FEDERAL COURT OF AUSTRALIA
CEU22 v Minister for Home Affairs (No 2) [2023] FCA 867
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant have leave to read the affidavit affirmed herein by Ms Elizabeth Wisser on 11 April 2023.
2. The application be dismissed.
3. The applicant pay the respondent’s costs of the proceeding, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (gpn-costs).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SNADEN J:
INTRODUCTION
1 The applicant is from Afghanistan. Prior to 9 December 2021, he was the holder of a Class BS Subclass 801 Partner (Residence) visa (“Visa”). That Visa was cancelled on 9 December 2021 in consequence of a decision (hereafter, the “Cancellation Decision”) made personally by the (then) Minister for Home Affairs, the Hon Karen Andrews, under s 501(3)(b) of the Migration Act 1958 (Cth) (the “Act”). Ms Andrews determined that the applicant did not pass the “character test” for which s 501(6) of the Act provides and that the cancellation of his Visa was in the national interest. The Cancellation Decision followed the issuing of an adverse security assessment (or “ASA”) concerning the applicant by the Australian Security Intelligence Organisation (“ASIO”).
2 The applicant now applies under s 476A of the Act for judicial review of the Cancellation Decision, which he contends is a product of jurisdictional error. He moves on an amended originating application dated 20 January 2023 for relief in nature of certiorari (to quash the Cancellation Decision) and prohibition (to restrain the respondent from acting upon or giving effect to the Cancellation Decision).
3 For the reasons that follow, the application shall be dismissed with the usual order as to costs.
THE EVIDENCE AND THE HEARING
4 The application traversed a longer-than-usual path to hearing. Its early stages were dominated by interlocutory battles directed to the administering of interrogatories and to the sufficiency of answers given in response. Thereafter, its course settled upon more common terrain, and the parties filed and relied upon affidavit evidence and written submissions.
5 It is convenient at this juncture to particularise the evidence received at the hearing of the application. The applicant read the following affidavits, namely:
(1) an affidavit of the applicant’s instructing solicitor, Ms Elizabeth Wisser, affirmed on 11 January 2022, which annexed materials provided to Ms Wisser by the Department of Home Affairs (hereafter, the “Department”) in relation to the Cancellation Decision;
(2) an affidavit that Ms Wisser affirmed on 22 April 2022, then in support of an application for interrogatories;
(3) an affidavit that Ms Wisser affirmed on 20 January 2023, which annexed copies of extracts of Ms Andrews’ diaries, as well as publicly available information concerning the appointment of Mr Scott Morrison as Minister of State to the Department;
(4) an affidavit that Ms Wisser affirmed on 23 January 2023; and
(5) an affidavit that Ms Wisser affirmed on 24 January 2023.
6 The respondent read two affidavits, namely:
(1) an affidavit of Mr Nigel Muir, a public servant in the Department, affirmed on 18 May 2022 (hereafter, the “First Muir Affidavit”); and
(2) a further affidavit that Mr Muir affirmed on 27 May 2022 (hereafter, the “Second Muir Affidavit”).
7 Portions of the two affidavits that Mr Muir affirmed were the subject of evidential objection. To a large extent, those objections were resolved by indications given by counsel for the respondent that the impugned passages were not relied upon. The balance of the applicant’s objections were determined during the course of the hearing.
8 At the hearing, Mr Muir gave oral evidence for the respondent and was cross-examined. Principally, his evidence centred upon the process by which the Department received the ASA, the manner in which it prepared and provided a brief to Ms Andrews, and what later became of that brief.
9 The respondent also tendered two documents that were circulated prior to the hearing, which together comprised an agreed application book. The first document was titled “bundle of relevant documents” and was filed on 8 April 2022; and the second was labelled “supplementary bundle of relevant documents” and was filed on 6 May 2022. Each was tendered without objection. A third document was tendered at the hearing of the application, being an email that a Mr Luke Morrish sent at 11:30am on 7 December 2021 (hereafter, the “Morrish Email”), to the significance of which I shall shortly return.
10 By operation of s 78B of the Judiciary Act 1903 (Cth), the applicant was required to (and did) give notice under r 8.11(2) of the Federal Court Rules 2011 (Cth) of a constitutional matter (the nature of which is the subject of exploration below). That notice was served upon each of the state, territory and Commonwealth Attorneys-General, in each case a reasonable time prior to the commencement of the hearing. None so served sought to intervene at the hearing.
11 The matter was heard on Monday, 20 February 2023. Both parties appeared by counsel, each of whom made helpful oral submissions. The proceeding was brought on for further hearing on 4 April 2023, in response to the applicant’s request to re-open his case and to revisit some evidential objections. Before turning to the substantive grounds upon which the applicant moves, it is necessary to address that request.
12 At the further hearing, the applicant submitted that he “mistakenly” objected to certain paragraphs of the Second Muir Affidavit. He now seeks to have the impugned passages received into evidence. It is convenient to record what is the subject of that somewhat unusual submission. By the passages in question, Mr Muir deposed as follows:
I am informed by [a departmental staff member] that the Departmental process is to action hard copies of signed submissions on the same day that they are received, and that the hard copies of signed submissions and briefs will be kept in a compactus in the Ministerial and Parliamentary Branch for approximately two months before being destroyed, even in cases where there is confirmation from another line area that those documents could be destroyed. In this case, 2 months from the date of the Minister's decision was 9 February 2022.
I am also informed by [the departmental staff member] that the hard copy of the signed Brief was returned by the Minister's office and that she recently conducted a search of the compactus and confirmed that there is currently no hard copy of the signed Brief and that, therefore, the signed Brief was destroyed. She also informed me that she does not have any other record or scanned version of the signed Brief except for the documents that were provided by the Minister's office…and subsequently uploaded onto [Parliamentary Document Management System].
13 The applicant submits that he was wrong to object to those passages and that they ought now to be received into evidence. The Minister says that they were not read and does not seek to re-open her case so that they might be.
14 To navigate around that forensic reality, the applicant seeks leave to read a further affidavit of Ms Wisser (affirmed on 11 April 2023—hereafter, the “Sixth Wisser Affidavit”), to which the full affirmed version of the Second Muir Affidavit—including the two paragraphs reproduced above—is attached. Although I am unconvinced that much turns on it, that leave is granted.
15 With that unorthodox tangent resolved, attention can shift to the substantive grounds upon which the applicant moves for the relief that is claimed.
16 The evidence discloses that a brief of documents was put together by the Department and provided to Ms Andrews by means of the Morrish Email at 11:30am on Tuesday, 7 December 2021 (I shall refer to it hereafter as, the “Brief”). The Brief was comprised of a “submission” (hereafter, the “Department’s Submission”), to which was attached the following four documents, namely:
(1) “Attachment 1”, being a “decision page” that recorded various options available to Ms Andrews in relation to the potential cancellation or otherwise of the applicant’s Visa (hereafter, the “Decision Page”);
(2) “Attachment 2”, being an index of the material that was said to be relevant to the consideration of those options;
(3) “Attachment 3”, being a draft statement of reasons as to why Ms Andrews might resolve to cancel the applicant’s Visa under s 501(3)(b) of the Act (hereafter, the “Statement of Reasons”); and
(4) “Attachment 4”, being the 29 documents referred to in the index that comprised Attachment 2.
17 That same day (Tuesday, 7 December 2021), a hard copy of the Brief was printed and delivered to the Minister’s office (I shall refer to it, hereafter, as the “Paper Brief”).
18 At some point—the evidence doesn’t disclose when—the Department’s Submission and the Statement of Reasons underwent some formatting changes. The words “OFFICIAL: Sensitive Personal Privacy” were added to the header and footer of each page. It is apparent that the version that Ms Andrews considered—and to which hand-written annotations (including in the form of her signature) were made—assumed that altered form. Mr Muir gave evidence that the Department’s “Parliamentary Services Division” had effected those changes, although there was no direct evidence that that was the case.
19 The Paper Brief was compiled into a white folder. It—or, perhaps more accurately, parts of it—were later scanned and tendered as part of what was received into evidence at the hearing. That scan discloses that its pages were hole-punched and that yellow “flag” stickers were affixed at various points to indicate where Ms Andrews ought to (or might, if she were so minded) place her signature. It also shows that various hand-written annotations were made to it, mostly in the form of markings made to record matters that Ms Andrews purported to consider, or to identify which of alternative passages aligned with decisions or courses that she purported to prefer. It also bears Ms Andrews’ signature and dates in the locations that were flagged.
20 The scan also discloses that Ms Andrews adopted and signed the Statement of Reasons. That document identified the basis upon which she was purportedly satisfied that the applicant did not pass the “character test” and that the cancellation of his Visa was in the national interest. After considering the various statutory pathways that were available (or potentially available) to her, the Statement of Reasons recorded:
…I chose to proceed under s501(3)(b) of the Act without giving [the applicant] an opportunity to be heard on any points before making my decision. As explained further below, I consider that [the applicant] poses a risk to the Australian community which the Australian community should not tolerate. I have therefore decided to make a swift decision to cancel [the applicant’s] visa without giving him an opportunity to be heard in advance of that decision to minimise the time he spends in the community.
21 Later in the Statement of Reasons, Ms Andrews turned to address as follows the significance of Australia’s international non-refoulement obligations (references omitted, errors original):
…I have chosen to take into account Australia’s international non-refoulement obligations in considering whether cancellation of [the applicant’s] visa is in the national interest.
I am aware that a number of Federal Court decisions suggest that Australia’s international non-refoulement obligations, where relevant in a particular case, should be taken into account as part of the assessment of national interest. While this issue is currently the subject of an appeal, I have nevertheless chosen to consider non-refoulement issues in assessing whether cancellation is in the national interest in this case.
In this regard, I note that as part of the representations made by [the applicant] in response to the [Notice of Intention to Consider Visa Refusal] of 2 August 2017, he submitted that as a former employee of the American Embassy in Afghanistan for the International Security Assistance Forces (ISAF), he fears repercussions from the Taliban if he returns…
I accept that there is a risk of harm to persons living in Afghanistan from organisations such as the Taliban. However, there is not enough information for me to make a finding as to whether [the applicant] faces the same risk as do other people in Afghanistan, or whether he would be specifically targeted, such that non-refoulement obligations are owed. I therefore find that non-refoulement obligations are not engaged by this claim.
I note that [the applicant] is able to make a valid application for a Protection visa. A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Provided that [the applicant] does make a valid visa application, the duty to remove him under s 198 of the Act would not apply while his application is being determined. In that context, any claim by [the applicant] that he would face harm on return to Afghanistan could be conclusively assessed in the context of his Protection visa application to the extent that those claims are relevant to the criteria for visa grant.
I am cognisant of the possibility that [the applicant] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria. However, even if he is not granted a Protection visa, any protection finding made for [the applicant] in the course of considering his Protection visa application in respect of Afghanistan would prevent him being removed to that country, except in the limited circumstances set out in s 197C(3)(c) (such as where the Minister has decided that [the applicant] is no longer a person in respect of whom any protection finding would be made and that decision is no longer subject to merits review).
While I am aware that Australia’s international non-refoulement obligations may not be fully encompassed by the visa criteria in s 36(2), there is no information currently before me to indicate that a protection finding for the purpose of s 197C(3), which would prevent [the applicant’s] removal to Afghanistan, may not be made for him even if he engages non-refoulement obligations with respect to that country.
