Federal Court of Australia

AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J:

1    The applicant seeks orders setting aside a decision, made by the first respondent (the Minister) on 3 October 2023, to set aside a decision by the Administrative Appeals Tribunal (the Tribunal) and refuse to grant a visa to the applicant under s 501A(2) of the Migration Act 1958 (Cth) (the Act). He also seeks mandamus and injunctive relief.

2    The Tribunal was not named as a party in the Originating Application, but was named as the second respondent in the Amended Originating Application filed (with leave) on 14 January 2024. Leave to join the Tribunal as a respondent was not sought or granted. The Tribunal has not entered an appearance and there is no evidence that it has been served. The Tribunal was not a necessary respondent, as no relief was sought against it and it has no other interest in the matter. In these circumstances I have proceeded on the basis that the Tribunal is not a party to the proceeding.

Background

3    The applicant is a national of Sierra Leone who arrived in Australia, aged 16, in September 2009. He was the holder of a Class XB Subclass 202 Global Special Humanitarian visa. In July 2015 he was convicted of serious offences, committed against his then partner, which he had committed in 2012. He received a total effective sentence of 10 years imprisonment, with a non-parole period of 5 years.

4    As a result, his visa was cancelled by a delegate of the Minister under s 501(3A) of the Act (which requires the cancellation of a visa where its holder fails the “character test” as a result of conviction for an offence and is serving a term of full time imprisonment) on 27 June 2017. The Assistant Minister for Home Affairs made a decision on 3 July 2018 not to revoke that cancellation under s 501CA(4) of the Act. The applicant unsuccessfully sought judicial review of that decision.

5    The applicant applied for a Class XA Subclass 866 (Protection) visa on 24 July 2019. The application was refused by a delegate of the Minister on 18 September 2019. The applicant sought review of that decision by the Tribunal, which, on 13 November 2019, remitted the matter for reconsideration with a direction that he satisfied s 36(2)(a) of the Act (the 2019 Tribunal decision). Section 36(2) contains the main substantive criterion for the grant of a protection visa: in short, that the applicant is a person in relation to whom Australia has non-refoulement obligations. The Tribunal found that the applicant, if returned to Sierra Leone, would face serious harm as a member of a “particular social group” described as “persons suffering from mental illness in Sierra Leone”.

6    For reasons that are not apparent, a substantive decision on the applicant’s visa application took almost another three years. On 29 September 2022, a delegate of the Minister decided to refuse to grant the visa under s 501(1) of the Act on the basis that the delegate was not satisfied that the applicant passed the character test. That decision was also the subject of review by the Tribunal, which, on 19 December 2022, set aside the delegate’s decision and substituted a decision that the applicant should not be refused a protection visa on character grounds under s 501 (the 2022 Tribunal decision).

7    The power on which the Minister relied in making the decision now under review is found in s 501A(2) of the Act, which provides as follows.

Action by Minister—natural justice applies

(2)    The Minister may set aside the original decision and:

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

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

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

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

8    The character test is found in s 501(6). Relevantly, a person does not pass the character test if they have a “substantial criminal record” (s 501(6)(a)). A person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).

The Minister’s decision

9    It was not in doubt that the applicant did not pass the character test, by reason of his conviction in 2015. It may be noted that the same conviction had been relied on in the cancellation decision made in 2017 and the decision not to revoke that cancellation. However, it was not submitted that this circumstance engaged the principles stated in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 (Makasa). Those principles deny to the Minister the ability to rely on particular offending conduct where a decision has previously been made not to cancel a visa (or to revoke a cancellation) on the basis of that same conduct (see XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256 at [76] (Rares J), [89] (Yates J), [100] (Snaden J)). Here, the applicant’s visa was cancelled and the cancellation was not revoked. It would be incongruous if the Minister, having acted on an adverse view of the applicant’s character in the past, were not entitled to act on the same adverse view when dealing with a further visa application by him.

10    Only a few aspects of the Minister’s detailed Statement of Reasons need to be noted in order to address the applicant’s ground of review.

