Federal Court of Australia

BRO18 v Minister for Home Affairs [2023] FCA 1193

ORDERS

THE COURT ORDERS THAT:

1.    Leave to extend time to rely on the originating application dated 4 July 2022 be granted.

2.    The application be allowed.

3.    A writ of certiorari be issued quashing the respondent’s decision made under s 501(2) of the Migration Act 1958 (Cth) on 10 August 2017 to cancel the applicant’s visa (the decision).

4.    A writ of mandamus be issued requiring the respondent to reconsider the decision according to law.

5.    The respondent pay the applicant’s costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J:

1    The applicant seeks an extension of time pursuant to s 477A(2) of the Migration Act 1958 (Cth) to review the respondent’s (Minister’s) decision to cancel the applicant’s Class XA Subclass 866 Protection (Permanent) visa (Decision or MD), made on 10 August 2017, pursuant to s 501(2) of the Act.

2    The applicant previously sought an extension of time to challenge the Decision before this Court, and that application was dismissed: BRO18 v Minister for Home Affairs [2020] FCA 688. In rejecting the applicant’s extension of time application, Banks-Smith J determined that the Full Court’s decisions in Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 and Makasa v Minister for Immigration and Border Protection [2020] FCAFC 22; 376 ALR 191 did not assist the applicant’s case: at [88]. The applicant accepts that this was the correct conclusion.

3    Following the delivery of judgment in BRO18, the High Court handed down its reasons in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430, in which (at least on the applicant’s submission in this proceeding) the High Court expressly departed from the approach taken by the Full Court. In this proceeding, the applicant contends that the High Court’s approach in Makasa directly applies to his case and demonstrates that the Decision is invalid.

4    This matter was re-docketed to me on 28 July 2023 and was listed for hearing on 18 August 2023 before the previous docket judge. After corresponding with the parties and a brief case management hearing, noting that the applicant has been in immigration detention for some time, I determined to retain the hearing date initially listed before the previous docket judge.

5    The applicant did not file a formal written application for an extension of time using the prescribed form, but nevertheless made an application orally and in submissions. The Minister took no issue with any irregularity as to the filing of such an application. I have proceeded, as the parties have, on the basis that an application for an extension of time was made.

6    For the following reasons, I grant the applicant’s extension of time application and I find that the Minister’s error in finding that the applicant had failed to pass the character test for the purposes of s 501(2) amounted to jurisdictional error.

Background

7    The applicant is a citizen of Burundi who was born in 1982. He arrived in Australia on 13 February 2002 and was granted the visa on 5 January 2007.

8    The applicant has a lengthy criminal history. Relevantly, in December 2008 the applicant was convicted in the District Court of Western Australia of aggravated burglary and commit offence in dwelling and breach of violence restraining order in circumstances of aggravation. He was sentenced to 12 months imprisonment for the burglary conviction and six months for the breach of the restraining order to be served concurrently. On the same day the applicant was convicted in the Magistrates Court of Western Australia of the offence of aggravated assault occasioning bodily harm, and sentenced to six months’ imprisonment (2008 convictions).

9    On 2 April 2009, the applicant was notified of the Minister’s intention to consider the cancellation of his visa pursuant to s 501(2) of the Act. The letter notifying the applicant of this intention informed him that the information which could be relied upon was a transcript of District Court proceedings and an extract of Magistrates Court proceedings, both dated 18 December 2008. The transcript and extract included information relating to the 2008 convictions. Accordingly, it may be inferred that the decision was made on that basis. The parties agree that this decision was based on the 2008 convictions. On 31 July 2009, a delegate of the Minister determined not to cancel the applicant’s visa.

10    The applicant was then convicted of several other offences between June 2009 and January 2017, which resulted in significant fines, community-based orders and suspended terms of imprisonment.

11    On 6 March 2015, the applicant was again notified of the Minister’s intention to consider cancelling his visa.

12    On 10 August 2017, the Minister (acting personally) cancelled the applicant’s visa on character grounds pursuant to s 501(2) of the Act.

The Minister’s 2017 Decision

13    The Minister determined that the applicant did not pass the character test, specifically s 501(6)(a) (namely, the applicant has a substantial criminal record as defined in s 501(7)(c) of the Act): MD[5]. In finding that the applicant had not satisfied him that he passed the character test, the Minister relied upon the 2008 conviction for “aggravated burglary and commit offence in dwelling”. As referred to above, this offence had previously been relied upon by the Minister when he was considering whether to cancel the applicant’s visa in 2009.