THE PRESENT APPLICATION
22 The Cancellation Decision was made under s 501 of the Act, which relevantly provides (and provided) that:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
...
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
...
(4) The power under subsection (3) may only be exercised by the Minister personally.
…
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(g) 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)…
…
23 A decision made under s 501(3) of the Act may be revoked pursuant to s 501C. That section relevantly provides as follows:
501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:
…
(b) cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; 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.
(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).
(5) The power under subsection (4) may only be exercised by the Minister personally.
…
24 The applicant maintains that the Cancellation Decision was beyond what Ms Andrews had jurisdiction under the Act to decide. In support of that contention, four discrete bases are advanced, several of which comprise of constituent sub-grounds. All four bear repeating here (albeit omitting, for now, the 23 pages of particulars that are a feature of the amended originating application). The applicant submits that:
1. The Minister misunderstood the nature of international non-refoulement obligations owed by Australia in relation to the [a]pplicant, thereby making a jurisdictional error.
2. The Minister failed to consider the legal effects of personally making a decision under s 501(3) of the Act, thereby making a jurisdictional error.
3. The Minister made a jurisdictional error: by failing to meaningfully read and consider the relevant materials before her; by failing to meaningfully consider the merits of the [a]pplicant’s case; and/or by reason of a reasonable apprehension of bias in the form of prejudgement.
4. The Hon Karen Andrews MP did not have the power to make the [Cancellation] Decision, which was therefore affected by jurisdictional error.
25 I will address each ground of challenge and each constituent sub-ground in turn.
GROUND ONE: INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
26 By his first ground, the applicant maintains that the Minister wrongly misunderstood the nature or significance of Australia’s international non-refoulement obligations. Specifically, he suggests that the Minister was wrong to conclude that a “generalised” risk of harm could not or did not suffice to engage Australia’s international non-refoulement obligations.
27 It is prudent to invest some effort in understanding the way in which the applicant’s contention was put. It is articulated in his amended originating application as follows (errors original):
1. The Minister misunderstood the nature of international non-refoulement obligations owed by Australia in relation to the [a]pplicant, thereby making a jurisdictional error.
Particulars
a) At CB 9 [20] and CB 16 [76] of her reasons, the Minister stated that she chose to consider non-refoulement issues in assessing whether cancellation was in the national interest;
b) Such a choice required the Minister to correctly understand the content of Australia’s international non-refoulement obligations;
c) A generalised risk of harm (i.e. one to which an entire population is subject to) is not capable of engaging those obligations (RZSN v Minister for Home Affairs [2019] FCA 1731 [90] (Anderson J); LGLH v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1529 [90] (O’Bryan J));
d) At CB 16 [78], the Minister acknowledged the [a]pplicant’s non-refoulement obligations claim, in the form of claim that he was a former employee of the American Embassy in Afghanistan for the International Security Assistance Forces and that he feared repercussions from the Taliban if he returned, made in response to a notice of intention to consider refusal of the visa which was then granted and eventually cancelled;
e) At CB 16 [79], the Minister “[accepted] that there is a risk of harm to persons living in Afghanistan from organisations such as the Taliban”, but went on to state that such a risk did not engage non-refoulement obligations, as the risk was generalised;
f) In other words, the Minister found at [79] that, but for its finding that the risk of harm in Afghanistan was generalised, Australia owed non-refoulement obligations in relation to the Applicant;
g) The Minister’s finding at [79], as reflected in particular 1(f), was erroneous, in light of particular 1(c);
h) Such an error was not made immaterial by CB 16 to 17 [80] to [82], which themselves disclose errors:
a. At CB 17 [81], the Minister did not expressly refer to the consequences to the [a]pplicant in the form of the prospect of indefinite detention in the event that both s 36(2) of the Migration Act 1958 (Cth) and the “ineligibility criteria” including s 501 were satisfied;
b. It should be inferred that the Minister did not consider the consequences of the prospect of indefinite detention, given:
i. the lack of such an express reference; and
ii. the fact that, although that prospect would be obvious, that is not to say that the Minister considered it, as other legal consequences did deserve a mention in the reasons, despite also being obvious, such as the consequence described at CB 6 [5] of the Minister being required to afford procedural fairness under s 501(2);
c In the alternative to particular 1(h)(b):
i. it was unrealistic for the Minister to state at CB 17 [81] that a protection visa application ‘may’ be refused because of ineligibility criteria, in circumstances where:
1. she found that the [a]pplicant failed the character test;
2. she found that cancellation was in the national interest;
3. she personally exercised the discretion to cancel the visa;
ii. had the Minister considered, as she should have, that refusal of a protection visa because of ineligibility criteria was inevitable (or at least almost inevitable), she might have ascribed more weight to the consequences of the prospect of indefinite detention;
d. Contrary to the Minister’s statement at CB 17 [82], it is not the case that “Australia’s international non-refoulement obligations may not be fully encompassed by the visa criteria in s 36(2)” (emphasis added). Rather, such obligations are not fully encompassed by s 36(2). It follows that, had the Minister approached the issue correctly, it might have ascribed more weight to such obligations;
e. Trying to read the subsequent part of CB 17 [82] beneficially to the Minister, it seems to mean that, assuming such obligations to be owed in respect of the [a]pplicant contrary to the Minister’s finding at CB 16 [79], there was no information before the Minister to indicate that a protection finding for the purpose of s 197C(3) may not be made;
f. Such a subsequent part of CB 17 [82] is vitiated with error, as:
i. it assumes, without any bases, that, in the absence of evidence to indicate that a protection finding could not be made, it could be made;
ii. in any event, the Minister failed to consider the consequences of a protection finding not being made, namely refoulement;
28 Intending no disrespect, it is not easy to unpack the various layers that accumulate in the service of this first ground. It is to be borne in mind that the jurisdictional error that is attributed to Ms Andrews is said to lie in her having “misunderstood the nature of international non-refoulement obligations owed by Australia in relation to the [a]pplicant”. That suggestion is particularised as follows.
29 First, the applicant identifies why it is that Ms Andrews was obliged to understand that which she is said not to have understood: namely, because she “chose to consider non-refoulement issues in assessing whether cancellation was in the national interest”. In other words, it is said that, having chosen to consider the issue, Ms Andrews was obliged to consider it correctly; and that any failure to do so would sound in jurisdictional error.
30 There is then some analysis in the particulars—specifically particulars (d) to (f)—as to what Ms Andrews, in fact, considered. It is said that she accepted that the applicant would be at risk of harm; but concluded that that risk was not sufficient to engage Australia’s obligations of non-refoulement because it was “generalised”.
31 The correctness of that conclusion is then challenged (see particular (g)). It is said that the Minister was wrong to think that a generalised risk of harm could not engage Australia’s international non-refoulement obligations. Thus the charge of error against Ms Andrews is stated; and, by particular (h), it is said to have been material and, therefore, jurisdictional in nature.
32 To rephrase, then: the applicant contends that Ms Andrews was obliged correctly to appreciate the boundaries and significance of Australia’s international non-refoulement obligations; and that, in breach of that obligation, she made her decision without possessing such an appreciation. It is said that, had she properly understood the nature of Australia’s obligations, she might well have arrived at a different decision.
33 The written and oral submissions that the applicant advanced in support of ground one did not marry precisely with the manner in which it was articulated in the amended originating application. In particular, the applicant submitted that Ms Andrews’ obligation correctly to consider the significance of his potential return to Afghanistan in breach of Australia’s international non-refoulement obligations arose not merely because Ms Andrews chose to consider that issue; but also because it was an issue to which the subject matter, scope and purpose of s 501(3)(d) of the Act (or the Act more broadly) required, by implication, that such consideration be given.
34 Additionally, the applicant sought—particularly by written submissions advanced with leave after the hearing—to expand upon ground one so as to contend that Ms Andrews had fallen into jurisdictional error by not taking account of the prospect that, in the event that his visa were cancelled, he would be subjected to a prospect of indefinite detention. That too, he said, was a matter of which the proper exercise of power under s 501(3) of the Act obliged her to take account.
35 The following questions arise, then, for the court’s consideration, namely:
(1) when assessing whether it was in the national interest to cancel the applicant’s Visa, was Ms Andrews obliged properly to consider the prospect that he might be returned to Afghanistan in breach of Australia’s international non-refoulement obligations;
(2) if she was so obliged, did Ms Andrews consider that question or did she, instead and by reason of having misunderstood the nature of Australia’s non-refoulement obligations, consider something else;
(3) if she did not consider what she was obliged to consider, was that failure material to a point that bespeaks jurisdictional error; and
(4) what, if anything, can be made of Ms Andrews’ failure specifically to address, in her reasons for favouring cancellation of the applicant’s Visa, the prospect that he might be subjected to prolonged or indefinite detention?
36 I will address each question in turn.
Duty to consider non-refoulement obligations
37 As has been rehearsed, the applicant identifies two sources of what he says was Ms Andrews’ obligation to consider the prospect that he might be returned to Afghanistan in breach of Australia’s international non-refoulement obligations. The first is that she chose to consider that question; the second is that the subject matter, scope or purpose of s 501(3) of the Act implicitly required it.
38 I do not accept that Ms Andrews was obliged correctly to consider Australia’s international non-refoulement obligations merely because that was an issue that she opted to consider. A question or issue upon the consideration of which the proper exercise of a statutory power is not conditioned doesn’t become a mandatory relevant consideration merely because a decision maker chooses to consider it. An error that leads a decision maker to misunderstand the significance of something that he or she was not, in any event, obliged to consider is not an error of jurisdiction.
39 So much was made clear recently in HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 13 (Yates, Abraham and McElwaine JJ). There, a tribunal was held to have misunderstood the nature of Australia’s international non-refoulement obligations when considering whether there was “another reason” to revoke the cancellation of a visa under s 501CA(4) of the Act. Referring to the reasoning of Middleton and Wigney JJ (with whom Pagone J relevantly agreed) in Snedden v Minister for Justice (2014) 230 FCR 82 (hereafter, “Snedden”), the court concluded (at [72]) that the tribunal’s “…misunderstanding of Australia’s unenacted international non-refoulement obligations was not a jurisdictional error, but one within jurisdiction…”
40 In Snedden, the position was put even more clearly. There, a decision had been made under s 22(3)(f) of the Extradition Act 1988 (Cth) to grant an extradition request made by a foreign power. In making it, the Minister had occasion to consider the significance of certain treaty obligations. That consideration was said to have proceeded upon an incorrect understanding of what those obligations entailed. Middleton and Wigney JJ observed (at 111 [164]) that:
…if there was an error about Australia’s international obligations…it was an error within jurisdiction. That is so whether or not it was an error of law and whether or not it influenced, in some way, the exercise of the Minister’s broad discretion conferred by s 22(3)(f). Any such error did not concern any of the enumerated mandatory considerations in s 22(3) and did not become a mandatory consideration even if the Minister in some way considered or took it into account in the exercise of his discretion.
41 Both HRZN and Snedden endorsed the observations of Tracey J in AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 (Tracey J; hereafter, “AB”). That case involved a decision to refuse an application for a visa under the Act. Again, consideration was given to Australia’s international obligations and it was said that that consideration was flawed for want of proper appreciation as to what they required. His Honour observed (at [27]):
Australia’s unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error.
