of the applicant’s visa was in the national interest. That kind of precondition for the exercise of a power is sometimes referred to as a subjective jurisdictional fact. Such a state of satisfaction is generally reviewable if it was not reached reasonably. It is necessary to bear in mind that the issue is not, however, whether cancellation of the applicant’s visa was in the national interest.

39    There is no statutory definition of the term “national interest”. The courts have considered that expression in the context of ss 501(3), 501A(2) and 501BA(2) of the Act, each of which permits cancellation of visas in the national interest. The concept has consistently been described as broad, although not unbounded.

40    In Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) (2015) 255 CLR 231, the High Court at [18] accepted that the Minister, “may properly have regard to a wide range of considerations”, some of which may be seen as, “bearing upon such matters as the political fortunes of the government of which the Minister is a member”. In Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at [40], the High Court indicated that, “[w]hat is in the national interest is largely a political question”.

41    In Re Patterson; Ex parte Taylor (2001) 207 CLR 391, Gaudron J observed:

78     The terms of s 501(3) make it clear that national interest considerations are separate and distinct from the question whether or not a person passes the character test. That is not to say that the matters which result in a person failing the character test may not also provide the foundation for the Minister's satisfaction that it is in the national interest that that person's visa be cancelled. It may be that the conduct which has led to a person failing the character test is such as to threaten the national interest as, for example, if a person fails the character test because his or her conduct is more likely than not to cause discord in the Australian community (see s 501(6)(d)(iv)).

79     Moreover, the crimes or some of the crimes of which a person has been convicted may be of such a nature as to found a satisfaction that it is in the national interest to cancel his or her visa. Crimes which involve circumventing passport and immigration laws may well be crimes of that kind. Further, crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled.

80     To say that the conduct which leads a person to fail the character test may also provide the foundation for the Minister's satisfaction that it is in the national interest to cancel his or her visa is not to say that it will always do so. Both issues must be considered separately. And where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned.

42    The views expressed by Gaudron J in these passages were adopted by the Full Court of the Federal Court in Vargas v Minister for Home Affairs (2021) 286 FCR 387. The Full Court also held at [61] that s 501BA does not require the Minister to have regard to any particular matter in forming a view about the national interest.

43    In Patterson, Kirby J at [332] considered that the material before the Minister could not sustain any reasonable or rational conclusion that cancellation of the prosecutor's visa was in the national interest where:

… There was no “emergency”. Nor could the particular case of the prosecutor be regarded as involving a significant threat to the nation as a whole or the community of the nation.

(Emphasis in original.)

44    In Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326, the Full Court at [89] rejected the view expressed by Kirby J in Patterson:

With respect to [the view of Kirby J], the bar of national interest does not seem to be set that high by the words of the Act which must be the primary guide to legislative intention. The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained “reasonably”.

(Citations omitted.)

45    In Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, the plurality held at [57]:

The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister's satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”.

(Footnotes omitted.)

46    In CWY20, Besanko J observed:

137     The criterion in s 501A(2)(e) that the Minister is satisfied that the refusal or cancellation is in the national interest, is a broad one and the authorities have made it clear that it is largely for the Minister and not the Courts to determine what is and what is not in the national interest. The latter point has been made in a number of cases in which the Court has considered whether the Minister is entitled to take into account, in his or her consideration of the national interest, the seriousness of the criminal conduct which has led to the person not passing the character test.

…

140    Although the Minister’s power to reach a state of satisfaction as to the national interest is a broad one, it is well established that it is not unconfined and that the Minister must attain the state of satisfaction reasonably.

(Citations omitted.)

47    In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [58] - [65], the Full Court succinctly summarised a number of principles concerning legal unreasonableness as a ground of judicial review:

58.     First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.

59.     Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.

60.     Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified.

…

62.    Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.

63.     Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.

64.     Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.

65.     Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power…The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

(Citations omitted; emphasis in original.)

48    In this case, the Minister separately considered whether, within s 501BA(2)(b) of the Act, he was satisfied that it would be in the national interest to cancel the applicant’s visa. The Minister’s determination that he was so satisfied was based upon the following evaluative factual findings (summarised at paras [18], [55] and [61]):

    The applicant’s criminal conduct, involving sexual offending against a child, was serious.

    There was a risk of reoffending, albeit that the risk was low. Any reoffending of a like kind may result in psychological and/or physical harm to vulnerable children. The Minister implicitly reasoned that the applicant’s risk to the community was a function of the risk of reoffending and the seriousness of the consequences of any reoffending. The seriousness of the consequences for Australian children through any reoffending meant that the applicant posed a serious risk to the community.

    The expectation of the Australian community was that persons who have committed serious crimes against children should not continue to hold visas.

