Federal Court of Australia

Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1419

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed with costs.

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

REASONS FOR JUDGMENT

BUTTON J:

1    The Applicant has applied for orders quashing the decision of the then Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) to cancel his visa and to set aside the decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had revoked an earlier cancellation of the Applicant’s visa.

2    Two principal issues arise on the application.

3    The first issue is whether public statements made by the Minister were such as to make his decision one affected by apprehended bias. Those public statements were made in a period of time proximate to the Minister’s decision to cancel the Applicant’s visa.

4    There is a related issue concerning the Minister’s decision not to exercise his discretion to afford the Applicant natural justice. The Applicant contends this decision was also affected by apprehended bias. Pursuant to s 501BA(3) of the Migration Act 1958 (Cth) (the Act), the Minister is not obliged to afford a person natural justice when exercising power under s 501BA(2) to set aside a decision revoking the cancellation of that person’s visa. However, it was common ground that the Minister is not precluded from doing so: Ibrahim v Minister for Home Affairs (2019) 270 FCR 12; [2019] FCAFC 89 at [61]–[62] (White, Perry and Charlesworth JJ).

5    The second issue is whether the Minister’s decision was affected by jurisdictional error on the basis that the Minister exercised his discretion not to afford the Applicant natural justice based on a false assumption and, accordingly, his discretion was exercised unreasonably. The alleged false assumption was that the Minister had before him the information given by, and submissions made by, the Applicant to the Tribunal when in fact he was not briefed with the transcript of the three-day hearing before the Tribunal.

6    The Applicant filed written submissions dated 6 November 2024 and written reply submissions dated 27 November 2024. The Applicant relied on the affidavit of Malvina Hagedorn, solicitor at Russell Kennedy Lawyers, affirmed 6 November 2024.

7    The Minister filed written submissions dated 19 November 2024. The Minister relied on two affidavits of Adam Cunynghame, Special Counsel at Sparke Helmore Lawyers, affirmed 19 November 2024 and 2 December 2024.

8    At the hearing, the Applicant relied on an amended originating application dated 6 November 2024. The Applicant filed a further amended originating application on 5 December 2024, with leave, following the hearing, to seek relief in the nature of prohibition in addition to certiorari. The Minister had contended that the proceeding was otherwise incompetent on the basis that this Court’s jurisdiction is limited to the matters referred to in s 75(v) of the Constitution, which vests jurisdiction where a writ of mandamus or prohibition or an injunction (but not certiorari) is sought against an officer of the Commonwealth. While the Applicant did not accept that the proceeding was incompetent as framed, he agreed to amend the originating application as suggested by the Minister, so as to avert any issue concerning the Court’s jurisdiction to hear and determine his claims. Accordingly, it is not necessary to address whether, had the originating application not been further amended, this Court would lack jurisdiction.

Statutory context

9    Section 501BA of the Act applies if, relevantly, the Tribunal makes a decision under s 501CA (the original decision) to revoke a decision made pursuant to s 501(3A) to cancel a visa that has been granted to a person. Pursuant to s 501BA(2), the Minister may set aside the original decision and cancel a visa that has been granted to the person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of particular provisions; and (b) the Minister is satisfied that the cancellation is in the national interest.

10    Section 501BA(3) provides that “[t]he rules of natural justice do not apply” to a decision under s 501BA(2), although as outlined above it was common ground that the Minister is not precluded from affording natural justice.

The character test

11    The Applicant was born in Somalia and is a New Zealand citizen.

12    On 12 November 2019, the Applicant was convicted and sentenced to four years’ imprisonment for aggravated armed robbery. The details of that offending were recorded in the judge’s sentencing remarks. In the course of the armed robbery (which took place in the victim’s car and was committed by the Applicant and a co-offender), the Applicant held a knife to the victim’s neck and ribs, while the co-offender threatened that the Applicant would stab or kill her if she did not comply with their demands. She was robbed of $4,450 and a mobile phone. After the victim handed over the money and was relieved of her phone, the co-offender left the victim’s car, but the Applicant remained and continued to demand more money, threatening her with the knife to her ribs and his hand around her throat. After he and the victim had left the car, the Applicant threatened her, saying he knew where she lived and to “watch what you do”.

13    It was not in dispute that the Applicant did not pass the character test.

The first issue: apprehended bias

14    The statements of the Minister founding the apprehended bias allegation were made:

(a)    on 29 May 2024, in the course of an interview with the Australian Broadcasting Corporation (the ABC);

(b)    on 30 May 2024, in the course of an interview with Sky News; and

(c)    on 3 June 2024, in a press release issued by the Minister’s office.