42 Ms Andrews’ decision to consider the significance of Australia’s international non-refoulement obligations did not suffice to make them a mandatory relevant consideration. Any misunderstanding that attended that consideration is insufficient to taint the decision as the product of jurisdictional error.
43 I turn, then, to address the second potential source of Ms Andrews’ alleged obligation properly to consider Australia’s international non-refoulement obligations. The applicant maintains that the subject matter, scope or purpose underlying s 501(3) of the Act implicitly requires, as a condition to the exercise of that power, that those obligations first be considered. That submission appears to draw heavily from the proposition that emerges from cases such as NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (Allsop CJ, Buchanan and Katzmann JJ), which, at the risk of over-simplification (and albeit in other statutory contexts), hold that the subject matter, scope or purpose of the Act (or parts of it) may implicitly require, as a condition to the exercise of statutory power, that certain statutory or legal consequences flowing therefrom first be taken into account. Here, the applicant maintains that his potential return to Afghanistan in breach of Australia’s international non-refoulement obligations was a legal consequence of Ms Andrews’ decision to cancel his Visa; and that the cancellation could not validly be effected unless or until Ms Andrews correctly considered it.
44 As authority for that proposition, the applicant cites the reasoning of Katzmann J (with whom Collier and Wheelahan JJ agreed) in ENT19 v Minister for Home Affairs (2021) 289 FCR 100 (Collier, Katzmann, and Wheelahan JJ) (hereafter, “ENT19”). That case involved a ministerial decision to refuse the grant of a protection visa on national interest grounds. The applicant had been found to qualify as a refugee; but was nonetheless refused a visa on account of his involvement in a people-smuggling operation. The Minister determined that granting the applicant a visa would send “the wrong signal” to those who might be minded to engage in similar conduct.
45 An application for judicial review of that decision was dismissed; but, on appeal, it was held that the Minister had “…erroneously confined his assessment of the national interest by focussing on the type of offence the appellant had committed, the appearance of granting a protection visa to such an offender, and the implications of doing so for Australia’s border protection policy”: ENT19, 123 [107] (Katzmann J, with whom Collier and Wheelahan JJ agreed).
46 Of some significance in that case was the Minister’s failure, when assessing the national interest, to consider the prospect that the appellant might be removed from Australia in breach of international non-refoulement obligations and the possibility that he might otherwise be subjected to indefinite detention. Katzmann J was of the view (and the other members of the court agreed) that, “…in the particular circumstances of the present case no reasonable decision-maker could lawfully calculate whether it was in the national interest to grant the applicant a visa without considering both [of those] prospective eventualities”: ENT19, 124 [108] (Katzmann J, with whom Collier and Wheelahan JJ agreed).
47 Presently, the applicant holds ENT19 as authority for the proposition that, when assessing whether cancellation of the applicant’s Visa was in the national interest, Ms Andrews was obliged properly to consider the prospect that he might be returned to Afghanistan in breach of Australia’s international non-refoulement obligations. Respectfully and for either or both of two reasons, it does not so hold.
48 First, the statutory power with which ENT19 was concerned differed in material respects from that with which this matter engages. There, the power of refusal was not subject to a process of revocation and was exercised in respect of an application for a protection visa. By contrast, the power in focus here is subject to the process of revocation for which s 501C of the Act provides and was not exercised in respect of a protection visa. Indeed, as Ms Andrews noted in the Statement of Reasons, it was open to the applicant to make an application for a protection visa.
49 Those realities inform whether it might be said that the potential return of the applicant to Afghanistan in breach of Australia’s international non-refoulement obligations was a legal or practical consequence of the Cancellation Decision of which the proper exercise of the relevant power required that Ms Andrews take account. I do not accept that it was. Plainly, it was a circumstance that the cancellation of the Visa put more starkly in prospect than it otherwise would have been; but so to observe is not to recognise it as an inevitability or otherwise as a consequence of the kind that should have compelled specific consideration. As the full court observed in COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148, 157 [38] (North, Collier and Flick JJ):
The subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulement obligations of Australia when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application.
50 A similar view was expressed more recently (and in circumstances more closely aligned with those that present in this matter) in CCU21 v Minister for Home Affairs [2023] FCAFC 87, [39] (Perram, Halley and Goodman JJ).
51 In the analogous context of a decision under s 501A(2) of the Act (which confers upon the Minister a power to refuse or cancel a visa in the national interest, in circumstances where a delegate or tribunal has earlier decided to grant or not cancel it), it has been said that:
…the implications of Australia breaching its non-refoulement obligations or, more simply, Australia’s non-refoulement obligations, is not a mandatory relevant consideration in the case of the power in s 501A(2) of the Act in the sense of a consideration to be taken into account in every case (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–42 per Mason J (as his Honour then was)). There are no doubt cases under s 501A(2) where Australia’s non-refoulement obligations are not raised and are not relevant.
(See: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565, 601 [155] (Besanko J, with whom Allsop CJ and Charlesworth J agreed, and with whom Kenny J substantially agreed; Kerr J declining to decide—hereafter, “CWY20”)).
52 Although neither party here referred to it, mention might also be made of Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 (Middleton J). There, as here, the court considered whether a decision made under s 501(3) of the Act was attended by jurisdictional error on account of the Minister’s failure to consider the national interest implications that potential breaches of Australia’s international non-refoulement obligations might visit. After considering the significance of CWY20 and ENT19, Middleton J made the following observations (at [105]-[106]):
[A]fter the s 501(3) cancellation decision, there…remained the opportunity for the Applicant to seek revocation of his cancellation under s 501C on the basis that he passed the character test (as he now says he does in this Court), and the consequence of the cancellation was to invite the Applicant to make such representations. Although any representations of the Applicant’s regarding Australia’s non-refoulement obligations to him or Australia’s national interest cannot bear on the Minister’s s 501C(4) revocation decision, unlike in CWY20 and ENT19, as a consequence of s 198(2A), no immediate obligation to remove the Applicant as soon as reasonably practicable arose at the point of cancellation. The obligation to remove would only arise upon the happening of certain further contingencies, including that the Applicant either not make representations for revocation within the period for doing so, or that he make representations and the Minister makes a subsequent and separate decision not to revoke the cancellation decision. During this time, the Applicant is entitled to lodge a protection visa application (and as stated above, the Applicant remains entitled to do so).
[Further], unlike in CWY20 and ENT19, the Minister’s cancellation decision under s 501(3) created no barrier to the Applicant lodging a valid protection visa application in which his protection claims could be fully assessed: see s 501E(2) of the Act…The opportunity of the Applicant still to lodge a protection visa following his visa cancellation is also significant when considering the potential legal consequences of a s 501(3) cancellation decision. For those visa holders or visa applicants in CWY20 and ENT19, the ministerial decisions at issue were final in the sense that there was no further available entitlement under the Act for those applicants to have Australia’s non-refoulement obligations considered with respect to their circumstances.
53 Those observations were not disturbed on appeal: Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 197 (Logan, O’Callaghan and Banks-Smith JJ).
54 Second, it must be recalled that ENT19 was not a “failure to consider” case. It was a legal unreasonableness case. The court accepted that, in the circumstances with which it was confronted, the power of refusal that was there in focus could not reasonably have been exercised without consideration of Australia’s international non-refoulement obligations. But it did not hold (certainly not in terms) that those obligations were themselves a mandatory relevant consideration of which the decision maker was required to take account as a condition to the valid exercise of that power.
55 What is or is not in the national interest is “…largely a political question” (Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, 46 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ)) and “…is largely for the Minister and not the Courts to determine” (CWY20, 597 [137] (Besanko J, with whom Allsop CJ and Charlesworth J agreed, and with whom Kenny J substantially agreed; Kerr J declining to decide)). When used in a statute, the expression “public interest” imports “…a discretionary value judgment to be made by reference to undefined factual matters”: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379, 400-401 [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). That value judgment is “…unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitively extraneous to any objects the legislature could have had in view”: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (Dixon J).
56 As has already been recited, the present matter involves circumstances very different to those that arose in ENT19; but, more to the point, it is not said to engage with the principles of legal unreasonableness. Rather and more simply, the applicant submits that Australia’s international non-refoulement obligations were a consideration of which Ms Andrews was obliged to take account in assessing whether the cancellation of the applicant’s Visa was in the national interest (and that doing so required that she properly understand what they entailed). Although they were plainly relevant to that question, I do not accept—and the authorities are clear that it is not the case—that there is anything about the subject matter, scope or purpose of the section (or the Act more broadly) that required, by implication, that those obligations be considered.
57 It follows that I do not accept that, in exercising the cancellation power under s 501(3) of the Act, Ms Andrews laboured under—or failed to discharge—any obligation to consider Australia’s international non-refoulement obligations.
Was the issue considered?
58 Having answered the first question as I have, it is not strictly necessary that I should consider whether Ms Andrews correctly assessed Australia’s international non-refoulement obligations en route to her conclusion about the national interest. Nonetheless, I would make the following observations.
59 Ms Andrews noted in her reasons for the Cancellation Decision that there was “…not enough information for [her] to make a finding as to whether [the applicant] faces the same risk as do other people in Afghanistan, or whether he would be specifically targeted, such that non-refoulement obligations are owed”. Reading that passage fairly, it is apparent that Ms Andrews took the view that Australia’s international non-refoulement obligations would not be engaged in respect of the applicant if the risks that he faced upon return to Afghanistan were not risks that he would face because he was “specifically targeted”.
60 Had it been necessary to decide the issue, I would have been disposed to accept that, by reasoning in that way, Ms Andrews erred. The nature and source of Australia’s obligations of non-refoulement are not presently to be doubted. They arise by reason of Australia’s entry into the instruments to which Allsop CJ referred in CWY20, 571 [12]. As a state party to those instruments, Australia is obliged “…as a matter of international law…not to remove a person from [its] territory where there are ‘substantial grounds’ for believing that there is a real risk of irreparable harm of the kind contemplated by Arts 6 and 7 [of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (hereafter, the “ICCPR”)] in the country to which such removal is to be effected”: CRI026 v Republic of Nauru (2018) 355 ALR 216, 223 [24] (Kiefel CJ, Gageler and Nettle JJ).
61 A generalised risk of harm—that is to say, for example, a risk that applies generally to those within the territory of a country to which a person might be removed following the cancellation of his or her visa—is, then, capable of engaging Australia’s international non-refoulement obligations. In order that it might do so, however, there must be some basis to think—more accurately, substantial grounds for believing—that the risk is “real” and that the harm in question will, if realised, be “irreparable harm of the kind contemplated by Arts 6 and 7” of the ICCPR.
62 Had it been necessary to decide the issue, I would have been minded to accept that the obligations that Ms Andrews in fact considered when assessing the national interest were not Australia’s international non-refoulement obligations. For obvious reasons, it is not necessary to venture anything further on that score.
Materiality
63 It is also not necessary, in light of my conclusion on the first question, that I should consider whether any error of the kind just addressed might have been material in the sense described by authorities such as Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (Bell, Gageler, Keane, Nettle and Gordon JJ).
64 Nonetheless, it might be noted that materiality is not a high hurdle to clear: Nathanson v Minister for Home Affairs (2022) 403 ALR 398, 410 [33] (Kiefel CJ, Keane and Gleeson JJ; with whom Gageler J agreed at 750 [47]). It is not beyond the realm of possibility that Ms Andrews might have been moved to make a different decision had she proceeded upon a proper appreciation of the circumstances that were apt to engage Australia’s international non-refoulement obligations.