49    The applicant has only challenged the reasonableness of the Minister’s conclusion that he was satisfied it was in the national interest to cancel the applicant’s visa, not the evaluative findings from which the conclusion was derived.

50    It is not in dispute that matters which have resulted in a person failing the character test may also found the Minister's satisfaction that it is in the national interest that the person's visa be cancelled. The applicant failed the character test because, within s 501(6)(e) of the Act, he had committed sexually based offences involving a child. The seriousness with which such offences are regarded under the legislation is indicated by their prescription as grounds for mandatory cancellation of a visa under s 501(3A) and cancellation under s 501BA(2). They are regarded as serious for reasons including that child sex offences have profound and deleterious effects upon victims: see, for example, R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 at [110]. The Minister was entitled to consider and give weight to the seriousness of the applicant’s offending and the seriousness of the risk to Australian children in determining whether he was satisfied that cancellation of the visa was in the national interest. Since the national interest is an essentially political determination, the Minister was also entitled to take into account the expectations of the Australian community.

51    The view expressed by Kirby J in Patterson that the concept of national interest requires a significant threat to the nation as a whole or the community of the nation was rejected in Madafferi. The applicant’s submission that what is required is risk to more than a few individuals, and that the risk have some more widespread or national character, cannot be accepted.

52    Contrary to the applicant’s submission, the Minister’s reasons do provide and explain the link between the seriousness of the applicant’s offending and the national interest. Although the applicant submits that his criminal offending was not exceptional in any sense, the Minister’s evaluative judgment was that he was satisfied the offending was so serious and the applicant posed such a risk of harm to members of the Australian community, that taken together with the expectations of the Australian community, cancellation was in the national interest. The applicant’s argument that the reasons fail to demonstrate any link between the factual findings and the conclusion cannot be accepted.

53    The reasons demonstrate an evident and intelligible justification for the Minister’s conclusion. That conclusion cannot, in my opinion, be described as irrational or illogical or one which no reasonable decision-maker could have reached.

54    The applicant’s first ground must be rejected.

Ground 2: Whether the Minister misunderstood the nature of the power, misconceived his duty, failed to apply himself to the question to be decided, or misunderstood the nature of the opinion which he was required to form

55    Ground 2 of the Amended Originating Application alleges the Minister misunderstood the nature of the s 501BA power, misconceived his duty, failed to apply himself to the question to be decided, or misunderstood the nature of the opinion he was required to form by failing to appreciate it was necessary for there to be something (relating to the national interest) in the nature or seriousness of the applicant’s criminal convictions or in the circumstances in which his crimes were committed, and the low risk of reoffending, before he could be satisfied that the cancellation was in the national interest.

56    The applicant relies upon Avon Downs Pty Ltd v Commissioner for Taxation (1949) 78 CLR 353, where Dixon J held at 360 that:

The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

57    The applicant asks the Court to infer jurisdictional error by reference to the apparently disproportionate outcome and the lack of an evident and intelligible justification in the reasons linking the offending behaviour and risk of recidivism to the national interest. The applicant submits that it should be inferred that the Minister misunderstood the meaning of “national interest” and the need for there to be something in the facts more than the commission of a serious crime and a low risk of reoffending.

58    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, French CJ observed at [30] that, “a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves”.

59    I have already found that the Minister’s state of satisfaction that cancellation of the applicant’s visa was in the national interest was not irrational or illogical or incapable of being reached by a reasonable decision-maker. I have found that the Minister’s reasons demonstrate an evident and intelligible justification for reaching his state of satisfaction. It cannot be concluded that the Minister’s satisfaction was “on any view” so disproportionate as to demonstrate irrationality or unreasonableness, or is only explicable by a misconception of the law.

60    The applicant’s second ground must be rejected.

Ground 3: Whether the Minister acted unreasonably or on an incorrect understanding of the law when considering the national interest by failing to take into account that Australia would breach its international obligations

61    Ground 3 of the Amended Originating Application concerns the Minister’s failure to evaluate the best interests of the applicant’s minor child as part of the “national interest”. The applicant’s argument departed to some extent from the way the ground is expressed in the Amended Originating Application.

62    The applicant submits that the Minister failed to take into account that Australia would be in breach of its obligations under the Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990) (the Convention) when considering the national interest. The submission continues that by its ratification of the Convention, Australia represented to the international community that the executive government will act in accordance with the Convention, including:

(a)    Art 3, which provides for the best interests of the child to be a primary consideration in all actions concerning children;

(b)    Art 9, which provides that a child, “shall not be separated from his or her parents against their will, except when … such separation is necessary for the best interests of the child”; and

(c)    Art 12, which provides that a child who is capable of forming his or her own views has the right to be heard in all matters affecting the child, with those views to be given “due weight”.