15    In particularising the apprehended bias ground, the Applicant alleged that, during the ABC interview, the Minister stated that:

(a)    the Tribunal’s decisions involving serious offending lacked common sense;

(b)    the Tribunal was not independent, and it had not been making decisions that met community expectations or were consistent with the intent of Direction 99 (concerning visa cancellation and the revocation of a mandatory visa cancellation); and

(c)    he had already set aside six Tribunal decisions for that reason.

16    The Applicant further particularised the apprehended bias ground, alleging that, during the Sky News interview, the Minister stated that:

(a)    Tribunal decisions involving serious offending did not meet his expectations and that it was in the national interest that those decisions be overturned so the community can be kept safe;

(b)    the exercise of his discretion would be in accordance with his view about the national interest (ie, that non-citizens who commit serious offences will have their visas cancelled) and the “absolute imperative of community safety”; and

(c)    eight visas had been cancelled and there were “many more underway”.

17    The Applicant also referred, in the particulars to the apprehended bias claim, to the statement in the press release that the Minister had set aside 30 Tribunal decisions that had revoked the cancellation of visas involving serious offending and that it was “clear that the Administrative Appeals Tribunal’s decision to reinstate these visas did not meet community expectations, and Ministerial Direction 99 has not been working as the Government intended”.

18    In his further amended originating application, the particulars to the apprehended bias ground contended that the statements identified “possibly conveyed imputations that” (emphasis added):

a.    Tribunal decisions to revoke the cancellation of visas where a non-citizen had committed serious offences were:

i.    unreasonable;

ii.    involved an incorrect interpretation of Direction 99; and

iii.    would be set aside in the national interest;

b.    When exercising power under s 501BA(2) of the Act, the Minister would fetter his discretion by considering that the protection of the Australian community would always outweigh other considerations irrespective of the particular circumstances of the case; and

c.    Accordingly, any Tribunal decision revoking a visa where the non-citizen had committed a serious offence would be set aside and applicants would not be afforded natural justice.

19    In his written submissions, the Applicant moved away from contending for “imputations”, and instead contended that the statements in question “convey the possibility that …”. While the Applicant’s written submissions omitted the contention that a Tribunal decision to revoke the cancellation of a visa where a non-citizen had committed serious offences “would be set aside in the national interest”, he put his case on the basis that the statements would convey the possibility that the Minister “considered that the national interest meant that the protection of the Australian community would always outweigh other considerations” and therefore “would inevitably” decide not to afford an applicant natural justice, and would inevitably decide to set aside the relevant Tribunal decision and cancel the Applicant’s visa.

20    The Applicant stated in oral submissions that the reference to “possibly” replaces the first “might” in the test for apprehended bias, and so did not introduce a third “might” to that test (further detailed below). Both parties proceeded on the basis that regard must be had to the actual terms of the Minister’s public statements and that they must be approached as a group (cf individual sentences being taken out of context of the whole, or the statements in one interview (or the press release) being considered in isolation from the other public statements).

21    As may be observed, the Applicant’s case was advanced on the basis that the statements, approached cumulatively, may lead a fair-minded lay observer to conclude that the Minister would “inevitably” decide not to afford an applicant natural justice and decide to set aside the Tribunal’s decision and cancel the person’s visa. The Applicant contended that the statements demonstrated an “implacable position that the Tribunal decision would be set aside and the applicant’s visa cancelled”.

22    The Minister accepted that s 501BA(3) of the Act excludes the natural justice hearing rule, but does not exclude the natural justice bias rule (referring, by analogy, to Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [43] (Gleeson CJ and Hayne J), [131] (McHugh J) and [180] (Kirby J)).

23    It was common ground that the Ebner “double might” test applies to determine whether a decision is affected by apprehended bias (referring to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63). In the migration context, the test has been explained as follows by Kiefel CJ and Gageler J (as his Honour then was) in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15 (QYFM) (citations omitted):

[37]     … The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.

[38]     Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

24    The Applicant also accepted that a Minister does not need to have an empty mind when making a decision and may make statements as to how he or she proposes to administer legislation in certain classes of cases (provided the statement does not disclose an error of law): Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [71]–[72] (Gleeson CJ and Gummow J).

25    In Jia Legeng, Gleeson CJ and Gummow J stated (at [71]–[72]) that the question is whether a decision-maker’s mind is “open to persuasion” and explained that “[t]he state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.