11    In considering whether refusal of the visa was in the national interest, the Minister had regard to the considerations identified in Direction No 99, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which was made under s 499 of the Act and came into effect on 3 March 2023, even though he was not strictly bound to comply with that direction. Accordingly, the Minister treated the prevention of domestic and family violence, the protection of the community and the expectations of the Australian community as aspects of the national interest (at [20] of the Statement of Reasons). Each of these factors was found to have “significant weight” or to “weigh heavily” in favour of refusing to grant the visa (at [120], [98] and [127] respectively).

12    The Minister also had regard to what he termed the “legal consequences of the decision”, including the existence of non-refoulement obligations. The Minister did not expressly adopt the reasoning in the 2019 Tribunal decision, but had regard to it and accepted that the applicant was a person in respect of whom Australia had non-refoulement obligations (at [132]). Evidently, those obligations arose in relation to his potential removal to Sierra Leone. The Minister noted the effect of s 197C(3) of the Act, which was that the removal of the applicant to Sierra Leone was neither required nor permitted (unless he requested it). It was therefore “highly unlikely that my present decision to refuse [the applicant]’s visa application would result in his removal to Sierra Leone, in breach of any international non-refoulement obligations” (at [135]).

13    Having concluded that the refusal of the visa was in the national interest (at [145]), the Minister turned to “other considerations”. Among these was the “legal consequences of a decision to refuse a visa application”. The Minister said (at [184]-[187]):

I am aware that the legal consequences of a decision to refuse [the applicant]’s visa application are that, as an unlawful non-citizen, he must be detained in accordance with s189 and s196 of the Act, until removed from Australia or granted a visa.

I am aware that, as a result of a refusal decision under s501A, there will be significant restrictions on [the applicant]’s ability to apply for another visa. In particular, I understand that [the applicant] will be prevented by s48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s48B, that s48A of the Act does not apply to him). An application for a visa other than a protection visa would be subject to s501E of the Act, which will apply to [the applicant] as a result of my refusal decision under s501A. This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation.

Further, by reason of the protection finding made in the course of considering his protection visa application, s198 will not require or authorise him to be removed to Sierra Leone, except in certain limited circumstances which are not presently relevant (s197C(3)). I acknowledge that the prospects of finding another country willing to receive him are poor.

As a result, I am aware that [the applicant] faces the prospect of immigration detention for an indefinite period. In particular, I am mindful that if I decide to refuse [the applicant]’s visa, he will, as an unlawful non-citizen, remain in held detention unless and until he can be removed to a country other than Sierra Leone (unless one of the exceptions in s197C(3)(c) were to apply), or unless the Minister were to intervene to grant [the applicant] a visa under s195A or to make a residence determination under s 197AB in his favour.

14    The applicant had made representations concerning the effect of indefinite detention on his mental health. At [196] the Minister accepted that indefinite detention was likely to have an “adverse impact” on him and that this weighed in favour of not refusing the visa application.

15    In reaching his conclusion on the exercise of the discretion in s 501A(2), the Minister referred again to Australia’s international non-refoulement obligations and to the unlikelihood of those obligations being breached by removal of the applicant to Sierra Leone (because those obligations meant he would not be so removed). He went on (at [200]):

Nevertheless, the fact that his removal to Sierra Leone is neither required nor authorised at present does mean [the applicant] might remain in immigration detention indefinitely. I found that this weighs against a decision to refuse.

16    Ultimately, however, the Minister found that the “national interest considerations” referred to above outweighed the considerations favouring not setting aside the 2022 Tribunal decision (at [210]).

the issue

17    The applicant’s sole ground of review alleges that the Minister fell into jurisdictional error in that:

(a)    indefinite detention was “of critical or material importance to the result before the Minister”;

(b)    the indefinite detention of a person in the applicant’s position was found to be constitutionally impermissible in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 (NZYQ); and

(c)    the Minister’s reliance on indefinite detention was therefore “legally unreasonable as it was rendered an error of fact or reasoning by NZYQ and it was of sufficient importance to vitiate the Minister’s decision”.