Indefinite detention
65 For reasons equivalent to those set out above in relation to non-refoulement, the possibility that the applicant might be detained for a prolonged or indefinite duration following the Cancellation Decision was not a consideration of which Ms Andrews was obliged to take account before exercising the cancellation power conferred by s 501(3) of the Act. Further support for that proposition may be found in the analysis set out in DFTD v Minister for Home Affairs [2020] FCA 859 (Snaden J) and the authorities there referred to—particularly Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 (Allsop CJ, Griffiths and Wigney JJ).
66 But even were that not so, it was not the applicant’s case—at least not until after the hearing—that Ms Andrews’ decision was a product of jurisdictional error because she failed to take account of that possibility. As the amended originating application makes clear, ground one proceeds upon an allegation of jurisdictional error subsisting in a failure properly to consider Australia’s international non-refoulement obligations. True it is that indefinite detention is referred to in the particulars subjoined to that allegation; but only in the context of materiality. There is no suggestion of jurisdictional error borne of a failure to consider the prospect of indefinite detention.
67 That absence was not limited to the amended originating application. The applicant’s written submissions on ground one did not suggest that Ms Andrews’ failure to consider the prospect of indefinite detention itself should sound in jurisdictional error. Nor was that a proposition advanced orally at the hearing. The submission was first advanced in supplementary written submissions that were filed, with leave, after the hearing.
68 In the circumstances—and, in particular, in the absence of any application to further amend his originating application—the applicant should be held to the case of which the Minister was given notice. Although it scarcely matters given the substance of the contention, I would decline to entertain the submission that the Cancellation Decision is vulnerable to prerogative relief because Ms Andrews failed properly to consider the prospect of prolonged or indefinite detention before she made it.
Conclusion on ground one
69 The Cancellation Decision was not tainted by jurisdictional error of the kind alleged by ground one.
GROUND TWO: FAILURE TO CONSIDER LEGAL EFFECTS OF PERSONAL DECISION
70 By his second ground, the applicant contends that Ms Andrews made her Cancellation Decision without first considering that, because she was making it personally, there would be no scope for a process of merits-based review. That consideration is said to have been one of which Ms Andrews was obliged to take account because it arose as a direct legal or practical consequence of her decision. The failure to consider that consequence is said to amount to jurisdictional error.
71 The contention is without merit. There is nothing about the subject matter, scope or purpose of the Act that requires, as an implied condition upon the lawful exercise of the cancellation power for which s 501(3) provides, that the Minister must first consider that the making of a personal decision will preclude any scope for merits-based review: EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536, [242]-[243] (Perry J). The unavailability of a process of merits-based review was not something that arose because Ms Andrews cancelled the applicant’s Visa. It was a reality that is inherent in the legislative scheme; and that applies regardless of any exercise of power under s 501(3). It was not a mandatory consideration.
72 Further and in any event, the want of consideration upon which the ground is premised cannot safely be inferred. The Submission that was provided to Ms Andrews made clear that, in the event that she were minded to cancel the applicant’s visa under s 501(3), the legislative scheme would preclude any prospect that her decision would be reviewable on its merits. Specifically, Ms Andrews was informed that:
If you cancel [the applicant’s] Class BS Subclass 801 Partner (Residence) visa, merits review of your decision in the Administrative Appeals Tribunal is not available to [the applicant]. However, it would be open to [the applicant] to seek judicial review of your decision in the Federal Court of Australia.
73 It goes without saying that it is for the applicant to establish the factual proposition upon which ground two rests: namely, that Ms Andrews made the Cancellation Decision without first considering that there would thereafter be no prospect of merits review. Here, that may only be done by inference, which would typically be drawn from the absence within the Statement of Reasons of some express reference to that reality. Presently, though, there is reason not to draw such an inference. Having been very clearly informed about the absence of merits review, it is far more likely that Ms Andrews’ failure specifically to advert to it in the Statement of Reasons was a function of its perceived insignificance. It is so self-evidently irrelevant to the substantive issue of cancellation that it should hardly require acknowledging.
74 Finally, even assuming that there was some error, it is impossible to see how it might have been material. It could not seriously be thought that, having resolved to cancel the applicant’s Visa, Ms Andrews might have been moved to reach a different conclusion had she realised that there would be no process of merits-based review. The suggestion is unrealistic.
GROUND THREE: FAILURE TO READ AND CONSIDER MATERIAL
75 Ground three posits that Ms Andrews’ decision was made without her first considering the material, or some of the material, comprising the Brief that was prepared and given to her. That submission is put in three ways, namely that:
(1) the Minister failed to read the relevant material;
(2) the Minister failed personally to decide the applicant’s case on its merits; and/or
(3) the Minister’s decision was affected by apprehended bias.
76 In each case, the applicant relies on a comprehensive suite of factual propositions that are set out as particulars of the failures that are alleged. Those particulars extend over 15 pages of the 21-page amended originating application. Although lengthy, they should be set out in these reasons. The applicant maintains that the failures are apparent as a matter of inference from the following (in combination or otherwise), namely:
i. A Departmental Brief allegedly prepared for the Minister, which allegedly included (as per the affidavits of Ms Elizabeth Wisser, affirmed and filed on: 11 January 2022, pages 16 to 35, with the page numbers being located on the top left-hand corner of each page; 22 April 2022, pages 23 to 42, with the page numbers being located on the top right-hand corner of each page):
A. Attachment 1, comprising a single page with a decision record containing a 'circle the option' note;
B. Attachment 2, comprising a table listing Attachments ‘A’ to ‘T’; and
C. Attachment 3, comprising a 17 pages of statement of reasons for her decision (the page numbers being located on the bottom, right-hand corner of each page, from 11 to 27);
ii. The fact that Attachment 1 (whose first paragraph stated that “[t]he following is my decision …”) listed the following options:
A. Option (a), which was not circled, comprising one of the ‘[n]on-cancellation outcomes’ and reflecting non-satisfaction of s 501(3)(c) of the Migration Act 1958 (Cth);
B. Option (b), which was not circled, comprising one of the ‘[n]on-cancellation outcomes’ and reflecting satisfaction of s 501(3)(c) and non-satisfaction of s 501(3)(d) of the Act;
C. Option (c), which was not circled, comprising one of the ‘[n]on-cancellation outcomes’ and reflecting (only to some extent, as per particular 3(a)(xix)) satisfaction of both ss 501(3)(c) and (d), with the discretion under s 501(3)(b) being exercised in the [a]pplicant’s favour;
D. Option (d), which was circled, comprising the ‘[c]ancellation outcome’ and reflecting satisfaction of both ss 501(3)(c) and (d) of the Act, with the discretion under s 501(3)(b) being exercised against the [a]pplicant – Option (d) ended with “[m]y reasons for this decision are set out in the attached Statement of Reasons” and did not include any statement to the effect that the Minister had personally considered the [a]pplicant’s representations and the factual material and made her own factual findings;
iii. The inclusion in the Brief of only 1 set of reasons concerning only 1 decision, in circumstances where:
A. although s 501C(3)(a) of the Act required the [r]espondent to give the [a]pplicant a written notice setting out only a decision to cancel a visa and her reasons for it (as opposed to reasons supporting non-cancellation, namely Options (a) to (c) here), this provision (or any other provisions in the Act) did not prohibit the of Home Affairs from providing the Minister with internal Department (i.e. from the Department to her only, instead of to the [a]pplicant) sets of reasons, even if very short, supporting Options (a) to (c);
B. It would be reasonable to expect that, if the Department did not determine for itself what decision the Minister ought to make (i.e. whether or not to cancel the visa), she should have been given internal reasons, even if very short, supporting Options (a) to (c), especially as the Brief strangely listed Options (a) to (d) before listing the statement of reasons drafted by the Department.
v. The absence in the Brief, on the points discussed in particular 3(a)(iii), of:
A. any notes by the writer of the reasons;
B. any notes by the Minister;
C. any indication that the Minister sought to discuss the points with the writer of the reasons or vice-versa;
D. any indication that the Minister discussed the points with the writer of the reasons;
vi. The fact that a perusal of the PDF file that a delegate sent the [a]pplicant containing the Brief and notifying him of the cancellation of his visa suggests that such a file included a merge of, among other pages, a scan/s of printed versions of the only page in Attachment 1 and page 27 of Attachment 3 – pages running from 11 to 27, comprising 17 pages - (hereafter the Signed Pages, which were the only pages containing any marks, signatures or dates) on the one hand with non-scanned pages 11 to 26 of Attachment 3 on the other hand – see: the affidavit of Ms Wisser, affirmed and filed on 11 January 2022, pages 16 to 35; the affidavit of Ms Wisser, affirmed and filed on 22 April 2022, pages 23 to 42; the affidavit of Mr Nigel Muir, filed by the [r]espondent and affirmed on 27 May 2022 (Second Muir Affidavit), with the relevant unnumbered pages on the electronic file containing the affidavit as stamped by the Court being pages 10 (Attachment 1) to 11 (page 27 of Attachment 3), pages 16 (Attachment 1) to 17 (page 27 of Attachment 3) and pages 22 (Attachment 1) to 23 (page 27 of Attachment 3):
A. The Signed Pages display on the left-hand side what appear to be puncher holes typically used for binding separate physical pages, which are not displayed in any of the other 16 pages of Attachment 3;
B. The sharpness, contrast and colour of the fonts used in the Signed Pages are different to those used in the other 16 pages of Attachment 3;
C. The words used in pages 11 to 26 of Attachment 3 are horizontally aligned with (i.e. running parallel to) the upper and lower margins of those pages, whereas the words in page 27 are slightly rotated clockwise compared to its upper and lower margins;
vii. The inherent unlikelihood that the Minister had access to, or read, Attachments ‘A’ to ‘T’ (as per the affidavit of Ms Wisser, affirmed and filed on 22 April 2022, pages 54 to 297):
A. none of the pages included in Attachments A to T included any puncher holes, as did the Signed Pages, even though they were allegedly included in the same Brief;
B. some of the pages in Attachments A to T are wider than others, whereas if they had all been scanned together, they would all have the same width;
C. Attachments A to T were part of a separate PDF file which a delegate sent the Applicant (i.e. separate from the PDF containing the Brief) – as per the affidavit of Ms Wisser, affirmed and filed on 22 April 2022, pages 8 to 50 versus pages 51 to 297;
D. Attachment 2 was displayed out of order in the Brief as sent by the delegate to the Applicant (as per the affidavit of Ms Wisser, affirmed and filed on 22 April 2022, pages 23 to 42), namely after Attachment 3;
E. The pages attached to the delegate’s email of 20 December 2021 which constituted Attachments A to T (as per the affidavit of Ms Wisser, affirmed and filed on 22 April 2022, pages 51 to 297) were not at all labelled as Attachments A to T in the pages attached to the delegate’s prior email of 16 December 2021 (as per the affidavit of Ms Wisser, affirmed and filed on 11 January 2022, pages 44 to 288), which suggests that the labels were added after the Decision was purportedly made, to (ex post facto) match such labels as referred to in Attachments 2 and 3.