63    The applicant submits that as the Minister acted without taking into account the best interests of his child or seeking her views and as the decision has the consequence of separating the child from one of her parents, the decision breaches the Convention. The applicant submits that a violation of international law is intrinsically and inherently a matter of national interest. The applicant submits that, like in CWY20, the Minister’s state of satisfaction as to the national interest was not reached reasonably.

64    The Minister relies upon Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [158] to submit that the absence of reference to the Convention in the reasons indicates, at most, that the Minister regarded the best interests of the child as not bearing on his assessment of the national interest in the particular circumstances of the case. The Minister also submits that the circumstances of CWY20 are distinguishable, including because cancellation of the applicant’s visa would not involve any breach of the Convention.

65    In CWY20, the Acting Minister was held to have acted unreasonably in failing to consider the implications of a breach of Australia’s non-refoulement obligations under international law when considering whether he was satisfied that refusal of a visa was in the national interest. The primary judge had held 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 that refusing the respondent a visa would put Australia in breach of its non-refoulement obligations. The primary judge held that the Acting Minister, acting reasonably, ought to have addressed that matter when considering the national interest, but had failed to do so.

66    The Full Court upheld the judgment of the primary judge. Justice Besanko (the other members of the Court agreeing) held at [169] that:

In the particular circumstance of this case, it was necessary for the Acting Minister to recognise the implications of Australia breaching its non-refoulement obligations in his assessment of the national interest, although the precise weight to be accorded to it and how it was to be balanced against other factors was a matter for the Acting Minister and the Acting Minister alone.

67    Justice Besanko also held at [171]:

The primary judge said that the Court was entitled to take judicial notice of the fact that acting inconsistently with international law obligations may undermine confidence externally. The primary judge was entitled to make this finding … Compliance with international law obligations was an aspect of the national interest.

68    Chief Justice Allsop held at [5] that, “[a] violation of a treaty is a violation of international law”. His Honour also held at [10] that violation of Australia’s international obligations can be seen to bear directly and naturally on the conception of the national interest.

69    In Carrascalao at [158], the appellants argued that the Minister had impermissibly confined the meaning of “national interest”, including by proceeding on the basis that the expression did not include the best interests of the child. The Full Court held that the argument failed on the facts. It was held that there was no obligation on the Minister to advert to all and every possible consideration that may inform an assessment of the national interest in the particular case, and, therefore, the absence of reference to the best interests of the child did not give rise to an inference that the Minister considered that, as a matter of construction, the national interest excluded the best interests of the child. At most, an inference might arise that the Minister regarded the best interests of the child as not bearing on his assessment of the national interest in these particular circumstances.

70    In CWY20, the Full Court emphasised that the outcome depended upon the particular facts of that case. The relevant facts in that case included that refusing the respondent a visa would put Australia in breach of international law, and that the Minister had failed to have regard to that matter. On that basis, the Acting Minister had failed to reasonably reach his state of satisfaction that refusal was in the national interest.

71    In this case, the Minister did not expressly refer to the best interests of the applicant’s child when dealing with the national interest, and only did so when separately addressing the exercise of his discretion. The Minister made no express reference to the Convention. However, for the reasons that follow, the Minister’s failure to discuss whether Australia would be in breach of its obligations under the Convention does not mean that his satisfaction that cancellation was in the national interest was not reached reasonably.

72    The applicant asserts when the Minister was considering the national interest, he ought to have been aware that cancelling the applicant’s visa would mean that Australia would breach Art 3 of the Convention. Article 3 provides that in all actions concerning children, including by administrative authorities, the best interests of the child shall be a primary consideration. However, the Minister went on to expressly take into account at [68] of his reasons the best interests of the applicant’s child as a primary consideration in the exercise of his discretion. Therefore, when the Minister was assessing his state of satisfaction concerning the national interest, there was no prospective breach of Art 3 to consider.

73    The applicant also asserts that the Minister, acting reasonably, was required to consider Australia’s prospective breach of Art 9(1) of the Convention. Article 9(1) provides:

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. …

74    Article 9(4) then provides:

Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

75    The parties helpfully provided supplementary submissions concerning the application of Art 9 of the Convention, including whether Art 9(1) applies to a case of deportation of a parent, or whether Art 9(4) implies that there is an exception to Art 9(1) in such a case.

76    In Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479 at 485, after referring to Art 9 of the Convention, French J held:

On this latter point, it is sufficient to say that the article does not impinge upon the right of a State to deport the parent of a child. Such a deportation will not always be in or related to the “best interests of the child” contemplated by Art 9(1).