18    The Minister clearly proceeded on the understanding that, if not granted a protection visa, the applicant was likely to be detained “indefinitely”. More precisely, the Minister’s reasons indicate an understanding that:

(a)    section 196 of the Act required the applicant to be detained (unless he was the subject of a residence determination under s 197AB) until he was removed from Australia or granted a visa;

(b)    because of s 197C(3), the applicant could not be removed to Sierra Leone unless one of the circumstances in s 197C(3)(c) arose (ie, he asked to be removed to that country, or the “protection finding” in the 2019 Tribunal decision was quashed on judicial review or reversed under s 197D);

(c)    the prospects of being able to remove the applicant to any other country were poor;

(d)    the applicant was unable to apply for any other visa, by reason of ss 48A and 501E, unless a discretion was exercised in his favour; and

(e)    there was therefore at least a significant prospect that he would remain in detention for a long time, and potentially permanently.

19    It is not disputed that this was an orthodox understanding of the operation of the Act at the time the Minister’s decision was made. In particular, the proposition that detention was required to continue even if there was no realistic possibility of removing the applicant in the reasonably foreseeable future (and no avenue for him to obtain a visa) was supported by High Court authority: Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (Al-Kateb).

20    Al-Kateb was re-opened and overruled in NZYQ. The High Court pronounced its orders in that case on 8 November 2023 (just over a month after the Minister’s decision) and published its reasons on 28 November 2023. The construction of s 196 adopted by the majority in Al-Kateb was held to be correct, but subject to s 3A of the Act. Detention of a non-citizen by the executive in circumstances where no visa application was on foot, and there was no real prospect of removing the non-citizen in the reasonably foreseeable future, was held to be inconsistent with Ch III of the Constitution and s 196 was to be read down accordingly.

21    It is clear that, as a matter of principle, NZYQ did not change the law. Prospective overruling of authority is antithetical to basic concepts of the judicial power and thus heretical in Australia: Ha v New South Wales (1997) 189 CLR 465 at 503-504 (Brennan CJ, McHugh, Gummow and Kirby JJ). The constitutional principles elaborated in NZYQ must therefore be understood to have applied at the time of the Minister’s decision.

22    As a result, the Minister’s understanding of the consequences of his decision can be seen with hindsight to have been based on a misconception. The correct understanding was that, if removal of the applicant to Sierra Leone remained impossible, and there was no real prospect of removing him to another country in the reasonably foreseeable future, he would be entitled to be released into the community.

23    The issue that arises is whether, as a result of this misconception, the Minister’s decision is affected by jurisdictional error.

24    It was an agreed fact that the applicant has in fact been released from immigration detention following the decision in NZYQ. Evidence before the Court indicates that this was a result of an assessment by departmental officers that the reasoning in NZYQ made his detention at that time unlawful. The Minister did not accept that the fact of the applicant’s subsequent release, or the evidence concerning the basis for it, was relevant to the issue for determination in this proceeding. The Minister’s position in this respect is correct. It is obvious from the circumstances recorded in the Minister’s statement of reasons that analysis with foresight of the reasoning in NZYQ would have revealed a real likelihood of the applicant being released from detention. The fact that this event has now happened does not advance matters beyond that: it does not say anything as to the probability that would have been ascribed to it in advance.

consideration

25    The applicant, as noted above, framed his case as one of legal unreasonableness. He relied on BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 at [29], [39]-[44] (Mortimer CJ) (BQG21) for the proposition that “an error of fact or reasoning made en route to an administrative decision is judicially reviewable for legal unreasonableness”.

Legal unreasonableness

26    The passages cited in BQG21 (which, with respect, repay close study) explore the relationship between legal unreasonableness and irrationality and the concepts that underpin these grounds of review. For my own part, I consider that there is utility in maintaining a conceptual distinction between review of a decision maker’s state of satisfaction (sometimes referred to as a subjective jurisdictional fact), where a serious lapse of reasoning may produce a decision properly described as “irrational”, and review of a purported exercise of discretion, where a decision lacking an evident and intelligible justification is properly described as “unreasonable”. One looks to whether the state of mind required as a precondition for legally effective action has in truth been reached; the other looks to “intra-mural” questions of fact finding and assessment of competing factors once power is enlivened (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [38]-[39] (Gummow A-CJ and Kiefel J) (SZMDS)). This is not to suggest that the concepts are unrelated and do not inform each other. For example, in SZMDS at [130] (a passage quoted in BQG21 at [39]), Crennan and Bell JJ observed that illogicality as a species of jurisdictional error:

is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.

27    Both concepts thus involve an underlying notion that an administrative decision that could not have been reached by a reasonable person properly instructed as to the applicable law is beyond power.