viii. The fact that the big yellow arrow stickers found in Attachment 1 and page 27 of Attachment 3, indicating to the Minister where to sign, would not be necessary to be given to a person who meaningfully read the relevant materials, as the places for signature would become readily apparent from simply reading the Brief;
ix. The fact that the statement of reasons in Attachment 3 commences on page 11, with pages 1 to 10 being found in neither of the above-mentioned PDF files;
x. Despite the absence of pages 1 to 10 in Attachment 3, the absence in the Brief of:
A. any notes by the writer of the reasons on such an absence;
B. any notes by the Minister on the absence;
C. any indication that the Minister sought to discuss the absence with the writer of the reasons or vice-versa;
D. any indication that the Minister discussed the absence with the writer of the reasons;
xi. The absence in Option (b) of a direction that the [a]pplicant “be warned about his future conduct in relation to s501 of the Act”, as directed in Option (c);
xii. Given that, under Option (b), the Minister’s cancellation power under s 501(3)(b) was not available as cancellation would not be in the national interest, the absence under Option (b) of a sub-option for the Minister to indicate whether or not she would like for the matter to be considered under s 501(2), which did not require cancellation to be in the national interest;
xiii. The absence in the Brief of any explanations of why the matter was referred to the Minister for her to personally make the decision in question instead of referred to a delegate to consider under s 501(2) of the Act;
xiv. The absence in the Brief of any indications or suggestions that the Minister was not required to make the decision in question;
xv. The absence in the Brief of any options for the Minister to circle indicating she did not wish to consider the matter;
xvi. The absence in Attachment 1 of an option reflecting non-satisfaction of s 501(3)(c) and satisfaction of s 501(3)(d) of the Act, which would reasonably be expected to have been included, given:
A. that, for the power under s 501(3)(b) to be enlivened, both ss 501(3)(c) and (d) had to be satisfied (i.e. non-satisfaction of either ss 501(3)(c) or (d) was sufficient for the power not to be available); and
B. the existence of Option (b) reflecting, conversely, satisfaction of s 501(3)(c) and non-satisfaction of s 501(3)(d), even though satisfaction of the former was irrelevant in the event of non-satisfaction of the latter;
xvii. The absence in Attachment 1 of an option reflecting non-satisfaction of s 501(3)(c) and non-satisfaction of s 501(3)(d) of the Act, which would reasonably be expected to have been included, given:
A. The matters discussed in particular 3(a)(xvi)(A), which are repeated and relied upon;
B. The existence of Options (c) and (d) reflecting, conversely, satisfaction of both ss 501(3)(c) and (d);
xviii. The absence in Attachment 1, on the points discussed in particulars 3(a)(xvi) and (xvii), of:
A. any notes by the writer of the reasons;
B. any notes by the Minister;
C. any indication that the Minister sought to discuss the points with the writer of the reasons or vice-versa;
D. any indication that the Minister discussed the points with the writer of the reasons;
xix. Given that, although listed under the heading “[n]on-cancellation outcomes”, Option (c) referred to a decision “NOT to exercise my discretion under s 501(3) of the Act to refuse to cancel” the Applicant’s visa, thereby discrepantly expressing a cancellation outcome (after all, not refusing to cancel a visa equates to cancelling it), the lack in the Brief of:
A. any notes by the Minister on that discrepancy;
B. any indication that the Minister sought to discuss the discrepancy with the writer of the reasons;
C. any indication that the Minister discussed the discrepancy with the writer of the reasons;
xx. Given the discrepant reference at CB 8 [13] of the reasons to whether “refusal” (as opposed to cancellation) of the [a]pplicant’s visa was in the national interest, the lack in the Brief of:
A. any notes by the Minister on such a discrepancy;
B. any indication that the Minister sought to discuss the discrepancy with the writer of the reasons;
C. any indication that the Minister discussed the discrepancy with the writer of the reasons;
xxi. Given the contradictory references between:
A. On the one hand, CB 9 [20] of the reasons stating that “consideration is being given to seeking special leave to appeal from the Full Federal Court’s decision” (emphasis added) according to which, in the words used at [20], “in some circumstances it may be legally unreasonable not to consider Australia’s international non-refoulement obligations as part of the assessment of the national interest” (hereafter the Issue); and
B. On the other hand, CB 16 [77] of the reasons stating that the “[Issue] is currently the subject of an appeal” (emphasis added);
C. The lack in the Brief of:
1. any notes by the Minister on that contradiction;
2. any indication that the Minister sought to discuss the contradiction with the writer of the reasons;
3. any indication that the Minister discussed the contradiction with the writer of the reasons;
xxii. Despite there being 16 references in the Decision to a ‘Direction’, the lack in the Brief of:
A. an explanation by the writer of the reasons of what was meant by the term ‘Direction’;
B. a copy of such a ‘Direction’, if it was written;
C. any notes by the Minister on what was meant by the term ‘Direction’;
D. any indication that the Minister sought to discuss what was meant by the term ‘Direction’ with the writer of the reasons;
E. any indication that the Minister discussed what was meant by the term ‘Direction’ with the writer of the reasons;
xxiii. The lengthy reasons pre-drafted by the Department included in the Brief, running to 17 pages and full of minutiae;
xxiv. The inherent unlikelihood that the Department would have drafted lengthy and detailed reasons that could be wasted;
xxv. The fact that the Brief indicates that "the Minister's reasons are dated the same day as the circled note" and the fact that the Brief proposed a sequential approach by which the Minister recorded her decision on Attachment 1 and then turned to the draft statement of reasons to see whether she agreed with those reasons which, combined with their the length and content, “founds an inference that they were drafted and prepared before the … Minister indicated how [s]he proposed to exercise the power” (Mason v Minister for Home Affairs [2020] FCA 1787 [97] (Kenny J)), in which case the pre-drafted set of reasons would have been wasted, had the Minister not circled Option (d), given that they are predicated on the Minister making the decision personally and that the proposed set of reasons has the Minister’s full name and title at the end of the document;
xxvi. The existence of 29 annexures to the Brief listed under ‘Attachment 2’ (i.e. Attachments A to T), running to 244 pages in total and full of minutiae;
xxvii. The claimed existence of at least 280 pages for reading and consideration by the Minister in total: i.e. 8 pages of departmental submission as discussed in Ground 3(a)(xxviii) + 1 page in Attachment 1 + 2 pages in Attachment 2 + 17 pages of reasons in Attachment 3 + 8 pages of legislative provisions attached to the reasons in Attachment 3 + 244 pages in Attachments A to T;
xxviii. The absence in the Brief of a proper summary of those 280 pages. All that the Departmental Submission, claimed by the [r]espondent through [30.1] of the affidavit of Mr Muir affirmed and filed on 18 May 2022 (First Muir Affidavit) to be included in the Brief and to have been cleared by ‘Assistant Secretary’ Mr Luke Morrish, did by way of ‘summary’ was to say that, in response to a notice of intention to consider refusing to grant his visa dated 2 August 2017, the [a]pplicant “submitted that as a former employee of the American Embassy in Afghanistan for the International Security Assistance Forces, he fears repercussions from the Taliban if he returns to Afghanistan”. The purported summary of the Applicant’s representations failed to summarise at least the following representations, which the statement of reasons did not address either:
A. A letter of Mr Jarod Renowden dated 17 August 2017, found in Attachment P (as per the affidavit of Ms Wisser, affirmed and filed on 22 April 2022, page 274), describing the [a]pplicant as “polite, courteous, respectful, honest and hard working”;
B. The [a]pplicant’s ‘Personal Circumstances Form’ dated 26 August 2017, found in Attachment Q (as per the affidavit of Ms Wisser, affirmed and filed on 22 April 2022, pages 275-287), where the [a]pplicant handwrote:
1. In response to a question about the [a]pplicant’s relationship with each child and the role he played in their lives (page 281): “…I see my role as a father to role model an active lifestyle, giving [our daughter] time, space and materials to learn and grow. I help provide our daughter with a safe and stable family environment providing her with praise & encouragement in everything she does”.
2. In response to a question about the impact of refusal of his visa on his child (page 281): “… If she went to live in Afghanistan this would mean needing to leave all her relationships in Australia—which are crucial to her development…”
3. In response to a question about the impact that refusal of his visa would have on his family (page 282): “… A refusal of my visa would mean that my family here in Australia [whom he had identified as his in-laws on the same page] would need to take on extra responsibilities in helping … my … daughter financially, emotionally and psychologically…”
xxix. The absence in the Brief of any indication that the Minister considered such a proper summary;
xxx. The absence in the Brief of any indication of when the Minister received it or who handed it to her;
xxxi. The absence in the Brief of any indication of when the Minister handed it back or whom to;
xxxii. The absence in the Brief of any indication of when the Minister started or finished reading it;
xxxiii. The absence in the Brief of any indication of how many minutes or hours the Minister took to read it;
xxxiv. The absence in the Brief of any indication or suggestion that the Minister could make any amendments to the pre-drafted reasons;
xxxv. The absence in the pre-drafted reasons of any amendments by the Minister;
xxxvi. The absence in the Brief of any comments section for the Minister to comment on, except for the small one referred to in Ground 3(a)(lv)(A);
xxxvii. The absence in the Brief of any indication that the pre-drafted reasons were only a draft (i.e. not in final form);
xxxviii. The absence in the Brief of any options for the Minister to circle indicating her wish to discuss the matter with the Department;
xxxix. The absence in the Brief of any notes indicating or suggesting that the Minister discussed the matter with the Department;
xl. The absence in the Brief of any indication or suggestion that the Minister could seek to discuss the matter with the Department;
xli. The absence in the Brief of any notes indicating or suggesting that the Minister sought to discuss the matter with the Department;
xlii. The absence in the Brief of the identity and contact details of the drafter of the pre-drafted reasons in case the Minister wished to seek clarification from them;
xliii. The absence in the Brief of any contact details of the [a]pplicant in case the Minister, who purported to personally make the decision, wished to personally obtain more information from the [a]pplicant if she was minded to disagree with the drafter of the reasons by affording the [a]pplicant procedural fairness despite not being required to do so;
xliv. The absence in the Brief, on each of the pages which do not contain the Minister’s signature, of her handwritten initials to indicate that she has read each page;
xlv. The absence in the pre-drafted reasons of any highlighting or circling of any of the passages by the Minister;
xlvi. The absence in the Brief of any notes at all by the Minister, apart from her signatures, the circling of Option (d) and the dating of her signatures;
xlvii. The fact that the subjective jurisdictional fact involved in determining, pursuant to s 501(3)(b) of the Act, whether to exercise the discretion to cancel a permanent visa with a potential breach of international non-refoulement obligations and serious human consequences visited upon people, requires care and thoroughness;
xlviii. The Minister’s position and responsibilities within the Executive (especially as a Cabinet Minister, as per the affidavit affirmed and filed by Ms Wisser on 22 April 2022, page 302), which is to be inferred would involve a significant amount of her time, in addition to the time-consuming responsibilities to her constituency;
xlix. The fact that the Minister has purported to personally make other decisions under Part 9 of the Act while she has had Ministerial appointments concerning the administration of the Act and that some, if not many or even most, personal Ministerial decisions involve departmental briefs running to hundreds or thousands of pages each, examples of the length of which were claimed in the pleadings described in the following decisions, which lengths were not disputed by the respective respondents:
A. EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 986 at [11](a)(b) (Perry J): approximately 600 pages;
B. EWV20 as litigation representative for AFF20 v Minister for Home Affairs [2021] FCA 272 at [4] (Griffiths J): more than 1,200 pages;
l. The fact that Ministers with responsibilities under the Act make personal decisions under the Act in addition to decisions under Part 9, which would also involve a significant amount of time, such as decisions:
A. To refuse to grant visas, especially those involving complex issues such as the national interest (e.g. ENT19 v Minister for Home Affairs [2021] FCAFC 217 (Collier, Katzmann and Wheelahan JJ));
B. Involving “dispensing powers” which can only be exercised by the Minister personally, under ss 46A, 46B, 195A, 48B, 72, 91F, 91L, 91Q, 198AE, 351, 417 and 501J of the Act.