26    In Jia Legeng, the Minister had made observations in a radio interview that were critical of the Tribunal. The Minister also mentioned Mr Jia’s individual case in his interview. The majority in Jia Legeng recognised that Ministers have functions in the arena of public debate, political controversy and democratic accountability, such that their conduct may need to be evaluated in light of his or her political role, responsibility and accountability: Jia Legeng at [61], [63] (Gleeson CJ and Gummow J), [187]–[192] (Hayne J) and [244]–[245] (Callinan J). Ministers are engaged in the political sphere and do not have to conduct themselves with the same impartiality required of a judge: Jia Legeng at [104]–[105] (Gleeson CJ and Gummow J), [245] (Callinan J); see also Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 171; [2017] FCA 654 (Zaburoni) at [82] (Farrell J) (upheld on appeal).

27    Where a Minister expresses a policy position that is relevant to the exercise of a power, that does not constitute a basis for apprehended bias, provided the view or position expressed does not itself involve an erroneous view of the Minister’s task and the matters relevant to it. In Jia Legeng, Hayne J explained that (emphasis added):

190    There is no prejudgment in such a case because of the nature of the statutory task. It is to reach a degree of persuasion (satisfaction) that a value-laden standard (is not of good character) is met. The determination of that standard is not a task which the Act requires the Minister to undertake wholly anew each time it is suggested that there may be a case for the exercise of the discretionary power, conferred by the Act, to cancel or refuse a visa. It was open to the Minister to determine the standard to be applied in a way that left little or no room for debate about its application in an individual's case.

191     Determining the standard in that way would not fetter the exercise of a discretion. The relevant discretion which falls for exercise is the discretion to refuse to grant or, in these cases, to cancel a visa if s 501(2) applied to the person. All that the Minister does, in the circumstances posited, is announce the particular construction that the necessarily imprecise statutory standard will be given in certain kinds of case.

192     Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly.

28    As set out in QYFM at [46]–[49] (Kiefel CJ and Gageler J), [72] (Gordon J) and [249]–[256] (Gleeson J) (see also Zaburoni at [65]–[66] (Farrell J)), the fair-minded lay observer is aware of the nature of the decision to be made and the circumstances leading to the decision, and is neither complacent nor unduly sensitive or suspicious, but is aware that information and attitudes can still have a subconscious effect, even if the decision-maker conscientiously seeks to disregard them. The lay observer is also not so dispassionate as to be insensitive to the impression circumstances will have given. The fair-minded lay observer is not taken to have detailed knowledge of the law, or of the character or ability of a particular decision-maker, but will understand the capacity of the decision-maker to disregard irrelevant, prejudicial or immaterial matters: QYFM at [48]–[49] (Kiefel CJ and Gageler J).

29    At the outset of the ABC interview, the Minister expressed a view that the original intent of Direction 99 was not being followed and that the Tribunal was not applying a common sense approach, explaining that a new Direction was being prepared. While the first statements were made in more general terms, the Minister’s answer to the very next question made it clear that it was only some of the Tribunal’s decisions that had the characteristics to which the Minister had referred.

30    The Minister’s statements in the ABC interview also connected the development of a new, revised Direction to the fact that the then-current Direction 99 had not produced the decisions that were expected. The Minister’s statements did not convey that all of the Tribunal’s decisions in cases involving serious offenders lacked common sense, were inconsistent with community expectations or were inconsistent with Direction 99.

31    In a subsequent question and answer sequence, the ABC interviewer asked whether the Minister could say that the revised Direction would leave “zero possibility” of a Tribunal member granting or restoring a visa that the Minister had cancelled. The Minister responded by explaining aspects of the new Direction and surrounding processes. The interviewer then challenged the Minister, saying that it did not appear that he was closing “all potential loopholes”. The Minister responded:

Well, I am focused in the first instance [on] ensuring that a person who does not meet the requirements of the character test and is in Australia has their visa cancelled. That’s something that I've been focused on doing as Minister, in terms of the decisions of the tribunal.

32    The Applicant also pointed to what the Minister said about the independence of the Tribunal. In the ABC interview, the Minister said:

And, Greg, as you’d be well aware, yesterday we abolished the AAT and are putting in place a new, truly independent administrative review tribunal. That is an independent body. We have to give it the clearest possible guidance to ensure that its members[’] decisions meet the expectations of the Australian community.