28    BQG21 itself was an “appeal” on questions of law from a decision of the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), in which the decision of the Tribunal had turned on it not being “satisfied” of the applicant’s identity. The applicant framed the case as one of legal unreasonableness. The Chief Justice discerned significant irrationality in the Tribunal’s fact finding (at [45]-[46]). The “appeal” was thus allowed (at [47]). While her Honour did not spell out the link, it is apparent that this level of irrationality amounted to a failure by the Tribunal to apply the relevant criterion in reaching its state of (non) satisfaction, and thus an error of law capable of being corrected by a s 44 appeal (and not a mere error of fact).

29    The modern case law on legal unreasonableness in Australia begins with Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li). Li concerned a discretionary decision by the Tribunal not to delay its decision on a review so that the review applicant could obtain documentation that was essential to her case. The plurality in that case (Hayne, Kiefel and Bell JJ) observed that there are:

(a)    cases where unreasonableness is inferred even though a particular error in reasoning cannot be identified (at [68], referring to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353), such as where a decision “lacks an evident and intelligible justification” (at [76]); and

(b)    “more specific errors, going to jurisdiction, which the law recognises” and which “may also be seen as encompassed by legal unreasonableness” (at [71]-[72]).

30    The impugned decision in Li itself was of the first kind, being one where “the result itself bespeaks error” (at [85]).

31    The Full Court of this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44] (Allsop CJ, Robertson and Mortimer JJ) (Singh) understood the effect of Li as follows:

In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court's supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf [SZMDS] at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):

“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383-384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].

32    The reference to “outcome focused” review as one of the limbs of legal reasonableness was taken up later in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [6]-[12] (Allsop CJ), [61] (Griffiths J) and [91] (Wigney J) (Stretton) and in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [82] (Nettle and Gordon JJ) (SZVFW).

33    In Stretton, Allsop CJ sought to emphasise that the task of the court is “not definitional, but one of characterisation” (at [11]). His Honour continued:

the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

34    Allsop CJ then observed, at [12], that:

the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

(Emphasis added.)

35    The reference to “reasoning process” as a basis on which a decision might be characterised as legally unreasonable appears to take matters further than the observations of the plurality in Li. However, it is consistent with his Honour’s conception of those observations as illustrative and descriptive rather than definitional. It is also consistent with the emphasis by Gageler J in Li (quoted in the passage from Singh set out above) on “the existence of justification, transparency and intelligibility within the decision-making process”. It may therefore be that a glaring deficiency in reasoning on the part of a decision maker (where reasons are expressed) could lead to the decision being characterised as unreasonable, even if the outcome per se is “within a range of possible, acceptable outcomes” and the deficiency is not one of the “more specific errors, going to jurisdiction, which the law recognises”. The applicant’s broad proposition that “an error of fact or reasoning made en route to an administrative decision is judicially reviewable for legal unreasonableness” cannot therefore be rejected at a general level.

36    However, such error would need to be one which infected the decision—the purported exercise of power—with the quality of unreasonableness; that is, one which allowed the decision to be characterised as lacking rational foundation or an evident or intelligible justification, or plainly unjust, arbitrary, capricious or lacking common sense (Stretton at [11]; see also Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [30]-[35] (Allsop CJ, Besanko and O’Callaghan JJ)). This is a high threshold, in the application of which courts must always be alert to the limits of the judicial function (SZVFW at [11] (Kiefel CJ), [52] (Gageler J), [135] (Edelman J)). It stands in contrast to the “more specific errors, going to jurisdiction, which the law recognises”, mentioned in Li, any of which will vitiate a decision subject to meeting the low threshold of materiality. Nothing in the cases purports to add an “error of fact or reasoning” to this latter category.

37    The difficulty for the applicant’s case is that “legal unreasonableness” (in the broader sense identified in Li and elaborated in Singh and Stretton) “is to be judged at the time the power is exercised or should have been exercised”: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). That is to say, if a decision is to be characterised as capricious, unjust, arbitrary or one which no reasonable person could have made, that must follow from consideration of the decision against the material known to (or knowable by) the decision maker. The applicant does not submit that the Minister should have predicted the change in understanding of the law wrought by NZYQ, or that the Minister’s forecasting of the potential for him to be indefinitely detained was improper by reference to the law as expounded by the authorities at the time the decision was made.