14    The Minister referred explicitly to the 2008 convictions at MD[11]–[13] and thereafter to the applicant’s other criminal convictions which did not involve custodial sentences. It is worthwhile extracting the Minister’s Decision at this point (at MD[11]–[15]):

11. On 18 December 2008, [the applicant] was convicted in the District Court of Western Australia at Perth of aggravated burglary and commit offence in dwelling, and breach of violence restraining order in circumstances of aggravation and was sentenced to twelve and six months imprisonment respectively. The offences occurred on 13 September 2008. [The applicant] assaulted his former partner, who was nine months pregnant at the time of the assault. He was in her residence without her permission and was subject to a violence restraining order at the time he assaulted her.

12. I am mindful that in 2006, [the applicant] assaulted the same partner by kicking her in the abdomen when she was six months pregnant.

13. On 18 December 2008 [the applicant] was convicted in the Magistrates Court of Western Australia at Perth of aggravated assault occasioning actual bodily harm and sentenced to a term of imprisonment of six months. The Magistrate did not provide a description of [the applicant’s] offending however he described the offence as a ‘serious assault’.

14. An Immigration report dated 16 March 2009 describes the circumstances of this offence; after a verbal altercation with his partner, [the applicant] grabbed her around the neck with both hands, using force to strangle her. The victim passed out on the laundry floor where [the applicant] repeatedly punched her in the face. During the assault the victim was in and out of consciousness and [the applicant] made comments to her that if she went to police, their baby would be taken into care like their two other children.

15. I note that [the applicant] also has a lengthy record of criminal convictions with non-custodial sentences for violent offences, drug offences, dishonesty offences, stealing, burglary, breaches of judicial orders, driving offences and drink driving offences between 8 June 2006 and 19 January 2017. I note comments by the Magistrate on 31 October 2014, that [the applicant] ‘...is starting to develop a serious criminal record’.

(Emphasis in original.)

15    Ultimately, when viewed cumulatively, the Minister concluded that the applicant’s criminal record is serious, and has come at a substantial cost to the Australian community: at MD[16]–[17].

16    The Minister also considered the risk posed by the applicant to the Australian community, and whilst the Minister noted that there was evidence before him as to the trauma that the applicant had suffered, the Minister ultimately concluded that there was an ongoing likelihood the applicant would re-offend: at MD[19]–[35]. This was particularly so given the applicant’s “ongoing offending and use of alcohol, along with his poor response to non-custodial sentences and a warning as to his visa status”: at MD[34].

17    The Minister considered the best interests of minor children, noting that the applicant has two biological children under 18 years of age: at MD[36]–[43]. Whilst the Minister found it is in the best interests of the applicant’s children that his visa not be cancelled, this consideration was given less weight: at MD[41], [43].

18    The Minister also found that, due to the serious nature of the applicant’s offences, the Australian community would expect that he not hold a visa: at MD[44]–[46]. The Minister also noted that his Department found that Australia owed the applicant non-refoulement obligations (at MD[48]), and noted the emotional impact that the cancellation of the applicant’s visa would have on the applicant’s family: at MD[53]–[58]. The Minister also found that the applicant would face significant impediments if he were to return to Burundi: at MD[59]–[63].

Ground of review

19    The applicant’s proposed ground of review is as follows:

The Minister’s decision to cancel the applicant’s Class XA Subclass 866 Protection (Permanent) visa under section 501(2) of the Act on 10 August 2017 (the 2017 Decision) was made without power and/or is a nullity and/or is void ab initio.

Particulars

(a)     On 18 December 2008 the applicant was convicted in the District Court of Western Australia at Perth of aggravated burglary and commit offence in dwelling and sentenced to 12 months imprisonment (the 2008 conviction).

(b)     On 2 April 2009 the Department of Immigration and Citizenship (the Department), on behalf of the Minister, notified the applicant that it was considering whether the cancel the applicant’s visa pursuant to s 501 of the Migration Act 1958 (Cth) (the Act) on the basis that he did not pass the character test by reason of the 2008 conviction.

(c)     On 31 July 2009 the Department notified the applicant that a delegate of the Minister had determined not to cancel the applicant’s visa under s 501 of the Act.

(d)     As a consequence, and in light of the High Court’s decision in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (Makasa), the power to cancel the applicant’s visa under s 501 of the Act on the basis that he did not pass the character test by reason of the 2008 conviction was spent and no longer available to the Minister.

(e)     However, by the 2017 Decision, the Minister purported to cancel the applicant’s visa on the basis that he did not pass the character test by reason of the 2008 conviction.

