Federal Court of Australia

Major v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 597

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 29 April 2024 be dismissed.

2.    The applicant pay the respondent’s costs as taxed or agreed, including any costs thrown away by reason of the filing of an amended originating application.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The applicant, Mr Brett Philip Major, by an originating application, challenges a decision made in person by the respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, to override a decision of the Administrative Appeal Tribunal and refuse Mr Major’s application for a Resident Return (Class BB) visa that would have permitted him to return to Australia. He alleges two separate jurisdictional errors in order to vitiate the Minister’s decision.

2    The Minister’s decision to refuse the visa application was ultimately based upon a continuing, albeit low level, risk to the Australian community arising from Mr Major’s serious child sex convictions for offences that were committed against his son over 20 years ago and prosecuted soon afterwards. Under the original decision of the delegate to the former Minister, the visa application had been refused. The Tribunal had then set aside the delegate’s decision and declined to exercise the discretion to refuse Mr Major’s visa application, applying a binding direction issued by the former Minister in 2021, known as Direction 90.

3    For the reasons that follow, neither alleged error by the Minister was established, depriving the judicial review application of the first step towards establishing jurisdictional error. Even if that hurdle could have been overcome, the nature of the errors alleged fell well short of being jurisdictional in nature. The application for judicial review was doomed at the outset.

Factual background and key events

4    Mr Major is a 65-year-old British citizen who resided in Australia continuously between 1967 and 2019, from when he was aged about 7 until he was almost 60. He had acquired permanent residence, but, apparently unbeknownst to him, that status did not give him any right of return if he left Australia. On 25 February 2019, he departed Australia with his wife (not the mother of his son against whom he offended) to travel to New Zealand, without first obtaining any visa for his return.

5    On 6 March 2019, Mr Major attempted to return to Australia, but was not permitted to board his return flight because he did not hold a valid visa. He subsequently returned to his country of origin, the United Kingdom, where he now lives and from where he brings this application.

6    On 14 March 2019, soon after not being permitted to return to Australia, Mr Major applied for the visa. On 19 June 2019, he received a notice of intention to consider refusal of his visa application under s 501(1) of the Migration Act 1958 (Cth), by reason of failing the aspect of the character test in s 501(6)(a) due to having a “substantial criminal record” as defined in s 501(7). A person holds a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

7    Mr Major’s substantial criminal record arose from sexual offences he committed against his six-year-old son in 2001, being one count of rape by having felatio performed upon him and two counts of indecent treatment. He was convicted of those offences in April 2003 and sentenced to concurrent terms of imprisonment of three years for the rape offence and two years for each of the indecent treatment offences.

8    In October 2003, Mr Major’s appeals against his convictions and sentences were dismissed by the Queensland Court of Appeal. He has at all times maintained that he is innocent of those offences. Before the Minister, Mr Major called into question the validity of his convictions. That stance was a material contribution to a finding by the Minister that there was a risk, albeit low, that he would reoffend, even after the passage of over 20 years.

9    On 7 November 2019, a delegate of the Minister refused to grant Mr Major the visa, upon the basis that he did not pass the character test by reason of his convictions. On 8 September 2021, the Administrative Appeals Tribunal set aside and substituted that decision, declining to exercise the discretion to refuse to grant the visa. On 21 May 2023, under s 501A(2)(a) of the Migration Act, the Minister personally exercised his discretion to set aside the Tribunal’s decision, and refused Mr Major’s visa application.

The Minister’s powers under s 501A

10    Section 501A of the Migration Act, by subsections (2) and (3), confers two separate powers on the Minister to override decisions made by a delegate, or by the Tribunal on merits review, each described in s 501A as an “original decision”. These were succinctly described in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 at [13]-[15].

11    The power exercised by the Minister is that under s 501A(2)(a), which provides that the Minister may set aside the original decision, here made by the Tribunal, and refuse to grant the visa sought 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.

12    The issues in this proceeding are confined to the third requirement that refusal be in the national interest. Mr Major does not challenge either the reasonable suspicion that he did not pass the character test, nor that he did not satisfy the Minister that he passed the character test. Nor does he challenge the legal basis for the application of the national interest test. Rather, his challenge is concerned with the process and reasoning in reaching an adverse conclusion on the national interest.

13    The power exercised by the Minister under s 501A(2) retained an express obligation to afford Mr Major procedural fairness, an obligation that does not apply to the substantially identical power in s 501A(3) when read with s 501A(4). The Minister was also constrained by a proscription on legal unreasonableness in the decision that he made. Mr Major challenges the Minister’s decision upon the basis of both a denial of procedural fairness and a decision vitiated by legal unreasonableness and/or illogicality.