li. The inevitable conclusion that, the Minister’s time being finite, the more decisions she personally made, the less time she could spend making each decision and the less thorough her decision-making process was;
lii. The inherent unlikelihood, by reason of particulars 3(a)(i) to (li) and (liii) to (lxvii), that the Minister read the relevant 280 pages of materials before her.
liii. The fact that, even though Mr Muir claimed in the First Muir Affidavit at [30.1] that the Submission comprised a total of 8 pages, such affidavit failed to produce, as part of a single (i.e. self-contained) document, the 8 pages which included the Minister’s circled choices and her signature and date of signature:
A. NM-3, found on unnumbered page 31 of the PDF file containing the First Muir Affidavit as stamped by the Court, comprised a scanned page showing puncher holes on the left-hand side, circles made on each of the 4 ‘[r]ecommendations’ there displayed and a stamp which read:
“RECEIVED
07 DEC 2021
Minister for Home Affairs”
B. NM-4, found on unnumbered pages 33-40 of the PDF file containing the First Muir Affidavit as stamped by the Court, showed 8 pages, the first of which matched the only page in NM-3, except that NM-4 did not show any puncher holes, circles or stamps.
C. In contrast to the single page in NM-3, none of the 8 pages in NM-4 had any puncher holes.
D. The second page of NM-4 contained 2 further ‘[r]ecommendations’ where the Minister would have to circle, neither having been circled.
E. The second page of NM-4 contained a space for the Minister to sign and date, both of which were left blank.
liv. The fact that, curiously, despite the express order of Justice Snaden of 25 March 2022 that “the Respondent file and serve a … court book containing all relevant documents before her at the time of her decision” (emphasis added), the Respondent claimed/revealed for the first time, through [30.1] of the First Muir Affidavit affirmed and filed only almost 2 months later, that the Submission was part of the Brief.
lv. Assuming, as claimed, that the Submission contained all the 8 pages and that the Minister received all such pages, the fact that:
A. the box for her to make comments on the third page of the Submission was very small in light of the significant length and complexity of the materials and had no comments or marks or even any circles in any of the feedback questions such as “Rejected Yes/No”.
B. The Minister made no comments or any marks whatsoever on any of the pages which contained the submission itself from the Department (spanning from paragraphs [1] to [36]) or highlighted any passages in it.
C. There is no indication in NM-3 or NM-4 or in any other materials that:
1. The Minister was invited to discuss the Submission with any delegates, if she wished to do so;
2. The Minister sought to so discuss the Submission; or
3. The Minister so discussed the Submission.
lvi. The fact that, even though Mr Muir claimed in the First Muir Affidavit at [30.2] that the Brief included the 4 attachments to the Submission “which are referred to on the 8th page of the [Submission]” (i.e. Attachments 1 to 4) “and which are reproduced in Ms Wisser's April affidavit at annexure EW-3, pages 23 to 50”, the evidence does not corroborate such a bare claim, which suggests that the Brief did not contain one or more of those 4 attachments:
A. The [r]espondent has failed on multiple occasions to produce evidence that the Brief included all of Attachments 1 to 4 in their entirety, which would have been very easy to produce:
1. When the [r]espondent filed on 8 April 2022 the Court Book which, as per order 1 of Justice Snaden of 25 March 2022, had to contain all relevant documents before the Minister—instead, pages 3 to 22 only show a merge of the Signed Pages with non-scanned pages;
2. When the [r]espondent filed on 6 May 2022 the Supplementary Court Book;
3. When the [r]espondent filed the First Muir Affidavit, with the deficiencies discussed above;
4. When the [r]espondent filed the Second Muir Affidavit, annexures NM-5, NM-6 and NM-7 of which included the Signed Pages, but failed to include all the other pages allegedly included in the Brief, including the first 16 pages of Attachment 3;
B. The said affidavit of Ms Wisser did not contain a single reference to ‘Attachment 4’, contrary to Mr Muir’s assertion at [30.2].
lvii. The fact that the big yellow arrow sticker on what the [r]espondent claims to be page 2 of the Submission as per NM-5 and NM-6, indicating to the Minister where to sign, would not be necessary to be given to a person who meaningfully read the relevant materials, as the place for signature would become readily apparent from simply reading two succinct pages containing the ‘[r]ecommendations’.
lviii. The fact that, disturbingly, especially in light of the expectation that the Respondent act as a model litigant and the overarching obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), the Respondent claims through the Second Muir Affidavit at [11]-[12] that the hard copies of the signed Brief (which allegedly included the Signed Pages) were destroyed on or around 9 February 2022, about 1 month after the [r]espondent had been plainly placed on notice, through Ground 3(a)(vi) of the Originating Application filed on 11 January 2022, that the [a]pplicant squarely raised issues with the hard copies of the Signed Pages. This is especially disturbing in circumstances where Attachment 3 is one of the most important documents in this proceeding.
lix. The fact that it is equally disturbing that the [r]espondent claims through the Second Muir Affidavit at [11]-[12] that she destroyed the hard copy of the Submission about 1 month after the [a]pplicant had raised issues with the hard copies of documents in circumstances where the Submission is one of the most important documents in this proceeding.
lx. The lack of extremely important documents which should have been produced by a [r]espondent expected to act as a model litigant means that an inference already available on the evidence should be drawn with more confidence, namely that the Minister did not receive the entirety of Attachments 3 and 4.
lxi. The fact that the Hon Karen Andrews MP gave inadequate answers to 5 out of the 6 interrogatories administered to her in the form of “I do not recall”, in circumstances where, had she meaningfully read and considered the materials (which included representations on the devastating human consequences that a visa cancellation would bring about to a permanent visa holder who had been living in Australia for over 11 years and to his family in Australia, including at least 3 minor children in Australia at least 1 of which was an Australian citizen), she would be reasonably expected to remember the events in order to give adequate answers.
lxii. The [r]espondent claims through [23] of the First Muir Affidavit that the Brief was assigned to the Minister’s office on 7 December 2021 at 12:09 pm and that the Decision was made 2 days later, whereas the Minister’s diary for the period shows no activities at all concerning the Decision on 9 December 2021 (as per the affidavit of Ms Wisser affirmed and filed on 20 January 2023, annexure EW-10).
lxiii. The Minister’s diary between 7 and 9 December 2021 discloses that, at most, she spent only 2 hours reading the Brief and making the Decision, in a window of less than 24 hours (1:15 pm on 7 December 2021 to 11:30 am on 8 December 2021).
lxiv. There was a belated sense of urgency around Ms Andrews’ decision making, with the decision being “required” to be made before 14 December 2021 (as per the First Muir Affidavit, unnumbered pages 15, 21, 22, 24, 25 and 33). However, objectively, there was no apparent need for the Decision to be made in less than 24 hours given that, even though the Decision was enabled by reason of s 501(6)(g) of the Act by a decision made by the Australian Security Intelligence Organisation as early as 16 November 2021 (CB 8 [15]), it was not until 3 December 2021, 17 days later, that the Department started preparing the Brief (First Muir Affidavit [18]).
lxv. The Submission did not indicate that the Minister was required to consider all of the attached material to form her own understanding of the representations and/or to undertake her own fact-finding based upon that personal consideration where necessary. Rather, the Submission included a summary of the representations made thereby indicating that it was appropriate for the Minister to act upon that summary in forming the required state of satisfaction.
lxvi. The Submission invited the Minister to record her decision on Attachment 1, which contained no suggestion that the Minister was required to, or did, personally consider and understand the materials received.
lxvii. The fact that [77] of McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258 reveals that the Minister for Immigration, also responsible for administering the Act, had made 442 decisions within about 1,087 calendar days as at 3 November 2021 (as per Ms Wisser’s affidavit affirmed and filed on 22 April 2022, page 302), representing an astonishing rate of almost 0.6 decision per business day, which would be extremely time consuming if such Minister had truly read the relevant materials and turned his mind to all such decisions.
77 With that factual landscape surveyed, it is convenient to address in turn each of the three failures that are inherent in ground three of the applicant’s challenge.
A. Failure to meaningfully read and consider material
78 The applicant urges the court to infer from some or all of the factual propositions listed (above, [76]) that Ms Andrews, in fact, did not read and consider at least some of the material before her; or, more accurately, did not do so “meaningfully”.
79 It is not necessary to address (or make specific findings about) each of the vast number of matters to which the applicant points in support of the inference that he asks the court to draw. At its core, his contention is that Ms Andrews had too much to consider in too short a space of time; with the consequence that she either didn’t read or didn’t receive (or both) at least some of what was put together for her.
80 The inference that the applicant invites cannot properly be drawn. Indeed, even accepting the individual factual propositions upon which it rests, the bases upon which that invitation is extended are nothing short of conspiratorial. The evidence quite unambiguously discloses—and I find—that Ms Andrews received from the Department the Brief (comprising the material already described) in electronic and paper form. It totalled some 244 pages.
81 It is not controversial to note that Ms Andrews was advised that it would be preferable for her to make her decision before 14 December 2021. The Department’s Submission stated as much and, as history records, Ms Andrews indulged that preference by making the Cancellation Decision on 9 December 2021. There was a sound basis for expressing and meeting that preference. On 30 November 2021, ASIO issued an adverse security assessment concerning the applicant. By operation of s 38 of the Australian Security Intelligence Organisation Act 1979 (Cth), the applicant was entitled to receive written notice of that assessment within 14 days of its being furnished. Plainly enough, the Department formed the view and Ms Andrews appears to have agreed that, if the applicant’s visa were to be cancelled, it might be preferable that it be cancelled before that notice was received.
82 On 10 December 2021, Ms Andrews’ office sent back to the Department the individual pages that had been marked and/or signed. That was described in evidence as the standard practice. The remaining (unmarked) pages were disposed of.
83 The applicant complains that the versions of the Decision Page and the Statement of Reasons that Ms Andrews signed differ from the form that they assumed when they were sent to her. The differences were minor and have already been described. Regardless, the applicant queries why the Minister has never been able to produce the original hard copy versions of what Ms Andrews signed, as opposed to what his counsel pithily described as the “Frankenstein[’s monster]” versions that were received into evidence. Those versions (or at least the version of the Statement of Reasons) comprise what is evidently a direct print out of the pages that were not marked, to which are married scanned versions of the pages that were.
84 The applicant urges the court to infer from that some measure of sharp practice, either on the part of Ms Andrews or the Ministerial and Departmental staff that were involved. Precisely what they are thought to have done is not easy to discern; but it is apparent that the applicant takes the view that what Ms Andrews got or considered was not (or might not have been) what the evidence suggests that she got or considered. He complains that the Department disposed of the version of the physical Brief with which Ms Andrews was furnished and did so despite questions about its provenance having been squarely raised by his application. That, he says, ought to lead the court reasonably to infer that the full hard copy of what Ms Andrews was given would potentially have assisted him (presumably because it would have disclosed that she did not receive what is now said to have been received).