“More specific error, going to jurisdiction”?

38    The difficulty identified above can only be overcome by identifying the flaw in the Minister’s reasoning, identified with hindsight after NZYQ, as a specific error of law with consequences for the validity of the Minister’s purported exercise of power. Counsel for the applicant expressly did not attempt to recast his case in this way.

39    Had that approach been attempted, it would have unfolded as follows.

(a)    The Minister was bound to consider the legal consequences of a decision to refuse the visa on character grounds (NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (Allsop CJ, Buchanan and Katzmann JJ). He did so. Prominent among those consequences was the prospect that the applicant would remain in immigration detention for some time.

(b)    The Minister therefore undertook a forecasting exercise in which he sought to identify the things that might happen in the future, under the Act, in respect of the applicant. This exercise was factual in nature and to some extent speculative, although it necessarily drew on understandings concerning the operation of provisions of the Act. The Minister needed to assess what in fact was likely to happen to the applicant, in order to weigh that in the exercise of his discretion.

(c)    One aspect of the Minister’s understanding about the operation of the Act, employed as part of the forecasting exercise, has been shown by later authority to be wrong. It was not the case that the applicant would necessarily have to remain in detention, absent the exercise of a discretion in his favour, unless and until some change occurred that allowed him to be removed from Australia.

(d)    This can be described as an error of law. However, it was not a misunderstanding of “the law applicable to the decision to be made” (Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 264 CLR 1 at [75] (Gageler J)), in the sense of the terms or limits of the power being exercised or the criteria for its exercise. The error occurred, as noted above, in the course of attempting to identify potential consequences of a decision to refuse the visa and assess their likelihood.

40    Whether an error of the kind identified in the previous paragraph is one that (subject to materiality) goes to jurisdiction is a complex question, best not embarked upon in the absence of detailed argument. Uninstructed by specific authority, I would have at least some sympathy for the view that an error of this kind is in substance factual, does not amount to a misconstruction of the statutory test or task and does not vitiate the ultimate exercise of power. However, decisions of this Court (including the Full Court) concerning non-revocation decisions under s 501CA(4) of the Act indicate that a misunderstanding concerning future decision-making about non-refoulement claims may be jurisdictional: eg BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [60]-[62] (Bromberg and Mortimer JJ); Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218; 256 FCR 50 at [41] (White J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [112], [127]-[138] (Kerr and Mortimer JJ). These cases may be distinguishable in that their reasoning was ultimately grounded in the Minister’s obligation to consider the “representations” put in support of request for revocation (including any representation that international non-refoulement obligations arose). Further, the extent to which their reasoning remains good law after Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [32]-[35] (Kiefel CJ, Keane, Gordon and Steward JJ) is not clear: their Honours observed at [35] that this particular path of reasoning had fallen away as a result of revised ministerial directions, and thus did not expressly disapprove the reasoning or exempt it from their broader disapproval of this line of cases.

Materiality

41    The Minister argued that, even if error was established, it was not material to the ultimate exercise of power (in the sense discussed in, eg, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 (MZAPC)) and was therefore not jurisdictional. The applicant accepted that materiality—ie, a realistic possibility that the decision would have been different had the error not occurred—was an aspect of what he must prove in order to succeed.

42    The applicant also accepted (as the Minister emphasised) that the prospect that he would be detained indefinitely was treated by the Minister as a factor weighing quite strongly against refusing the visa. Prima facie, therefore, appreciation that long term detention was by no means inevitable (indeed, unlikely in the light of the circumstances referred to at [186] of the Statement of Reasons) would have removed a consideration that operated in the applicant’s favour, and thus made the Minister even more likely to conclude that refusal of the visa was the right decision. However, the applicant submitted that the belief that he stood to be detained indefinitely implicitly underpinned the Minister’s treatment of other relevant factors.

(a)    As to the protection of the Australian community, it was submitted that the attribution of significant weight to this consideration (in support of a conclusion that refusing the visa was in the national interest) must necessarily be founded on an understanding that the risk posed to the community by the potential for further offending by the applicant would be significantly reduced by refusal of the visa. That indicates that the Minister must have proceeded on the basis that refusing the visa would keep the applicant out of the community. The Minister could not have had that expectation if he had understood that the continued detention of the applicant was likely to be or become unlawful and he would need to be released, whether or not he was granted a visa.