33    In the Sky News interview, the Minister said that the Prime Minister had gone through a range of cases in question time where the Tribunal had made decisions that did not meet the expectations of the Australian community and did not meet the standard of common sense. From its terms, it is clear the Minister was referring to some, not all, Tribunal decisions.

34    The Minister then said that he was looking, as a priority, at cases where cancellations had been revoked. He said that eight visas had been cancelled and “I will deal with the others as a matter of the utmost urgency”. The Sky News interviewer subsequently referred back to that answer and said to the Minister: “Eight now so far. And there’s 30 in the mix right now. That you’re looking at around 30 [as] absolute priorities and those people will be booted.” The Minister responded saying:

Well, I will consider the cancellation as you’d imagine. I’ve got to apply the test, but I’m considering these cancellations as a matter of the utmost urgency. Submissions are coming up and I will consider them as soon as they come up and I will deal with them in accordance with my view about the national interest and the absolute imperative of community safety.

35    The Minister also made numerous references in the two interviews to receiving “submissions” regarding visa cancellations, and “considering” them. Accordingly, the fair-minded lay observer would, with knowledge of the “nature of the decision” (QYFM at [72] (Gordon J)), be aware that the nature of the decision to be made by the Minister was an evaluative one taking into account the Minister’s assessment of the national interest, that the Minister would be receiving and considering submissions on potential cancellations, and that the Minister would need to make a decision himself on each cancellation submission coming before him.

36    In the press release, the Minister stated that he had cancelled the visas of 30 non-citizens over the last week. He also said: “It is clear that the Administrative Appeals Tribunal’s decision to reinstate these visas did not meet community expectations, and Ministerial Direction 99 has not been working as the Government intended.” The Minister again stated that a new Direction was to be put in place.

37    While each case turns on its facts, it should be noted that the statements made by the Minister, which were critical of the Tribunal, are of a similar character to the statements made by the Minister in Jia Legeng, which statements were found by the majority not to give rise to an apprehension of bias. The aspects of the Minister’s statements regarding the Tribunal, which were raised by the Applicant, fall within the bounds of the Minister’s political role, and explain why he was promulgating a new Direction and conveyed a view he had about at least some Tribunal decisions not according with community expectations. They do not support the Applicant’s contention that a fair-minded lay observer might consider that the Minister might have a closed mind such that he would cancel the visa of every person coming before him for decision where the Tribunal had set aside a revocation decision.

38    Likewise, the Minister’s statements setting out his views on community expectations and community safety fall within the ambit of his political role. It was not suggested that the Minister’s views on the importance of community safety involved any error of law. Accordingly, consistent with the passages of Jia Legeng quoted above (at paragraph 27), it was open to the Minister to express such views and that he would be applying those views in considering cancellation decisions. Even if it be assumed that the Minister’s view of the importance of community safety would logically increase the likelihood that a person convicted of a serious crime would have his or her visa cancelled by the Minister (if he were to consider cancellation submissions after a revocation decision by the Tribunal), that merely reflects a standard set by the Minister, and one which was not said itself to involve error. Consistently with Hayne J’s observations in Jia Legeng (at [189]–[192]), the Minister was not required to set such a standard afresh in considering each matter before him, and the setting of such a standard, to be applied in decision-making, does not give rise to apprehended bias.

39    In each of the statements at issue, the Minister referred to how many visas he had cancelled (six at the time of the ABC interview, eight at the time of the Sky News interview and 30 at the time of his press release). In giving these figures, the Minister did not state how many non-citizens’ visas he had considered. His statements did not convey that the Minister may have a closed mind and would cancel each and every non-citizen’s visa which came before him where the Tribunal had overturned a revocation decision.

40    Taken in context, the Minister’s statement in the Sky News interview (after noting he had cancelled eight visas) that “[t]here are many more underway” would not be taken by the fair-minded lay observer out of context, so as to suggest that the Minister would cancel each and every visa coming before him in the cohort to which he referred. The Minister made it clear in the course of the interview that he had to, and would be, applying the statutory test to the visas he was considering as a priority. The Minister clearly did not accede to the interviewer’s suggestion that all of the 30 visas the Minister was going to consider would necessarily be cancelled and their holders “booted”.

41    The Applicant argued that, although the Minister’s response to the suggestion that “those people will be booted” might suggest to the lay observer that the Minister might be open to persuasion, that does not dispose of the “double might” test because the “lay observer is not necessarily disabused of any apprehension because particular words are used as if they are an incantation”. I do not accept the Applicant’s argument that the Minister’s reference to applying the test and considering the submissions put before him was “used as if [it was] an incantation”.