The legal framework for visa refusal decisions by delegates and the Tribunal

14    At common law, the exercise of a discretionary power by delegation must be made by reference to circumstances prevailing at the time of the decision, such that the delegator cannot wholly fetter the delegate’s future exercise of the power; and correspondingly, the delegate cannot fetter their own exercise of that power: R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 at 496-497, quoted with approval by Gleeson CJ in NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277 at [17]; and forming part of the reasoning of Kirby J at [137], footnote 138; see also Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 at [28].

15    The common law restriction on fettering a delegate or the equivalent has long been departed from in migration decision-making by the power bestowed on the Minister by s 499 of the Migration Act. Section 499 provides that the Minister may give binding written directions to a person or body having functions or powers under that Act, provided that they are not inconsistent with either that Act or the Migration Regulations 1994 (Cth): see Bochenski at [20]-[31], which reproduces s 499 and explains its operation. Any such direction is required to be tabled in both Houses of Parliament within 15 sitting days after it is given: s 499(3).

16    There has been a numbered series of directions issued by the Minister of the day under s 499 in relation to a range of functions and powers. In relation to character-based visa refusals and visa cancellations under s 501, and in relation to the revocation of s 501(3A) mandatory visa cancellations made while a person is serving a prison sentence under s 501CA, the current direction and the most recent prior direction are named as follows:

(a)    Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, dated 8 March 2021, issued by the then Minister (Direction 90).

(b)    Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, dated 23 January 2023, issued by the present Minister (Direction 99), which revokes and replaces Direction 90.

17    The Tribunal was bound by, and applied, Direction 90 at the time of making its decision to set aside the delegate’s decision to refuse to grant Mr Major’s visa application. The Minister, in exercising his discretion to set aside the Tribunal’s decision, was not bound by Direction 99 but chose to be guided by it.

Ground 1 – denial of procedural fairness

18    This ground of review depends upon:

(a)    the Minister’s overt and undisputed reliance, as part of his reasons, on the National Plan to Reduce Violence against Women and their Children 2010-2022 (National Plan) of the Council of Australian Governments (COAG), which included the first Action Plan made under the National Plan, which Mr Major was provided with and invited to make submissions about; and

(b)    the disputed contention that the Minister also had before him, and therefore his decision was, or may have been, affected, directly or indirectly, by the National Plan to End Violence against Women and Children 2022–2032 of COAG (New Plan), which it is common ground Mr Major was not provided with and was not invited to make submissions about.

19    Mr Major’s case is that while the Minister’s department gave him notice in writing in July 2022 that the National Plan may be taken into account by the Minister when making the decision as to whether to refuse his visa application, when the New Plan came into effect some three months later in October 2022, he was not given notice that the Minister may also take its contents into account. I readily accept that Mr Major was not provided with a copy of the New Plan and was not asked to comment upon it. Nothing turns on this. That is because I am unable to accept that the New Plan was before the Minister.

20    Mr Major relies upon what he says are both direct and indirect references to the New Plan being before the Minister. Upon careful examination, reading the Minister’s reasons according to what is actually said and its context, this has not been established by Mr Major.

21    The only express reference to the New Plan is in the Minister’s reasons at [111] (bold emphasis added to the third sentence and to the footnote to that sentence):

In considering the implications of family violence for the national interest, I have had regard to ‘The National Plan to Reduce Violence against Women and their Children 2010-2022’ (the National Plan). The National Plan, which was endorsed by COAG, has a strong focus on prevention of family, domestic and sexual violence, holding perpetrators to account, and encouraging behavioural change. I note that on 17 October 2022, the Australian Government extended the Plan to encompass the years 2022- 2032.1 I also note the strong links between the Plan and other significant COAG reforms. In particular, in April 2009, COAG endorsed ‘Protecting Children is Everyone’s Business-National Framework for Protecting Australia’s Children 2009-2020’, a framework designed to reduce child abuse and neglect. I acknowledge the importance of the National Plan and other associated programs in addressing the serious harms to both individuals and the wider Australian community arising from acts of violence, including sexual violence, against women and children Attachment BC.

1 Department of Social Services (DSS), The National Plan to End Violence against Women and Children 2022-2032, Australian Government, Canberra, last updated 27 January 2023, https://www.dss.gov.au/ending­violence.