(b)    A similar argument can be made in respect of family violence, to the extent that the notion of community protection underpins the attention given to that factor.

(c)    The Minister also considered the “expectations of the Australian community”. Consistently with established authority, this did not involve a factual inquiry into community expectations. Rather, the community is deemed to expect non-citizens to obey Australian laws while in Australia, and to expect the Government not to allow a non-citizen who has breached this expectation to remain in the country (as noted in the Minister’s Statement of Reasons at [121]). However, decision makers have some leeway as to the weight to be given to that expectation in the circumstances of individual cases. The Minister gave it “significant weight” in the present case (at [127]). It was submitted that the Minister might have given it less weight if he had understood that refusing to grant the visa would not achieve the long term exclusion of the applicant from the community.

43    If the Minister’s decision had been found to be “legally unreasonable”, in the broader sense of that term discussed above, it would not be necessary to address these arguments. A conclusion of unreasonableness in this sense necessarily involves an element of materiality, and no additional threshold needs to be met (MZAPC at [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ)).

44    The issue of materiality would need to be grappled with if it were concluded that the decision in NZYQ exposed a specific error of law, committed in the course of forecasting what was likely to happen as a consequence of the decision, and that that error was capable of going to jurisdiction. As noted above, the case was not put in this way.

45    Resolution of the materiality question is therefore not strictly necessary. However, it may be useful to express my conclusions on the point.

46    Having established error, an applicant need only establish that compliance with relevant requirements “could realistically have resulted in a different decision” (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] (Bell, Gageler and Keane JJ)) or that the decision “could have been different … as a matter of reasonable conjecture” (MZAPC at [38]). This is an “undemanding” standard: Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 at [33] (Kiefel CJ, Keane and Gleeson JJ). If the issue required resolution, I would hold that the “undemanding” standard of materiality had been met here.

47    The issue needs to be approached by reference to what the Minister knew at the time the decision was made rather than what happened afterwards. There is nothing in the material to indicate that the Minister had before him any detailed information concerning the future prospects of removing the applicant, or gave close consideration to that matter. It cannot be assumed that, properly instructed as to the law, the Minister would have concluded that ongoing detention of the applicant was impossible and made his decision on that basis. However, the matters recorded in the reasons were sufficient to indicate that, on a proper understanding of the law, the power to keep the applicant in detention was very doubtful and likely to remain so.

48    The Minister was not under any duty to exercise the power in s 501A(2) if particular conditions were met, or even to consider exercising the power: s 501A(6). Further, the issue was not only whether the preferable decision was to grant or refuse to grant a visa. The Minister was considering whether to set aside a decision made, after a hearing and detailed consideration of the merits, by the Tribunal. Whether to override a decision by the Tribunal raises its own policy questions, and a Minister might well take the view that the Tribunal’s decision ought to be allowed to stand in the absence of strong reasons why it should not.

49    Against this background, it would be a mistake to assume that the Minister would necessarily have approached factors such as “the protection of the Australian community” by simply considering which of two available options (refuse the visa or allow it to be granted) was more likely to protect the community against the risk of further offending by the applicant. A possible view of the matter was that setting aside a decision of the Tribunal was not justified if taking that step would have only marginal or doubtful utility in protecting the community against that risk. Accordingly, as a matter of “reasonable conjecture”, the Minister’s view of the preferable decision could have been different if he had approached the matter on the basis of an understanding that the lawfulness of the ongoing detention of the applicant was at best doubtful.

50    This conclusion is not gainsaid by the obviously correct point that the Minister in fact treated the prospect of indefinite detention, if the visa was refused, as a factor weighing against refusal. The weight to be given to competing considerations was a matter for the Minister, and the Court should be slow to speculate that the Minister would have reasoned in any particular way in the counterfactual situation. The only safe conclusion is that the competing considerations would have presented themselves differently.

51    For these reasons, if an error capable of going to jurisdiction had been established, I would have concluded that the error was material in the relevant sense.

disposition

52    The application must be dismissed with costs.

Associate:

Dated:    26 February 2024