85 There is nothing in any of that. The processes that applied in dealing with the hard copy Brief with which Ms Andrews was provided and the circumstance in which it came to assume a form that was slightly—and very much immaterially—different to the electronic form that was emailed are well and truly explained by the evidence. Indeed, the picture could not be clearer: Ms Andrews was given the material, somebody stamped it with a boilerplate (and, at least for present purposes, wholly inconsequential) header and footer, some of that was then marked, the marked parts were returned and the rest was disposed of according to standard practice.
86 The alternative case concept is the stuff of wild conspiracy. The applicant’s contention would have the court accept that Ms Andrews received and read only part of what was emailed; and, worse, was then moved to mark some of it in ways that falsely suggested that she had received and considered it all. It suffices to note that I would require evidence much clearer than what here exists before making such a serious finding against anybody, much less a former Minister of the Commonwealth.
87 But that is only one dimension to this first strand of the applicant’s third ground. It is also said that Ms Andrews could not meaningfully have considered the material in the Brief (accepting, for now, that she received it) in the time that she had available.
88 It is said, partly on the strength of calendar records, that Ms Andrews had no more than a couple of hours to consider the material that was given to her. That that is so is by no means clear on the evidence; but even leaving that aside, I do not accept that the material that was provided required more time than that to consider in any event. Much of the 244 pages of attachments in the Brief contained material that did not require more than cursory attention from Ms Andrews. A substantial portion of it—in the order of 142 pages—comprised of counter-terrorism reports, the nature of which would not require prolonged consideration. Of the remaining 102 pages, 12 related to police certificates or documents related to the applicant’s breaches of interim intervention orders, 48 comprised of the applicant’s visa applications and supporting documents, four comprised of identity documents and eight comprised of various training certificates. Very little, if any, of that was worthy of much consideration (if it was relevant at all).
89 That left a further 30 pages for Ms Andrews to consider. Intellectually assimilating what was provided was simply not as significant a burden as the applicant would have the court find. It was certainly not so significant that the court could properly infer that the material went relevantly unconsidered.
90 The circumstances of the present matter differ markedly from those that Colvin J considered in McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258 (hereafter, “McQueen (No 3)”), on which the applicant heavily relies. His Honour there found that the respondent Minister had failed properly to read and consider representations that had been made by the applicant. That finding was subsequently upheld on appeal: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2022) 292 FCR 595 (Mortimer, Banks-Smith and O’Sullivan JJ; hereafter, “McQueen (FC)”). It is convenient to consider the circumstances that led to that finding.
91 Mr McQueen was convicted of drug-related offences and was sentenced to a term of imprisonment of more than 12 months, following which his visa was cancelled under s 501(3A) of the Act. He then made representations to the Minister by which he sought to have that decision revoked. It wasn’t until 16 months after he made those representations that the Minister was provided with a briefing relating to his revocation application. The Minister subsequently determined not to revoke the cancellation.
92 Upon an application for judicial review, Colvin J had occasion to consider the manner in which the Minister had received the “brief” and how the Minister had gone about making his decision. In what the full court described as an “unusual and somewhat bizarre factual situation”, the Minister had taken a photograph of the brief of documents placed upon his lap as he was seated in a car, apparently for the purposes of establishing that he had received and considered it: McQueen (FC), 614 [72] (Mortimer, Banks-Smith and O’Sullivan JJ).
93 The Full Court reasoned that the finding that the Minister had not personally and properly considered the representations that Mr McQueen had made was open because:
(1) the brief contained a summary of the representations made by the applicant there, and a statement which was “likely to encourage the reader to assume the summary is an accurate substitute for a direct consideration of the representations themselves” (McQueen (FC), 610 [54]);
(2) immediately after that summary, the brief invited the Minister to circle one of five “recommendations” (McQueen (FC), 610 [56]);
(3) there were tabs labelled “sign here” which “…were also objectively capable of encouraging the reader to sign off on an outcome based on the summary provided” (McQueen (FC), 611 [57]);
(4) the brief was “back to front” in the sense that it presented an outcome first followed by the reasoning (McQueen (FC), 611 [58]);
(5) there was no express statement to the effect that the Minister had personally considered the representations of the applicant (McQueen (FC), 611 [59]); and
(6) there were no markings or annotations on the brief (McQueen (FC), 611 [61]).
94 Reliance was also placed upon the photograph described above. It was said to reflect that a false “sense of urgency” had attached to the Minister’s decision, consistently with its having been made in a short space of time in circumstances where there was “no apparent need” for haste (McQueen (FC), 609 [47]). The full court noted (at 614 [72]):
This is an unusual and somewhat bizarre factual situation. There is nothing “natural” about the process disclosed by the evidence. In circumstances of no objective urgency or pressing expedition and after long Departmental delays, the Minister gives himself not much more than a 24 hour period in which to make a decision with profound effects for Mr McQueen’s life, a period during which the Minister drove (or was driven) from Canberra to Sydney and which included a period of time overnight, and where the Minister has sworn that he made his decision inside his residence in Sydney but then for some reason the proof of the decision is a photograph taken on the lap of a person in a car. If the process had been interrogated further, perhaps a clearer picture would have emerged…
95 Although there are discrete parallels, the circumstances here are markedly different as a whole. The urgency that attended the Cancellation Decision has already been explained. There is nothing unorthodox about it, nor anything else that should incline the court safely to infer the want of consideration that the applicant alleges. As I have noted—and without intending any disrespect—the applicant’s contention proceeds more by way of conspiracy theory than an orthodox invitation to infer.
96 It is, on that score, prudent to note what might otherwise be presumed. In circumstances where a department has prepared a document for Ministerial review, the court will usually infer that the Minister read it: Stambe v Minister for Health (2019) 270 FCR 173, 190 [74] (Mortimer J); Makarov v Minister for Home Affairs (2021) 286 FCR 412, 435 [88] (Logan, Banks-Smith and Anderson JJ). It is then, an unusual course to infer to the contrary; and one that should require a compelling evidential foundation that rises well beyond conspiracy theory.
97 The matters to which the applicant points do not nearly suffice. They are undoubtedly consistent with what is alleged (namely, with the want of consideration that he says attended Ms Andrews’ decision); but they do not come close to establishing it.
98 There is, in any event, a further issue. McQueen (No 3) involved an application under s 501CA of the Act to revoke a decision made earlier in time to cancel a visa. That statutory process involved the receipt of representations from Mr McQueen as to why the cancellation of his visa should be revoked. A decision under s 501CA(4) of the Act could not validly be made absent consideration of those submissions: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417, 429 [36] (Kiefel CJ, Keane, Gordon and Steward JJ).
99 By contrast, Ms Andrews’ Cancellation Decision proceeded under s 501(3) of the Act. That section permits cancellation if the Minister reasonably suspects, first, that a person does not pass the so-called “character test” and, second, is satisfied that visa cancellation is in the national interest. The Act does not expressly prescribe what material the Minister must consider in order to attain those states of satisfaction. It is not apparent to me (and nor was it explained) that there is anything about the subject matter, scope or purpose of the section (or the Act more broadly) that should require, by implication, that the valid exercise of power under s 501(3) of the Act be conditioned by consideration of whatever is put together in the form of a ministerial brief.
100 Instead—and as with ground one—the applicant submitted that Ms Andrews was obliged to consider the material in the Brief because she chose to. On the strength of the authorities referred to earlier (in particular HRZN, Snedden and AB), that submission cannot be accepted. Absent legal unreasonableness (with which this ground of challenge does not engage), a decision that is based upon an incorrect or incomplete assessment of matters that a decision maker was not obliged to take into account is not a decision made beyond jurisdiction.
101 The applicant says, further, that part of what Ms Andrews was invited, by means of the Brief, to consider was in the nature of representations that he had made concerning his visa. The evidence discloses that, in August 2017, consideration had been given to refusing to grant the visa that the applicant was ultimately granted. The applicant was given notice that that consideration was to take place and, in response, made various representations as to why he should be granted the partner visa for which he had applied. It is a matter of record that his application for a visa was, notwithstanding that course, ultimately successful.
102 Again, it is not apparent to me why Ms Andrews, making a different decision years later under a different section of the Act that turned upon different considerations, was nonetheless obliged properly to consider any or all of what the applicant had said in that earlier context. All that was required under s 501(3) was reasonable suspicion that the applicant did not pass the character test and satisfaction that cancellation of his visa was in the national interest. Although no doubt she was assisted by it, the attaining of those states of satisfaction was not something that required, as a condition to the exercise of the statutory power that followed, consideration of the material that the Department compiled for the purposes of rendering that assistance.
103 Even had I been minded to accept that Ms Andrews’ consideration of the Brief was tainted by the failure alleged by this aspect of ground three, it would follow that that failure was not one that bespoke jurisdictional error.
104 It follows that this dimension to the applicant’s third ground is not made good.
B. Failure to consider merits
105 The analysis just completed suffices also to address the second dimension to the applicant’s third ground of challenge. The same circumstances that were said to warrant an inference that Ms Andrews had failed to read and consider what was given to her were said also to warrant an inference that she had failed meaningfully to consider the issue upon the merits of which she decided.
106 In oral submissions, counsel for the applicant pitched the submission as follows:
…I don’t believe the case is as high as a de facto delegation of personal powers. I plead it in a—I am using a lower threshold, which is that [Ms Andrews] didn’t properly consider the materials. So I would say a de facto delegation of powers is an extreme example of someone not meaningfully considering the materials, and my learned friend, more than once in his final submissions, characterised this ground as alleging a de facto delegation of powers. I don’t—I don’t put the case as high as that...
107 Nonetheless, the applicant persists with his contention that Ms Andrews’ consideration of the Brief that was provided to her—and, more particularly, her decision to proceed with the cancellation of the applicant’s Visa and her adoption of the Statement of Reasons to that end—is insufficient to qualify as meaningful consideration of the question that confronted her. It is said, in effect, that Ms Andrews merely “rubber-stamped” what was prepared for her, rather than bring her own mind to bear upon the relevant merits.
108 Just as the court cannot properly infer that Ms Andrews did not receive or read the contents of the Brief, nor too can it infer that she considered what was provided in anything other than a genuine sense. For reasons equivalent to those outlined in connection with the first aspect of this ground, there is no occasion to infer that the Minister merely rubber-stamped anything.
109 It follows that this dimension to the applicant’s third ground is also not made good.
C. Apprehended bias
110 The applicant next asserts that the Cancellation Decision was a product of apprehended bias. Specifically, he submits that, “[a] hypothetical fair-minded lay observer, informed of the relevant facts and circumstances, might apprehend that Ms Andrews might have made [her] decision otherwise than on an independent and impartial evaluation of the merits of the case.”
111 Again, that contention rests on the same particulars as the other dimensions that are inherent in the applicant’s third ground. As with them, the submission proceeds on the footing that there was an unorthodox, even sinister, character to the manner in which Ms Andrews received, read and considered the Brief that the Department prepared for her. For the reasons already explored, I do not accept that there was.