42    Nor is there any merit in the Applicant’s contention fixing on the Minister’s statement that he would “deal with” submissions in accordance with his view about the national interest and the “absolute imperative of community safety”. I do not accept that the fair-minded lay observer would understand the Minister’s use of the words “deal with” as connoting that the Minister may take a pre-determined approach and make a pre-determined decision in order to address a “problem” (as opposed to addressing and determining each case before him).

43    The Applicant contended that the Minister’s reference to the new Administrative Review Tribunal being “truly independent” conveyed that the Tribunal was not similarly “truly independent”. Even accepting that premise, the point goes nowhere because there is no intelligible link drawn between any belief on the Minister’s part that the Tribunal was not independent and how that would bear on his approach to considering whether to cancel the Applicant’s visa. One might ask, “independent from whom”? If the answer is the Government of the day, then it is not at all apparent that a perception of lack of independence of that kind might result in an inevitable decision to cancel the Applicant’s visa. If the answer is the previous Government, then it is still quite unclear how that lack of independence would contribute in any way to the fair-minded lay observer forming the impressions for which the Applicant contends. In any event, the answer to the question — “independent from whom”? — is not answered by the Applicant’s submissions, and so cannot sensibly be interrogated as a matter contributing to an apprehension of bias.

44    The Minister’s statements as a whole conveyed that he had a view concerning the significance of community safety in the assessment of the national interest, would be applying that view in considering the cancellation decisions coming before him, and held a view that some Tribunal decisions did not accord with community expectations or how the Government had expected Direction 99 to be applied. The one statement that gives serious pause is the statement in the ABC interview referred to at paragraph 31 above. Taken in isolation, that statement may convey a fixed view that any non-citizen in Australia failing the character test would have his or her visa cancelled. However, the fair-minded lay observer would take that remark in the context of all the other statements of the Minister in the ABC interview and the Sky News interview. Taken as a whole, the Minister’s statements made it clear he was aware of the test to be applied, and that he would have to consider each submission coming before him.

45    The Minister’s statements were made within the realm of the Minister’s political role and indicated views about the importance of community safety that he would be applying in approaching consideration of cancellation decisions of the cohort in question. As set out above, Ministers are not required to reassess and reformulate standards every time a decision comes before him or her. The Minister’s statements are not statements that might cause the fair-minded lay observer to think that the Minister’s mind may be closed so that he would inevitably set aside the Tribunal’s decision and would decide to cancel the Applicant’s visa, or would inevitably decide not to afford the Applicant natural justice. The Minister’s statements did not indicate that he had prejudged any particular case that was before him, or would be coming before him. His statements would not have indicated to a fair-minded lay observer that his mind may be “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Jia Legeng at [72] (Gleeson CJ and Gummow J).

46    I do not accept the Applicant’s submission that an assessment of the Minister’s statements that finds they fall short of the standard for apprehended bias on the part of a Minister substitutes a “judicial or lawyerly analysis” for the critical enquiry regarding what impression the statements would have made on the fair-minded lay observer.

47    The Minister’s statements were not such that the fair-minded lay observer might apprehend that the concerns and views expressed by the Minister gave rise to the possibility that the Minister would inevitably cancel the Applicant’s visa by reason of the views expressed (cf by assessing the potential cancellation on its merits, having regard to his assessment of the national interest, which is a broad concept involving a political question: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [156]–[157] (Griffiths, White and Bromwich JJ)).

48    Finally, contrary to the Applicant’s submission, I do not consider the fact that the Minister was briefed with a draft statement of reasons in support of setting aside the Tribunal’s decision is of any great significance in this case. The terms in which the draft statement of reasons and the overarching briefing note to the Minister were cast made it clear that the question whether to cancel the visa was one for the Minister to assess, and that the options he had included not cancelling the visa (in which case the draft reasons would be irrelevant). The briefing note made it clear that the Minister may choose to obtain further submissions from the Applicant, in which case the draft statement of reasons would also fall away. The briefing note also invited the Minister only to sign the draft reasons if he agreed with them, with any amendments he considered necessary. In his reply submissions, the Applicant stated that the provision of draft reasons was a “relevant consideration”, by way of context. I do not accept that the provision of draft reasons in the terms and circumstances just referred to would contribute to the fair-minded lay observer potentially forming the view that the Minister’s mind may be closed. As such, the provision of a draft statement of reasons does not assist the Applicant’s case.