(f)     The 2017 Decision was therefore made without power and/or is a nullity and/or is void ab initio.

20    The applicant seeks a writ of certiorari that the Decision be quashed, an injunction restraining the Minister and her officers, servants and agents from taking action upon, or giving effect to, the Decision, and costs.

The evidence

21    In support of his application, the applicant relied upon the following evidence:

(a)    an affidavit of Alison Mary Battisson (the applicant’s solicitor) affirmed on 4 July 2022;

(b)    an affidavit of Shira Nina Sebban (a migration agent working pro bono for the applicant’s solicitors) affirmed on 20 June 2023; and

(c)    an affidavit of the applicant affirmed on 12 July 2023.

22    The affidavits were admitted into evidence without objection.

The extension of time application

23    Pursuant to s 477A of the Act, an application to this Court for a remedy to be granted in the Court’s original jurisdiction in relation to a migration decision must be made within 35 days of the date of the migration decision, unless the Court orders otherwise. Section 477A is extracted as follows:

477A Time limits on applications to the Federal Court

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

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

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

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

(3)     In this section:

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

(4)     For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).

(5)     To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

24    When considering whether to grant an extension of time, relevant considerations include the length of the delay, the adequacy of the explanation for the delay, any prejudice that arises from the grant of an extension and the merits of the proposed substantive application: see, eg, SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33].

25    Here, the applicant is bringing a second challenge to the Minister’s 2017 Decision but for reasons which are different to those previously advanced because they arise from a decision of the High Court, in Makasa, handed down in February 2021. I accept that there is no bar to bringing a second extension of time application: Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 at [72]–[73]; Re Golding [2020] HCA 38; 94 ALJR 1014 at [6]; Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109 at [4]. In this case, the applicant contends it is particularly important that there be no such bar given the “fundamental change in circumstances” brought about by the High Court’s judgment Makasa. I accept this characterisation of the circumstances.

26    For the reasons which follow, I will extend time for the applicant to bring this application.

Length and explanation for the delay

27    I accept the Minister’s submission that the true length of delay is five years not 18 months because the relevant period is that required by the legislation: Section 477A(1) requires an application for judicial review of the Minister’s decision to be commenced within 35 days of the date of the Decision. The delay comprises five years from the date of the Minister’s Decision (10 August 2017) and when this proceeding was commenced on 6 July 2022. However, the critical period requiring analysis is the time that has elapsed between delivery of judgment in Makasa (3 February 2021) and the applicant bringing his second extension of time application (6 July 2022), which is almost 18 months. This is so given the sole basis for review arises from the holding in Makasa.

28    As a consequence, I accept that the applicant’s delay is very significant and accordingly a persuasive explanation is required: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; Jess v Scott (1986) 12 FCR 187 at 195.

29    The Minister submitted that the applicant’s explanation for the delay is not satisfactory for substantial parts of that 5 year period for the following reasons:

(a)    The applicant’s first challenge to the Decision was commenced on 29 March 2018, which was itself seven months out of time. The Minister submitted that no adequate reason was given for this initial delay.

(b)    There is no satisfactory reason for the delay between the delivery of judgment in BRO18 (on 22 May 2020) and the engagement of the applicant’s former legal representatives in February 2021. The Minister submitted that it is “well-established” that an inability to obtain legal advice or representation is not, of itself, an adequate explanation for delay: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [37]; AZS21 v Minister for Home Affairs [2021] FCA 392 at [16]; Tran at [35].

(c)    After February 2021, the applicant sought to challenge BRO18, however this challenge was dismissed by consent on 30 July 2021. The Minister contended that there was no explanation as to why the applicant did not engage his current legal representatives until mid-May 2022.

30    With respect to the critical period, questions arise with respect to parts of the explanation, but I note that: (a) linguistic barriers impeded the applicant’s ability to identify any error on the part of the Minister without legal assistance; (b) whilst the applicant sought and obtained pro bono legal assistance in or around May 2021, his then legal advisors did not identify the point arising from Makasa; (c) the applicant’s current legal representatives have sought an explanation from his former legal representatives to no avail; (d) his former legal representatives advised him to appeal BRO18, despite such an appeal being plainly prohibited by s 476A(3)(b) of the Act; and (e) following the dismissal of the applicant’s appeal as incompetent on 30 July 2021, the applicant engaged his current legal representatives pro bono in mid-May 2022. They thereafter promptly filed the present application.