22    Attachment BC to the Minister’s reasons comprised the same materials as had been sent to Mr Major for comment on 6 July 2022 (except for the national criminal history check results report provided at that time) namely copies of:

(a)    a 5 March 2019 media release from the then Prime Minister, which included references to the National Plan;

(b)    an 8 March 2021 media release from the then Minister, which referred to a new Ministerial Direction under s 499 of the Migration Act;

(c)    the National Plan (including, as noted above, the first Action Plan); and

(d)    the Fourth Action Plan under the National Plan for the period 2020 to 2022.

23    Mr Major contends that the bolded sentence in [111] of the Minister’s reasons and the corresponding bolded footnote, especially with its URL reference to the New Plan, means that it should be inferred that the New Plan itself was before the Minister. I am unable to accept that is so. First and foremost, the Minister’s reasons are accompanied by a detailed list of annexures, some of which are also referred to in those reasons. Those annexed documents are also with those reasons. The New Plan is not in that list and is not among those annexed documents.

24    Secondly, I can see no reason why the Minister’s words should not be read literally. I am satisfied that the reference in [111] to the New Plan being an extension of the National Plan to cover the years 2022 to 2032 meant nothing more than that. It is not a reference to the New Plan itself being before the Minister. The wording in the Minister’s reasons is consistent with what was listed as being the documents that were before him, not with there being any additional documents that were before him that were not listed. The decision was made on 21 May 2023, which was after the period from 2010 to 2022 to which the National Plan expressly referred. The evident purpose of the reference to the bringing into existence of the New Plan was to emphasise that the substance of the National Plan remained current, so that it could still be taken into account in a decision made after its nominal expiry in 2022. There is no need to resort to any beneficial reading of the Minister’s reasons when the plain and express reasons are clear and coherent.

25    Mr Major also relies upon what he contends are indirect or implicit references to the New Plan in the Minister’s reasons at the following paragraphs (emphasis added to the passages relied upon):

(a)    at [21]:    “Importantly, the National Plan maintains ‘strong links’ to other Council of Australian Governments (COAG) reforms including programs with a heightened focus on the protection of children …”;

(b)    at [22]:    “I consider that the Australian Government's focus on the protection of children, supported by the National Plan and other frameworks specifically designed to reduce child abuse, clearly demonstrates that the Australian Government's policies concerning the protection of children have been formulated in the national interest.”;

(c)    at [111] in the following part of the paragraph reproduced above:    “I also note the strong links between the Plan and other significant COAG reforms …”;

(d)    at [136]:    “…I consider that the seriousness of Mr MAJOR'S family violence offending constitutes further evidence that the national interest is engaged in relation to his offending considering the Australian Government’s views on family violence as represented by the National Plan and other programs designed to reduce violence against children …”;

(e)    at [151]:     “… I have considered the Government’s views and the expectations of the Australian community generally in relation to the types of serious conduct engaged in by Mr MAJOR, namely sexual violence against a child.”

(f)    at [216]:    “I found that the seriousness of Mr MAJOR’s family violence offending constitutes a significant reason for determining that the national interest is engaged in relation to his offending. I made this finding in light of the Australian Government’s views on family violence as represented by the National Plan and other programs designed to reduce and prevent violence against children. I attributed significant weight to this primary consideration in favour of refusing Mr MAJOR’S visa.”

26    Mr Major argues that the references to “other” frameworks, reforms and programs in the Minister’s reasons at [21], [22], [111], [136] and [216] are a reference to things other than the National Plan, which is clear and may be accepted; and that this includes the New Plan, which I reject as being illogical and inconsistent with the obvious temporal relationship between the National Plan and the replacement New Plan. I can see no reason why the Minister’s reasons, in referring additionally to things other than the National Plan itself, would be suggesting simultaneous reference to the New Plan as well. Despite the applicant’s contentions to the contrary, [111] indicates that the Minister considers the New Plan to be a temporal extension of, not in substance and as relevant to Mr Major, a different policy to, the National Plan. I cannot see why, apart from the main issues addressed in the National Plan remaining current by a temporal extension, the Minister would be referring to the content of both the National Plan and the New Plan. This is not just a case of departing from the plain language used, but importing an understanding that simply does not make any sense.

27    Mr Major further argues that [151], to be read in the context of [150], by referring to “the Government's views and the expectations of the Australian community generally in relation to the types of serious conduct engaged in by Mr MAJOR, namely sexual violence against a child” must be referring to the government’s present views, which therefore had to encompass the New Plan. However, that entails reading [151] without the context of [150], and indeed without the context of [149] to [152], being the four paragraphs under the heading “Conclusion on national interest considerations”. It is plain that the reference to the government’s views is a reference to the National Plan, not to the New Plan.