112 None of the factual propositions that the applicant advances to establish a reasonable apprehension of bias suffices—individually or in any combination—to do so. The adjective “reasonable” bears repeating. Let it be assumed, momentarily, that the applicant and his advisers genuinely perceive the Cancellation Decision to have been the product of some kind of bias against him. The searching and conspiratorial bases upon which that perception rests place it beyond the realm of what is reasonable. The process of decision making here was orthodox. Ms Andrews’ decision—like all such decisions—is open to legitimate criticism on its merits; but it cannot reasonably be impugned as a product of bias, apprehended or otherwise.
113 As with the others, this aspect of the applicant’s third ground of challenge is not made good.
GROUND FOUR: APPOINTMENT OF MR MORRISON
114 The applicant’s fourth and final ground of challenge concerns the concurrent appointments of individuals other than Ms Andrews to the role of Minister for Home Affairs. It is a matter of some notoriety that, during the final term of his government, the former Prime Minister, Mr Scott Morrison MP, and others were appointed in secret—or, at any event, without public or Parliamentary oversight—to various ministries. History now records that both Mr Morrison and the Hon Ben Morton MP were appointed, concurrently with Ms Andrews, as Minister for Home Affairs. In Mr Morrison’s case, that occurred on 6 May 2021. In the case of Mr Morton, it occurred on 30 March 2021. The applicant submits that, by reason of those appointments, Ms Andrews’ Cancellation Decision was vitiated by jurisdictional error, which this court should now correct by granting the relief that is sought.
115 The contention is advanced at two levels. First, the applicant says that Ms Andrews ceased to be the Minister on 6 May 2021, when Mr Morrison was sworn in as Minister for Home Affairs (or possibly earlier upon Mr Morton’s appointment). That is said to be so because Chapter II of the Commonwealth Constitution requires, by implication, that departments of state be administered only by a single minister; or, at the least, that the office of Minister be occupied only by a single person. The applicant’s contention is thereafter straightforward: if she was not the Minister at the time that she purported to cancel the applicant’s visa, then Ms Andrews was not authorised by the Act to do so and her decision is amenable to relief in the nature of certiorari.
116 Second, the applicant contends that the appointment of two ministers had the effect that the Cancellation Decision was otherwise attended by jurisdictional error, either in that it was legally unreasonable or was a product of some new species of jurisdictional error.
117 I will address each contention in turn.
A. Implied constitutional limitation
118 The applicant contends that the simultaneous appointment of two ministers responsible for administering the same department is incompatible with—and, therefore, is implicitly prohibited by—the system of responsible government that is the hallmark of Chapter II of the Commonwealth Constitution. Responsible government, he maintains, requires that a single person be accountable for the activities of the Department.
119 The applicant relies on observations made in obiter by Gummow and Hayne JJ in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ—hereafter, “Re Patterson”). That case concerned whether a member of Parliament who had been appointed as a parliamentary secretary could exercise the personal powers of the more senior Minister. The High Court found that she could. In that regard, Gleeson CJ observed (at 403 [17]):
…[t]here is nothing inconsistent with s 64 [of the Commonwealth Constitution] in the appointment of two persons to administer a Department…The concept of administration does not require that there be only one person who administers, and the concept of responsible government does not require that there be only one person answerable to Parliament for the administration of a Department. Under the appointments made by the Governor-General, it is for the Minister and for the Parliamentary Secretary to make their own arrangements as to the method by which the Department will be administered. It is for Parliament to determine the procedures by which those two persons will answer for the conduct of such administration. To repeat what was said in Egan v Wills, responsible government is a concept based upon a combination of law, convention and political practice. The characteristics of responsible government are not immutable. They are certainly capable of accommodating the arrangements made by the Governor-General in the present case.
(references omitted)
120 Nonetheless, the applicant submits that a different position obtains in circumstances where more than one person purports to occupy the same ministerial office, as opposed to different offices responsible for the administration of the same department. In Re Patterson, Gummow and Hayne JJ made the following observations (albeit in obiter) on that score (at 458-459 [208]-[209]):
The issues which thus arise in the past have attracted differences of opinion between distinguished constitutional lawyers. In 1981, the Senate Standing Committee on Constitutional and Legal Affairs reported into the constitutional qualifications of members of Parliament. In Ch 6 of that Report extracts were set out from opinions held by the Attorney-General’s Department from Mr GE Barwick QC and Mr D I Menzies QC. In his Opinion, Sir Garfield Barwick stated:
"The office of a Queen's Minister of State is not described as such in the Constitution. Its identity is to be gathered from sections 64 and 65. The Governor-General may appoint officers who hold office during pleasure. If such an officer is a Minister of State, his office is that of a Minister of State. The office is that of administering a Department of State. It is that office to which [s 44(iv)] does not apply. Not only is the singular used in the text of the sub-section, but in the nature of things it seems to me the office of administering a Department is a single office. The form of the sections (64 and 65) further suggests that the office should be occupied by one incumbent, though there may be some room logically for admitting the possibility of a joint occupancy of the office of officers jointly responsible for the administration of the department in question.
In my opinion, however, the right construction of the Constitution requires that there should be a sole occupant of the office, and but one officer responsible for the administration of a department.
But, whatever the propriety of that view, it is to my mind certain that an officer assisting the Minister who occupies the office of administering a Department of State cannot be said himself to occupy the office itself. The very description of 'assistant' denies the possibility."
Sir Douglas Menzies took a contrary view. He said that he did not read s 64 of the Constitution as:
''requiring that only one person may be appointed to administer a department and I consider that the Governor-General could appoint a number of officers to administer a department and in particular the Department of Defence. I would see no objection to one Member of Parliament being appointed Minister of Defence and other members appointed Assistant or Junior Ministers of Defence provided that the appointment in each case is to administer the Department. In my opinion to administer a department includes to take part in the administration of a department. The division of labour among the Ministers would I think properly be a matter ultimately for arrangement by the Prime Minister who is responsible for advising the Governor-General to make the appointments. Any officer so appointed could of course participate in the sum provided by Parliament under s 66 without incurring any disqualification under s 44." (Emphasis added.)
The balance of academic opinion has supported the construction given to s 44 by Sir Douglas Menzies.
(references omitted)
121 The applicant submits that “the opinions from both ‘distinguished constitutional lawyers’ were in tandem in one respect: the same office could be occupied by only one incumbent at any point in time.” Respectfully, that submission is misplaced. The academic debate recited in Re Patterson did not concern the notion that there could only ever properly be one incumbent in any given ministerial office. It concerned the constitutional propriety of multiple ministerial offices administering a single department. As to that, there were, as their Honours observed, divergent views.
122 Gummow and Hayne JJ went on in Re Patterson to observe (at 464 [220]) that it is “…for each chamber by its own internal procedures and regulations to provide systems which facilitate the accountability of Ministers for the particular form of administration of the department of State in question”.
123 The ratio of Re Patterson is clear. The appointment of more than one person to administer a ministry of state is not a circumstance that offends s 64 of the Commonwealth Constitution: Re Patterson, 403 [17] (Gleeson CJ), 415 [65] (Gaudron J), 459-460 [210]-[211], 464-465 [221] (Gummow and Hayne JJ). That very proposition was recently endorsed in Davis v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2023) 97 ALJR 214, 225 [24] (Kiefel CJ, Gageler and Gleeson JJ).
124 There is, then, no constitutional imperative for concluding that the appointments of Mr Morrison or Mr Morton as Minister for Home Affairs brought with it the cessation of Ms Andrews’ tenure. I do not accept that, when she made the Cancellation Decision, Ms Andrews lacked authority to that end for want of a continuing commission. It follows that I would reject this aspect of the applicant’s fourth ground of challenge.
B. Legal unreasonableness and/or new species of jurisdictional error
125 The applicant next submits that Ms Andrews’ Cancellation Decision was either legally unreasonable or otherwise attended by a “new species of jurisdictional error”.
126 The basis upon which both contentions rest is as follows. Because Mr Morton’s and Mr Morrison’s appointments as Minister for Home Affairs were effected secretly (or without public scrutiny), neither Ms Andrews nor anybody within the Department could have known that it was open to them, in place of Ms Andrews, to consider whether the applicant’s Visa should be cancelled. Had that been known, outcomes other than the cancellation of the applicant’s Visa might have eventuated. The error, then, was said to lie in the obliviousness attending the appointments (on the part of both of Ms Andrews and those within the Department who referred for her consideration the potential cancellation of the applicant’s Visa).
127 There are at least two reasons to reject the applicant’s contention.
128 First, it should fail for want of proof of the central factual proposition that underpins it: namely, that the appointments were unknown to Ms Andrews and those within the Department who referred for her consideration the potential cancellation of the applicant’s Visa. The applicant did not lead any evidence to establish that lack of knowledge and there exists no proper basis to infer it.
129 In saying so, I should acknowledge the invitation that the applicant extended to the Minister to either “…concede[ ]that neither Ms Andrews nor the Department’s Secretary knew of Mr Morrison’s appointment at the time of the Decision or else make both of them available for cross-examination”. The Minister declined on both fronts. Even assuming that, relying upon Jones v Dunkel (1959) 101 CLR 298 (Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ), I might properly draw an inference against the Minister in light of that, the most that might be said is that the lack of knowledge that is asserted could be inferred more readily than it might otherwise be. So to acknowledge, however, is not to relieve the applicant of establishing some evidential basis for that inference. Acknowledging the undoubtedly unorthodox manner in which the 2021 appointments appear to have transpired, I am not persuaded that such a basis here exists.
130 But even if that be wrong, the applicant faces a more significant hurdle. There is nothing about the legislative scheme—and certainly not anything that the applicant has identified—that requires a Minister who exercises power under s 501(3) of the Act to have knowledge that, or to consider whether, others are also possessed of such powers. How, in the absence of such a requirement, a decision to exercise a statutory power in the absence of such knowledge might possibly (and merely for that reason) be impugned as legally unreasonable is anything but clear. I do not accept that it properly could be.
131 As to the “new species” of jurisdictional error, it was said that:
…the species of jurisdictional error in administrative decisions exemplified in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [14] are not a rigid taxonomy and “are not to be taken as marking the boundaries of the relevant field”. A lack of awareness on the part of an administrative decision-maker (at least on the part of a Minister exercising powers which cannot be exercised by a delegate), or on the part of those referring a matter to such a decision-maker for a potential decision, of important structural aspects of the decision-making framework, such as the existence of a co-Minister who was able to exercise the same powers instead, can give rise to a jurisdictional error, as here.
(references omitted)
132 I reject the applicant’s contention. It is not at all clear why (and I do not accept that) the exercise of statutory power should here be conditioned—whether as a matter of implication arising from the subject matter, scope or purpose of the statute, or otherwise—upon the decision maker in whom the power is vested first being aware and considering that others are similarly entrusted. If there were such a requirement, there would be no need to invent a new species of jurisdictional error. But even were that not so, it is not for this court—and particularly not for a judge sitting at first instance—to take such a “bold step”: Minister for Environment v Sharma (2022) 291 FCR 311, 485 [753]-[754] (Beach J, with whom Allsop CJ and Wheelahan J agreed in the result).
133 This aspect of the applicant’s fourth ground is not made good.
DISPOSITION
134 The Cancellation Decision was not a product of jurisdictional error as alleged. That being so, there is no occasion to entertain the grant of prerogative relief and the application must (and will) be dismissed. The Minister seeks her costs and there is no reason why they should not follow the event. The usual order will ensue.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. |