31    I accept that there is a lacuna between the dismissal of the applicant’s incompetent appeal in July 2021 and him obtaining assistance in mid-May 2022. However, the applicant did provide some explanation for this: He has been detained at Yongah Hill since January 2021 and has had limited access to a phone and computers; he struggles to read and write; during the pandemic the Yongah Hill detention centre was closed down completely; and since 2020 his face-to-face contact with anyone outside the detention centre has been limited to his son and his current legal representatives. Further, the evidence revealed that some time after the filing of the incompetent appeal in 2021, the applicant’s then counsel left Australia to work overseas and his solicitor left her former firm’s employ. In addition, there is evidence that the applicant then sought assistance from Ms Sebban in March 2022 (who had previously met the applicant in March 2019 when she had visited Villawood Immigration Detention Centre in her capacity as a member of Supporting Asylum Seekers Sydney (a volunteer refugee advocacy communal organisation)).

32    In this respect, I note that there was evidence that the applicant’s then legal representatives were made aware of the Makasa decision before bringing the incompetent appeal of BRO18. However, there is no explanation for their failure to challenge BRO18 on the basis of Makasa. I do not accept the Minister’s submission that it can be inferred that their inaction comprised a “deliberate tactical decision”. The fact that the incompetent appeal was brought, in the circumstances, is perplexing, as is the fact of the changed circumstances of the applicant’s former counsel and former solicitor referred to above. It is not clear when, proximate to filing of the incompetent appeal, his counsel left Australia and his then solicitor left her former firm’s employ. Accordingly, I am unable to infer what the reason(s) were and whether a conscious decision to not challenge Makasa was made. However, given my reasons below, I do note that, if there had been such a decision, it would have been in error and account may be taken of representative error: Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14; 389 ALR 1 at [27]–[28] and Susaki v Minister for Immigration & Multicultural Affairs [2002] FCA 1229 at [6]–[7].

Prejudice

33    I accept that there is a “clear public interest” in the prompt disposition of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 at [5]; WQRJ at [41]. I also accept that the Minister has a legitimate interest in the timely disposal of visa applications and decisions concerning the cancellation of visas: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30]; Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [89]; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; 192 ALR 71 at [62]. I accept also that a greater prejudice exists where multiple extension of time applications, brought years apart, are allowed.

34    However, the applicant will suffer very significant prejudice should his extension of time application be refused. The applicant contends that he faces the prospect of indefinite immigration detention in Australia, given it has been found that Australia owes him protection obligations and cannot return him to Burundi. Counsel for the Minister submitted that Australia cannot remove an applicant to a country in respect of which a protection finding has been made for the applicant, due to amendments made to s 197C of the Act by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). However, the Minister impressed upon me that there was no evidence as to whether the applicant would, in fact, be indefinitely detained, noting that this case was not about the reasonable practicability of removal. Given the same, the Minister submitted that the Court could not consider the prospect of indefinite detention as the necessary consequence when determining the prejudice faced by the applicant. I note that the applicant has been in detention for six years, the Minister has an obligation to remove an unlawful non-citizen from detention as soon as reasonably practicable (s 198(2A) of the Act) and the Minister accepts that the applicant cannot be returned to Burundi. In the circumstances, I am able to infer that the applicant has been already detained for a long period and that there is no certainty as to when that period will end. On that basis, I find it difficult to understand how the Minister cannot accept that the applicant will suffer very real prejudice if the application for leave is not granted.

35    Accordingly, it is my view that time should be extended for the following reasons. Despite the very lengthy delay, it is relevant that it was not until the delivery of judgment in Makasa (on 3 February 2021) that the applicant’s claim crystallised. Accordingly, my attention is drawn to the 18 month delay. Whilst I accept that it is not clear why the applicant’s legal representatives failed to bring an application promptly after Makasa, here account must be taken of the applicant being detained throughout the delay period, having linguistic barriers and not being in a position to identify the Makasa error himself. In particular, it is my view that his argument has substantial merit and that he will suffer significant prejudice if the leave is not granted (he will remain in immigration detention for an unknown period). These factors weigh the balance in favour of leave being be granted.

The substantive application

36    The substantive application concerns whether the Minister was entitled to re-exercise his power under s 501(2) in the circumstances.

37    Section 501(2) (at the relevant time) provided:

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.