49    It follows from the foregoing that I reject the contention that the Minister’s decision to cancel the Applicant’s visa was attended by apprehended bias. Nor do I consider that the Minister fettered his discretion in relation to the decision whether or not to set aside the Tribunal’s decision.

50    I also reject the contention that the Minister’s statements fettered his decision not to afford the Applicant natural justice. As I have reached that conclusion, it is not necessary to address the arguments made by the Minister concerning whether or not the choice whether to afford natural justice (when there is no obligation to do so) is amenable to review on grounds of apprehended bias.

The second issue: the record before the Minister

51    There is no merit in the Applicant’s contention that the Minister’s decision not to afford the Applicant natural justice was affected by jurisdictional error because it was made on the basis of a false assumption, rendering the exercise of discretion unreasonable.

52    The false assumption for which the Applicant contends is that the Minister assumed he had before him submissions made by the Applicant to the Tribunal when in fact he did not have a copy of the transcript of the hearing before the Tribunal. It is apparent from the Tribunal’s reasons that a transcript had been prepared.

53    It was common ground that the Minister decided not to afford the Applicant natural justice. In his statement of reasons, the Minister said:

7.     Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). While this means that I am not required to apply the rules of natural justice when making a decision under s501BA(2) by giving the affected person an opportunity to be heard before making the decision, I am aware that s501BA(3) does not prohibit me from affording such an opportunity.

8.     In this case, I chose to proceed without giving Mr JAMA an opportunity to be heard before making my decision. I am cognisant that as a consequence, Mr JAMA has not had the opportunity to advance reasons why an adverse decision should not now be made.

9.    I have, however, given consideration to information given by Mr JAMA in relation to the original request for revocation and as reflected in the decision record of the AAT in revoking the decision to cancel Mr JAMA’s visa.

54    The Minister’s statement at paragraph 9 identified the material to which he did give consideration: “information given by Mr JAMA” that was “reflected in the decision record” of the Tribunal. The Minister’s decision records that he had spent 2 hours and 45 minutes on the matter. The record also shows that the Minister had before him, not only the Tribunal’s decision (which itself made clear that a hearing had been conducted), but also a raft of material that was before the Tribunal, including, amongst other documents: the Applicant’s Statement of Facts, Issues and Contentions, the Applicant’s reply submissions and written statements from all witnesses who gave oral evidence, including an expert report from the forensic psychologist. There is no suggestion that the Minister’s statement regarding the material to which he did give consideration was untrue. This case is quite unlike LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 (LJTZ). In that case, the Minister’s statement that regard had been had to representations made in the proceedings before the Tribunal was false, rendering the exercise of the power one that was illogical: LJTZ at [12]–[14], [36], [50] (Charlesworth J).

55    The Minister’s statement at paragraph 9 of his reasons did not suggest the material before him comprised everything before the Tribunal, including oral submissions and evidence given orally. It did not suggest that the Minister thought he had been given the transcript, when he had not. Nor am I prepared to infer any such misconception on the part of the Minister. Not only do the Minister’s reasons not support such an inference, but it would have been apparent to the Minister from the Tribunal’s decision itself that there had been a hearing, and clear from the briefing pack he received (which indexed the material provided and drew attention to that index) that the pack of information did not include any transcript.

56    For completeness, I also note that I do not accept that the terms of paragraph 9 of the Minister’s reasons, and his reference to the “decision record” of the Tribunal, creates ambiguity. It is clear from paragraph 15 of the briefing note that the Minister was provided with the documents before the Tribunal, and that the Minister’s attention was drawn to the separately identified documents that contained representations made by, and on behalf of, the Applicant.

57    Accordingly, the Applicant has not established that the Minister made the decision in question labouring under a misapprehension. It is not necessary to determine whether, if the Minister was labouring under a misapprehension, that would constitute jurisdictional error on the basis that the Minister exercised his discretion unreasonably. It is also not necessary to address the Minister’s submission regarding materiality.

58    I note that the Applicant’s further amended originating application referred to the “Cancellation Decision”, which was defined as the Minister’s decision made on 4 June 2024 to set aside the Tribunal’s decision and cancel the Applicant’s visa, as being the decision affected by jurisdictional error. However, the Applicant’s written and oral submissions only addressed the decision not to afford natural justice in addressing this ground. Nevertheless, as I have found that the Applicant has not established that the Minister misapprehended what was before him, even if the wider ambit of the further amended originating application were pressed, I would reject it on the same basis.

Conclusion

59    The application will be dismissed with costs.

Associate:

Dated: 11 December 2024