77    In Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409, Carr J at 432 construed Art 9(1) as applying only where a child is to be removed from the care of his or her parents, and not to a situation where one or both parents are being deported. His Honour considered the subject matter of Art 9(1) is removal of the child resulting in separation, not removal of the parent or parents. His Honour observed that it would be strange if every positive decision to deport a parent from the boundaries of a State Party was required to be conditioned upon it being, “necessary for the best interests of the child”.

78    On appeal, in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, the view expressed by Carr J was not criticised by the High Court. To the contrary, Mason CJ and Deane J observed at 288-289:

The respondent did not rely on Art 9, no doubt because it does not seem to address decisions to deport or, for that matter, decisions to refuse permanent entry.

79    However, the applicant relies upon Browne v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 550 where Wilcox J observed in obiter at 558:

Subarticle 4 made plain that the separation referred to in this article might be by “action initiated by a State Party” such as deportation.

His Honour seems to have construed the prohibition upon separation of a child from his or her parents against their will in Art 9(1) as encompassing separation through deportation of a parent. His Honour did not refer to the authorities described above.

80    With respect, Wilcox J’s view that Art 9(4) makes it plain that the separation referred to in Art 9(1) can include separation through deportation does not seem to accord with the content of Art 9(4). Article 9(4) commence with the words, “[w]here such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death”. The phrase “such separation” refers to the separation described in Art 9(1), namely separation of a child from his or her parents against their will. Article 9(4) then requires that where separation has occurred through such action by a State Party, the State Party must, in certain circumstances, provide essential information concerning the whereabouts of the absent family member. Article 9(4) accordingly envisages that, notwithstanding Art 9(1), a State Party may separate a child from his or her parents against their will through, relevantly, deportation, but must provide the necessary information.

81    I also respectfully agree with the reasoning of Carr J in Teoh for construing Art 9(1) as inapplicable to a situation where the parent or parents are being deported.

82    Accordingly, Australia does not breach Art 9(1) merely by deporting, or removing, a person from Australia where separation is contrary to the best interests of the person’s child. There was no prospective breach of Art 9(1) for the Minister to consider.

83    The applicant next relies upon Art 12 of the Convention, which provides that:

1.     States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.    For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

84    The applicant provided to the Minister, as part of his representations concerning revocation of the cancellation decision under s 501(3A) of the Act, a letter written by his daughter. She said that she wanted everything to go back to normal so she could be happy again, indicating with clarity that she wanted her father to remain in Australia. The letter was described in detail in the reasons of the Tribunal, which were before the Minister. Although the letter was not expressly referred to in the Minister’s reasons, the Minister specifically referred to the Tribunal’s finding that the best interests of the applicant’s daughter weighed heavily in favour of revocation. I draw an inference that the Minister read the Tribunal’s reasons, including the Tribunal’s description of the letter written by the applicant’s daughter, and considered her views. The applicant’s daughter was provided with an opportunity to express her views as to the prospect of her father being removed from Australia, albeit not in the specific context of the Minister’s ultimate decision.

85    The requirement under Art 12(2) of the Convention to give a child an opportunity to be heard is subject to the opportunity being provided, “in a manner consistent with the procedural rules of national law”. As harsh as it may be, s 501BA(3) indicates that the rules of natural justice (or procedural fairness) do not apply to a decision under s 501BA(2). That section answers the description of a, “procedural rule of national law”. It is inconsistent with the necessary provision of a separate opportunity for a child to be heard in respect of a decision under s 501BA(2).

86    In these circumstances, there was no prospective breach of Art 12(2) of the Convention for the Minister to take into account when considering the national interest.

87    The facts of the present case are distinguishable from those in CWY20. It that case, it was found that refusing the respondent a visa would put Australia in breach of its non-refoulement obligations under international law. In contrast, I have found that cancelling the applicant’s visa would not breach Australia’s obligations under the Convention, and there was therefore no prospective breach for the Minister to take into account when considering the national interest.

88    In these circumstances, the Minister’s failure to advert to Australia’s obligations under the Convention cannot mean that the Minister arrived unreasonably at his state of satisfaction that it was in the national interest to cancel the applicant’s visa.

89    The applicant’s third ground must be rejected.

90    In the course of argument, I queried whether it was relevant to the reasonableness of the Minister’s assessment of the risk to the Australian community that the Minister had failed to make inquiries as to factors relevant to that risk arising from the applicant having been living in the community for four months after his release from immigration detention following the Tribunal’s decision in his favour. The applicant did not take up that matter and I have not considered it any further.

Conclusion

91    The applicant should be granted an extension of time to make his application for judicial review of the Minister’s decision.

92    However, the applicant’s grounds of review have failed. The application must be dismissed with costs.

Associate:    

Dated:    24 January 2023