38    Subsections (6)–(7) defined the circumstances where a person does not satisfy the “character test” and what comprises a “substantial criminal record”. They provided:

Character test

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

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

(aa)     the person has been convicted of an offence that was committed:

(i)     while the person was in immigration detention; or

(ii)     during an escape by the person from immigration detention; or

(iii)     after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)     the person has been convicted of an offence against section 197A; or

(b)     the Minister reasonably suspects:

(i)     that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)     that the group, organisation or person has been or is involved in criminal conduct; or

(ba)     the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)     an offence under one or more of sections 233A to 234A (people smuggling);

(ii)     an offence of trafficking in persons;

(iii)     the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

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

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

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

the person is not of good character; or

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

(i)     engage in criminal conduct in Australia; or

(ii)     harass, molest, intimidate or stalk another person in Australia; or

(iii)     vilify a segment of the Australian community; or

(iv)     incite discord in the Australian community or in a segment of that community; or

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

(e)     a court in Australia or a foreign country has:

(i)     convicted the person of one or more sexually based offences involving a child; or

(ii)     found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)     the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)     the crime of genocide;

(ii)     a crime against humanity;

(iii)     a war crime;

(iv)     a crime involving torture or slavery;

(v)     a crime that is otherwise of serious international concern; or

(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); or

(h)     an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

Substantial criminal record

(7)     For the purposes of the character test, a person has a substantial criminal record if:

(a)     the person has been sentenced to death; or

(b)     the person has been sentenced to imprisonment for life; or

(c)     the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)     the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)     the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

(f)     the person has:

(i)     been found by a court to not be fit to plead, in relation to an offence; and

(ii)     the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)     as a result, the person has been detained in a facility or institution.

39    Subsection (7A) prescribes how concurrent terms of imprisonment are to be treated when working out the total term of imprisonment for the purpose of the character test and provided:

Concurrent sentences

(7A)     For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example:     A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.

40    It is apparent that the review involves the determination of four questions:

(a)    whether time should be extended;

(b)    whether the Minister’s decision constitutes an impermissible re-exercise of power under s 501(2) by reason of the Minister’s reliance on the 2008 convictions (contrary to the reasoning in Makasa);

(c)    whether the threshold of materiality applies to an error of this kind; and

(d)    whether, if it does, the error was material.

41    The parties agreed that the Minister had erred in relying on the 2008 convictions for the purpose of satisfying the preconditions under s 501(2). Accordingly, having decided the extension of time issue, the remaining dispute concerns the resolution of the latter two questions.

42    Both questions require a consideration of the bounds of the exercise of power under s 501(2) of the Act.

43    The following of the applicant’s submissions appeared uncontroversial:

(a)    in order for an exercise of s 501(2) to be valid, the Minister must stay within the legal limits of his or her decision-making authority conferred by the Act. If a decision exceeds that authority, it lacks statutory force and is therefore invalid: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [29]. The statutory limits of the decision-making authority conferred by statute are determined through statutory interpretation: MZAPC at [30].

(b)    regarding s 501(2)(a), the Minister must hold the relevant state of suspicion, and that suspicion must be formed reasonably and on a correct understanding of the law: Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57]. If these conditions are not satisfied, there is no state of reasonable suspicion as required by s 501(2)(a), and there is therefore no power to cancel a visa: Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [59]–[60].

(c)    the High Court agreed with the approach taken by Colvin J in Brown v Minister for Home Affairs [2018] FCA 1722, namely that, once the power in s 501(2) has been exercised in respect of facts constituting a failure to pass the character test such that a visa not be cancelled, the power in s 501(2) “cannot be re-exercised in respect of the same failure to pass the character test to decide to cancel the visa” (see [23] of Makasa). Further, the High Court held as follows (at [55]):

Hence, s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the AI Act, to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker, be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa.

(Emphasis added.)

44    By reason of the same, the parties agreed that the Minister had erred in his 2017 Decision when relying on the 2008 convictions for the purpose of being satisfied that the applicant did not pass the character test, given a delegate of the Minister had relied on the 2008 convictions in his earlier decision on 4 August 2009 for the purpose of being satisfied that the applicant did not a pass the character test.

Does the threshold of materiality apply and if so was the error material?

45    It is my view that the threshold of materiality applies in this case. The applicant accepted that legislation is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance with a condition that is expressly or impliedly required to be observed in the course of a decision-making process: MZAPC at [31]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]–[30].

46    However, the applicant submitted, as one of his arguments, that the requirement of materiality does not apply in the case of fundamental errors, citing DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 at [115] and Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555 at [49]. Neither of these authorities can be read to have found or expressed a view that the threshold of materiality need not be met in the case of fundamental error.