28    I am therefore not satisfied that the Minister had before him the New Plan. To the contrary, on the evidence before me, the key aspects of which are summarised above, in the context of the decision that was made, and having regard to the substantial similarities between the National Plan and the New Plan, and the lack of significance of the differences between the two plans to Mr Major’s case, I am satisfied that it is highly unlikely that the New Plan was before the Minister.

29    I also reject Mr Major’s alternative contention, developed during the course of legal argument, that anything that may have been before the person who evidently drafted the reasons adopted by the Minister and prepared the materials that were put before him was constructively before the Minister as well. This goes beyond the accepted bounds of departmental knowledge that may be attributed to Ministers, described in the recent High Court decision in Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; 98 ALJR 594, especially at [17]-[22]. The Minister is responsible for any shortcoming in what is before him, but he is not attributed with knowledge of material which is not provided. An omission from the material placed before the Minister of something that was required to be considered may give rise to error, but that is not this case.

30    Given that I am not satisfied that the Minister had before him the New Plan, that also means that I am not satisfied that he relied upon anything contained in the New Plan, directly or indirectly, in making his decision. Accordingly, the factual substratum for the alleged denial of procedural fairness is absent.

31    Mr Major therefore fails at the first hurdle of demonstrating any error at all in the Minister’s decision-making processes or reasons of the kind identified and relied upon. That is because, contrary to his assertions, there was no identified absence of an opportunity to comment upon material that was before the Minister. The point of determining that an established error was jurisdictional was never reached.

32    For completeness, I add that even if the New Plan had been before the Minister, I am not satisfied that it could possibly have made any difference to the outcome. As already noted, the changes between the two plans were not material to Mr Major’s case, despite his submissions to the contrary. There would not have been any practical injustice even if the New Plan had been taken into account to support the findings that were made and the conclusions that were reached, when due regard is had to the entirety of the Minister’s reasons and the facts and circumstances referred to.

33    In particular, Mr Major made no submission in response to the National Plan that he was invited to comment upon, nor in relation to the Fourth Action Plan for which comment was also sought. This was hardly surprising given that Mr Major still maintains that he is innocent and therefore necessarily that he did not engage in any conduct of the kind that is contemplated by either plan. That stance is maintained having served a lengthy gaol term and his conviction appeal having failed, in substance characterising those outcomes as a miscarriage of justice. In those circumstances it is fanciful to suggest that there is any realistic possibility that he would have taken an entirely different course, inconsistent with his stance towards his convictions and prison sentences, and made a submission about the New Plan when he did not do so in relation the National Plan. The alleged denial of procedural fairness is simply not tenable even if the New Plan had been before the Minister, which I am satisfied it was not.

34    It follows from the above that the first ground of review must fail.

Ground 2: Legal unreasonableness and/or illogicality

35    The substance of ground 2, which in argument for Mr Major departed from the way it was pleaded to an extent, is that the Minister made contradictory findings rising to the level of being legally unreasonable or illogical so as to vitiate the decision.

36    In the final argument, Mr Major contrasts the Minister’s reasons at [137]-[139] with [194], which are as follows:

Expectations of the Australian community

[137]    While I am not legally bound by the Direction, I have, in considering the national interest in this case, and consistent with the Direction, considered the expectations of the Australian community. I consider the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

[138]    I also consider that refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted a visa. In particular I consider the Australian community expects that the Australian Government can and should refuse a visa if the applicant raises serious character concerns through certain kinds of conduct. Relevantly in the case of Mr MAJOR, those specified kinds of conduct include family violence and crimes against women/children/vulnerable members of the community. Noting that Mr MAJOR has engaged in conduct of that nature, I find that he raises serious character concerns and the community expectation described above applies in this case.

[139]    The Government's view is that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

…

[194]    I consider that Mr MAJOR has been ordinarily resident in Australia during and since his formative years in Australia. I consider that Mr MAJOR has been contributing positively to the community in that time, and that the Australian community may therefore afford a higher level of tolerance of criminal conduct in relation to him.

37    Mr Major submits that “ground 2 is that the Minister made a finding that is legally unreasonable and/or illogical, and that is that the Australian community had both no tolerance for his offending and some tolerance for his offending”: T4.33-.35. The proposition was developed to say that the error was that the Minister “made two contradictory findings in purporting to assess both the national interest and exercising the discretion” and that the Minister “found that the Australian community had both no tolerance and, at least, some tolerance for Mr Major’s offending”: T27.1-.5. He argues that the findings in the earlier paragraphs of an absence of tolerance for past offending stand in “sharp contrast” with those in [194] which allow for some tolerance of such past offending, and in substance submits that they cannot stand together: T33.15 and following.