47    In DQM18 at [115], Bromberg and Mortimer JJ addressed the question of fundamental errors and materiality, albeit indirectly (in the sense of using those errors as a means to illustrate a different point about materiality). Their Honours held that inferences about the subjective state of mind of the decision-maker should not be taken into account in the materiality enquiry (ie to suggest that the Minister’s state of mind was such that, even but for the error, they were so convinced of the outcome that they would have made the same decision anyway). They opined that the decision-maker’s subjective state of mind should not be taken into account because it would mean, even where a very serious breach occurs, for example an obvious misconstruction of a statute, such a breach would be immune from the scrutiny of judicial review. However, their reasoning appeared to suggest that certain breaches were of a character that means that they are always jurisdictional, with the implication that materiality in the case of such breaches either does not apply, or the threshold is always met.

48    In Nguyen at [49], the Court addressed the question of fundamental errors and materiality more directly. There, the Minister had wrongly assumed that he could not seek submissions from the applicant because of the operation of a provision which did not require the Minister to afford natural justice, and the question was whether that error was material. The Court held:

Another available analysis is that the error of law was material because it was a fundamental error and that error could have affected the Minister’s decision. More simply, the Minister’s exercise or purported exercise of the power was affected by his misunderstanding of the nature of the power so that he therefore exceeded his authority or power. The materiality is that, having misunderstood the nature of the power, the Minister did not consider whether to get, or allow the appellant to provide, evidence as to his circumstances in the intervening five months, or submissions on that issue. The effect of the Minister’s misunderstanding was, in part, that the appellant did not know that the Minister was considering exercising the power.

49    Accordingly it was the Full Court’s holding, deploying the language of materiality that, where a decision-maker misunderstands the nature of the power, the error will be material (the materiality threshold applies but is always met).

50    Alternatively, the applicant contended that the Minister’s attempted invocation of a materiality requirement finds no support in the proper construction of s 501(2) for three reasons.

51    First, where the legislature intended that the power under s 501(2) be “spent” as a result of its prior exercise, there is nothing in the language, object and purpose of the Act which suggests that the legislature further intended that the power should “come back to life” simply because, on the facts of a particular case, there may have been an alternative basis to find that the applicant did not satisfy the character test.

52    Secondly, the applicant submitted that s 501(2) merely requires the Minister to form a particular subjective state of mind in relation to the satisfaction of the character test in order for the power to be enlivened, which on the applicant’s submission is not a heavy burden. Given this low burden, the applicant contended that there is no practical or principled reason to construe the Act such that it would effectively treat the Minister as having formed a state of satisfaction which he or she did not form.

53    Thirdly, a materiality requirement is commonly implied because the legislature could not have intended “that any error, no matter how minute or irrelevant” should give rise to the invalidity of a decision: Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 at [46]. The applicant submitted that an absence of power under s 501(2) of the Act cannot be described as a “minute” or “irrelevant” error.

54    It remains my view that s 501(2) incorporates a materiality threshold that must be met in this case. There is a degree of overlap between the applicant’s submissions as to whether the threshold applies and whether, if it does, the error was material. As a consequence, my reasons in answer to both questions are intertwined.

55    It is my view, as the Minister submitted, despite ss 501(2)(a) and (b) being couched in terms of satisfaction, that formulation does not preclude the necessity to consider materiality. The same has been accepted in Au at [46], [157] and Hossain at [34]–[37].

56    Au concerned an application for revocation of a mandatory visa cancellation pursuant to s 501CA. The Tribunal had erred by not considering whether there was “another reason” for revoking the cancellation (as is required under s 501CA(4)). Instead, the Tribunal had treated the matter as if it merely had a general discretion as to whether or not to revoke a cancellation, and in so doing it concluded that such a discretion should not be exercised. As with the circumstances here, the relevant provision in Au turned on the satisfaction of the decision-maker. Justice Derrington (with whom Perry J substantially agreed) concluded, at [43], that the Tribunal had misunderstood its statutory task. The Court rejected the submission that there was no materiality threshold applicable to s 501CA(4) of the Act at [46]–[47]. I accept the Minister’s contention that, because s 501CA(4) and s 501(2) operate in similar ways, the reasoning in Au should apply to s 501(2).

Was the error material?

57    However, for the following reasons, it is my view that the error was material.

58    The Minister submitted that the error was not material given:

(a)    Ordinarily, failure to take into account a mandatory consideration will not result in a jurisdictional error if that failure was immaterial. The Minister contended that, by parity of reasoning, there is no jurisdictional error if a decision-maker takes into account an impermissible consideration where that could have made no difference to the decision (as was the case here), citing Hossain at [30];

(b)    The reasoning in Makasa was not supportive of a finding of materiality because there was no displacement of the ordinary rule that a power can be re-exercised from time to time where occasion requires it, referred to in s 33(1) of the Acts Interpretation Act 1901 (Cth) (AI Act);

(c)    As a consequence of this holding in Makasa, the power under s 501(2) is able to be re-exercised where subsequent events or further information providing a different factual basis for the formation of a reasonable suspicion (that the visa holder did not pass the character test) emerged (at [49]); and

(d)    Here, following the decision not to cancel the applicant’s visa, the applicant was convicted of several offences and sentences to further terms of imprisonment. Whilst these were suspended, such sentences still amount to a sentence of imprisonment within the meaning of s 501: see, eg, Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691; 147 ALD 434 at [43]; Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [9]. Given the same, the Minister contended that at the time of the Decision, there were subsequent events or was further information not previously before the Minister. This provided a new and fresh factual basis upon which the applicant failed to pass the character test. Applying Makasa, it follows that at the time of the Decision, s 33(1) of the AI Act operated with the effect that the power in s 501(2) was available for re-exercise.

59    The Minister submits that Makasa makes clear that subsequent offending could found a permissible, valid formation of the state of satisfaction under s 501(2). The Minister submitted that such a state of satisfaction was “inevitable”, taking into account the subsequent offending, which resulted in 42 months of imprisonment (which were suspended). This is so because a person does not pass the character test if they have a substantial record as defined in s 501(7): s 501(6). Relevantly, a person will have a substantial criminal record if they have been sentenced to two or more terms of imprisonment where the total of those terms of imprisonment is 12 months or more: s 501(7)(d). By virtue of s 501(7A), if a person has been sentenced to two or more terms of imprisonment to be served concurrently, the whole of each term is to be counted when working out the total.

60    According to the Minister, while the Minister took into account a matter that Makasa said he was prohibited from taking into account (namely the 2008 conviction), the Minister was bound to conclude that the applicant did not pass the character test (by reason of the applicant’s subsequent criminal record). In fact any other state of mind on the part of the Minister as to the applicant passing the character test would have been unlawful, having regard to the terms of the Act.

61    I accept that the holding in Makasa is relevant to, but not determinative of, whether the materiality threshold is met. For the reasons outlined above, the parties accept that the Minister erred, applying the reasoning in Makasa (at [20]), when deciding that the applicant had failed the character test solely by reference to earlier convictions which had been relied upon in a previous exercise of power conferred by s 501(2).

62    However, Makasa is of limited assistance with respect to the remainder of the inquiry here. In Makasa there were no subsequent objective facts upon which the Minister could have, or may have, been compelled to have had regard to. Here, the issue is whether the existence of the power is predicated on the relevant state of mind being formed by the decision-maker. The applicant submits that that state of mind was never formed, with the effect that the power was not available for re-exercise on the basis of the 2008 conviction and was beyond power.

63    According to the Minister, this explains why, on the Minister’s submission, the power in s 501(2) was not available for re-exercise in Makasa, but was available here. Further, the Minister submitted that, consistent with the High Court’s comments at [57], the power in s 501(2) was available for re-exercise in the applicant’s case given subsequent events occurred and further information was before the Minister which provided a different factual basis upon which to form a reasonable suspicion that the applicant did not pass the character test.

64    I accept that here the applicant is not impugning the exercise of the discretion; rather, all that is being impugned is the Minister’s formation of the state of satisfaction. This is because the principle in Makasa applies to the first stage of the two-stage decision-making process that exists under s 501(2): Makasa at [56]–[57].

65    The main battleline between the parties is whether, despite the Minister having held a “reasonable suspicion” on an erroneous basis (the 2008 conviction which had already been the subject of a previous exercise of power under s 501(2)), if the Minister would be compelled hold that suspicion and make the decision under s 501(2) on the basis of other objective facts, then the error is not material.

66    I accept the applicant’s submission that the requirement that the Minister hold a “reasonable suspicion” refers to a subjective suspicion, as embraced by Tracey J (adopting the Minister’s submission in that case to the same effect) in Graham v Minister for Immigration and Border Protection [2016] FCA 682; 246 FCR 439 at [68]–[69] in which his Honour considered s 501(3) of the Act:

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

67    Accordingly, in Graham Tracey J accepted that the language of “reasonable suspicion” in s 501(3) refers to a subjective suspicion.

68    As a consequence, even if it could be said that the applicant objectively failed the character test on some other ground (here, by reason of failing the character test on other bases), because the Minister did not rely on that ground in forming his state of satisfaction, the objective availability of that other ground cannot retroactively correct the Minister’s error.