38    Mr Major relies upon the observations made by Beach J in Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 at [107] as lending support to his argument, characterising his Honours reference in that paragraph to “tension” as tantamount to the finding of legal unreasonableness or illogicality that he now seeks. His Honour said:

Second, the Minister’s finding that the Australian community may afford a higher level of tolerance of the applicant’s criminal conduct based on certain circumstances particular to him, that is, how long he has lived in and contributed to the Australian community, is in tension with the Minister’s finding that the Australian community has “expectations” as to the outcome of the decision-making process (non-revocation) based on the seriousness of the applicant’s conduct alone that apply irrespective of the applicant’s specific circumstances. Clearly, the length of time that the applicant has lived in and contributed to the Australian community are specific circumstances peculiar to him. Indeed, the Minister’s willingness to consider certain specific circumstances particular to the applicant in assessing the Australian community’s tolerance of the applicant’s criminal conduct, that is, the length of time that the applicant has lived in and contributed to the Australian community, contrasts with the Minister’s apparent failure to consider those or any other specific circumstances particular to the applicant in assessing what weight to give the deemed expectations of the Australian community.

I return to Kelly below.

39    I am unable to accept that there is any inconsistency between the Minister’s reasons at [137]-[139] on the one hand, and at [194] on the other. That is especially so when regard is had to Direction 99, which is what the Minister is referring to or relying upon at those two points in his reasons. The former set of paragraphs ([137]-[139]) is overtly and expressly referring to a general community norm of intolerance in relation to past conduct by non-citizens giving rise to serious character concerns, as described by Direction 99 at [5.2] at (2), (3) and (4), and used as non-mandatory guidance by the Minister in relation to the circumstances of Mr Major’s convictions. By contrast, the latter [194] is referring to a basis for departure from that norm, provided for by [5.2(5)] of Direction 99, by Australia generally having a greater tolerance for past offending by non-citizens who have lived in Australia for most of their life or from a young age, being Mr Major’s situation. That is, it is not an inconsistency, but rather a variation or adjustment of a general norm that may take place by reason of the countervailing effect of a person’s specific circumstances.

40    There is inevitably a stress or tension between an abstract norm of complete intolerance to serious offending by non-citizens, and a departure from that norm by reference to the particular circumstances of an individual seeking to challenge ultimately, as relevant here, the refusal of a visa application by the Minister. But as Beach J made clear in Kelly, both must be addressed if this aspect of Direction 99 is to be complied with.

41    While the Minister was not bound by Direction 99, there was nothing wrong with him choosing to be guided by it. He was exercising a personal power rather than a delegated power, but there was nothing wrong in taking his own direction to delegates and the Tribunal into account.

42    It follows that ground 2 also fails at the first hurdle. There was no inconsistency at all in the approach that the Minister took, much less one rising to the level of vitiating legal unreasonableness or illogicality.

43    For completeness, the greater level of tolerance that might have been afforded to Mr Major was found by the Minister to be outweighed by:

(a)    the Minister’s findings at [219] of a risk, albeit low, of Mr Major reoffending;

(b)    the Minister’s related finding at [220] that the Australian community should not tolerate any risk of further harm of the kind that arose from Mr Major’s previous offending; and

(c)    the Minister’s further finding at [224] that, where significant harm could be inflicted on the Australian community, even strong countervailing considerations, including Mr Major’s long time in, and contribution to, Australian society, will generally be insufficient for the Minister not to refuse to grant the visa application.

44    This approach led to the Minister’s conclusion at [225] that the considerations favouring not setting aside the Tribunal decision were outweighed by the national interest considerations of doing so, leading to the decision at [226] to exercise the discretion to set aside the Tribunal’s decision and refuse the grant of the visa. In those circumstances, it is unlikely that, had I concluded that there had been any inconsistency of the kind Mr Major alleged, it would have been any more than an infelicity of expression, falling well short of a jurisdictional error.

45    It follows that ground 2 must also fail.

Conclusion

46    For the reasons detailed above, Mr Major fails at the first hurdle of demonstrating any error at all in the Minister’s decision-making processes or reasons of the two kinds identified and relied upon. That is because, contrary to his assertions, there was no identified absence of an opportunity to comment upon material that was before the Minister, and there was no identified contradictory finding made.

47    It follows that the factual substratum relied upon by Mr Major was absent for either the asserted denial of procedural fairness or the asserted legal unreasonableness or illogicality in the Minister’s reasons. The point of determining that an established error was jurisdictional was never reached, although had that been reached, it would have failed at that stage as well.

48    As both grounds of review have failed, the amended originating application must be dismissed with costs.

Associate:

Dated:    7 June 2024