69    The Minister acknowledged that ss 501(2)(a) and (b) are cast in terms of the Minister’s satisfaction. However, the Minister submitted that they are objective. This is so because a person will fail the character test if they have a “substantial criminal record” (s 501(6)(a)), which relevantly includes where a person has been sentenced to two or more terms of imprisonment totalling 12 months or more (s 501(7)(d)). The Minister contended that it was “incontestable” that the applicant fit this criterion by virtue of events arising after 2009, and that this conclusion does not involve any element of subjective evaluation by the Minister. As a result, the applicant had a “substantial criminal record” as a result of events arising after the 2009 non-cancellation decision.

70    Despite this, it is my view that the Minister’s submission must be rejected because the Minister never formed the requisite state of mind such that the power was not available for re-exercise on the basis of the 2008 conviction and that he therefore acted beyond power. If the Minister’s interpretation were correct, and it was sufficient that there was an objective basis (not relied upon by the Minister) for finding that the applicant failed to pass the character test in forming the state of suspicion, it would be unnecessary to enliven the power to cancel for the Minister to form a reasonable suspicion that the applicant did not pass the character test for that reason. Such an approach is contrary to the reasoning in Makasa. On the Minister’s approach now, the power can be re-exercised on that basis provided there is, sitting in the background, some other objective basis for not passing the character test that the Minister did not rely on.

71    It is evident from the statutory scheme that the formation of that reasonable suspicion by the Minister, based on the relevant matter, is central to the operation of the scheme, and this is the reasonable suspicion that the Minister is effectively saying is not required. I do not accept the Minister’s submission that a decision-maker is within power, even if he or she did not have the requisite subjective state of mind.

72    The Minister accepted that s 501(2)(a) requires a subjective state of mind assessment, but submitted that mandatory considerations only arise in relation to subjective state of mind assessments anyway, and that failure to take a mandatory consideration into account will not be a jurisdictional error if the error was immaterial. The Minister submitted that the error was plainly immaterial because, if he had not taken the impermissible consideration into account, it could have made no difference to the outcome. The Minister could only ever lawfully have formed the state of satisfaction that he, in fact, did. The Minister submitted that this was so because the Minister would have nevertheless been compelled to reach the same conclusion if he had not considered the 2008 sentence by virtue of the applicant’s subsequent offending. I accept that ss 501(2), (6) and (7) mean that the state of satisfaction can be properly reached purely once the numerical threshold of a sentence, or cumulative sentences, of 12 months or more is passed. However, the question is whether the Minister must subjectively turn their mind to this fact, or whether it is automatically satisfied once the threshold is objectively passed. It is my view that the latter is the preferable view.

73    The Minister is not compelled to exercise the power at all, evident in the use of “may” in the chapeau of s 501(2). The consequence of this, as the applicant submitted, is that, even where there is a person who fails the character test objectively, there is no obligation on the Minister to have turned his or her mind to the relevant offences to form the state of reasonable suspicion. The applicant submitted, therefore, that it cannot be assumed that, on the counterfactual where the Minister had not considered the 2008 offences, he would have considered the subsequent offending and would have inevitably concluded that the character test was not satisfied. I accept this submission.

74    In Hossain, the Court was also concerned with the materiality of an error in relation to a subjective jurisdictional fact. However, that case involved two statutory criteria, non-satisfaction in relation to one of which was sufficient to ground the decision reached. As a result, the Tribunal’s error could not have impacted the outcome of the decision because the other criterion, the public interest criterion, provided an independent basis for the decision. Kiefel CJ, Gageler and Keane JJ said at [35] “the Tribunal was not satisfied that the public interest criterion was met and, on the findings which the Tribunal made, the Tribunal could not reasonably have been satisfied that the public interest criterion was met”. The same is not true of this case. Here, the Minister needed to reasonably suspect that the person does not pass the character test. His error in considering the 2008 conviction meant that, subjectively, he did not hold that suspicion. Unlike the Tribunal in Hossain, the Minister made no conclusion (apart from his conclusion with respect to the 2008 conviction) which could have provided an independent basis for his decision.

75    It is worthwhile noting that the Minister’s contention regarding compulsion was limited to the application of s 501(2). I accept the applicant’s submission that the compulsory power under s 501(3A), which requires the Minister to cancel a visa if satisfied that the person does not pass the character test because they have a substantial criminal record on the basis of s 501(7)(a), (b) or (c), did not apply to the 2009 or 2017 decisions. The Minister made no submissions to the contrary.

Conclusion

76    It follows from these reasons that the application for an extension of time must be allowed and writs of certiorari and mandamus be issued.

77    The applicant is entitled to his costs.

Associate:

Dated:    10 October 2023