Federal Court of Australia

PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the Respondent’s decision made under s 501BA of the Migration Act 1958 (Cth) on 15 June 2024 to set aside the decision of the Administrative Appeals Tribunal dated 18 September 2023 and cancel the Applicant’s Refugee (Class XB) (Subclass 200) visa.

2.    The Respondent pay the Applicant’s costs of the proceeding as taxed, assessed or otherwise agreed.

3.    The parties confer regarding Prayers for Relief 4 and 5 of the originating application filed on 31 July 2024 and determine whether there remains any dispute to be resolved.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    This case arises out of the cancellation of a visa on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). That provision requires the cancellation of a visa if the Minister is satisfied that the visa holder fails the ‘character test’. There is no dispute that the Applicant fails the character test since he has been convicted of criminal offences which have resulted in him being sentenced to more than one year in prison. Upon becoming aware of those facts, a delegate of the Minister formed the opinion that the Applicant failed the character test and cancelled his visa under s 501(3A). He was then taken into immigration detention since he no longer held a visa.

2    A power exists in the Minister to revoke such a cancellation if the Minister is satisfied that there is ‘another reason’ why the original decision should be revoked: s 501CA(4)(b)(ii). The Applicant applied to have the Minister exercise this power, but a delegate of the Minister refused his application. On an application for a review of that decision on its merits made to the Administrative Appeals Tribunal (‘the Tribunal’), the Applicant was successful. The Tribunal set aside the delegate’s decision and restored the Applicant’s visa to him. He was then released from immigration detention.

3    The present case concerns what happened next. The Tribunal’s decision to return the Applicant’s visa to him had been made on 18 September 2023. About nine months later, on 15 June 2024, the Minister exercised a power he possesses to override the Tribunal’s decision conferred by s 501BA. It provides:

501BA    Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(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:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

Note:     For notification of decisions under subsection (2), see section 501G.

4    The effect of the Minister’s exercise of the power under s 501BA was that the Applicant’s visa again stood cancelled. It was only on 26 June 2024 that the Applicant was notified that this had occurred. Lacking a visa, he was then taken back into immigration detention.

5    By the present proceeding, the Applicant challenges the lawfulness of the Minister’s exercise of power under s 501BA. The challenges relate to the Applicant’s possible status as a stateless person and to whether it was in the best interests of his minor children that he should be removed permanently from Australia.

6    The Applicant’s case turns, in part, on the reasons the Tribunal had for concluding that his visa should be restored to him. As already noted, the Tribunal’s decision was made on 18 September 2023. The significance of that date is that it was before the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 (‘NZYQ’) which was given on 28 November 2023. Before NZYQ, the Tribunal was obliged to act on the basis that it was legally possible for a person to be held in immigration detention indefinitely because the High Court had held this to be so in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (‘Al-Kateb’). Indefinite detention would typically occur where it was impossible for the Commonwealth to deport a person to another nation. In that circumstance, the person could not be released from detention because they did not hold a valid visa, but they could not be removed from Australia either. Indefinite detention was the consequence. After NZYQ overruled this aspect of Al-Kateb, the position changed so that detention was not authorised where there was ‘no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future’: NZYQ at [55] per the Court.

7    The Tribunal had been obliged by this Court’s decision in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (‘NBMZ’) at [9]-[10] per Allsop CJ and Katzmann J and at [177] per Buchanan J to take into account what the legal consequences for the Applicant would be if his visa was cancelled (or, more precisely, if it remained cancelled). At the time of the Tribunal’s decision (before NZYQ), it therefore had to proceed on the basis that if his visa remained cancelled and the Applicant could not be deported from Australia, then he would be held in indefinite detention. The Tribunal noted that, in the proceeding before it, the Applicant and the Minister both agreed that he could not be returned to Bhutan or Nepal. (I interpolate here that the Applicant was born in Bhutan from which, as a person of the Lhotshampa ethnicity, he and many others were expelled to Nepal.)

8    The Tribunal noted his claim that he could not be returned to Bhutan or Nepal because the Lhotshampa faced persecution in both places. Importantly, it concluded that it could not resolve these refugee claims on the material before it, but it accepted that they could be resolved if the Applicant were to make an application for a protection visa under s 36 of the Act.

9    However, the Tribunal also reasoned that it was unlikely he would obtain a protection visa given that his current visa had been cancelled on character grounds. No doubt, the Tribunal had in mind that whilst satisfaction of the character test is not a prerequisite to obtaining a protection visa, there are provisions in s 36(2C) which give the Minister a degree of latitude in preventing the issue of a protection visa where an applicant has a criminal record. The Applicant also urged that the granting of a protection visa seemed unlikely because of the Minister’s character concerns and the application of s 501(1) of Act: at [97]. In light of that matter, the Tribunal therefore concluded that it was likely that the Applicant would face indefinite detention: at [99]. Although it did not expressly articulate this, it is evident that it reached this conclusion because it perceived that the parties had agreed that he could not be returned to Bhutan or Nepal.

10    The Tribunal also noted a claim by the Applicant that he was stateless: at [7]. Whilst it determined that it could not determine his refugee claims which were made on the grounds of his Lhotshampa ethnicity, it made no explicit finding in relation to his claim that he was stateless. It is likely that the Tribunal assumed that its reasoning that the Applicant would be unlikely to be granted a protection visa and therefore faced the likelihood of indefinite detention would apply equally to that claim.

11    I do not read the Tribunal as having made any determination on the facts that the Applicant was stateless or that he would face persecution on the grounds of his Lhotshampa ethnicity if returned to either of Bhutan or Nepal. In the section of its reasons dealing with what the legal consequences would be if the Applicant’s visa remained cancelled, the Tribunal did state at [91] that ‘[t]he parties agreed that the Applicant cannot return to either Bhutan or Nepal’. Since the Tribunal had concluded that it would not determine his refugee claims, this sentence can only be read as being addressed to the question of whether he had a right of return to either place. Even so, I do not read [91] as a determination that the Applicant was stateless. Rather, I read it as the Tribunal recording the way in which the parties agreed that the Tribunal should approach the matter. The Tribunal was, of course, required to form a view about whether the Applicant could be returned to either place. This is so because it could not determine what the legal consequences of the visa remaining cancelled would be without forming a view as to where he might be removed to.

12    The question of whether the Applicant had a right to return to Bhutan or Nepal is a question which would turn on how the laws of those places operated in relation to the Lhotshampa. The Tribunal did not embark on such an exercise and the agreement of the parties would appear to have been intended to relieve it of any obligation to do so.

13    Ultimately the Tribunal concluded that the risk of the Applicant’s indefinite detention provided a sufficient reason to restore the Applicant’s visa to him. The Tribunal’s conclusion relied in part on expert evidence explaining the serious impacts he was likely to suffer from prolonged detention and even more so from indefinite detention.

14    It was in that context that the Minister then made the decision, nearly 9 months later, on 15 June 2024 to cancel the Applicant’s visa under s 501BA. What had changed by then was, of course, the High Court’s decision in NZYQ. Given that the Tribunal’s decision was based upon an assumption that indefinite detention was the likely consequence of the Applicant’s visa remaining cancelled, the effect of NZYQ was to falsify that assumption. It is natural to think that the falsification of that assumption may have provided some of the impetus for the Minister’s decision to override the Tribunal’s decision.

15    When the Minister used the power in s 501BA to set aside the Tribunal’s decision on 15 June 2024, he gave written reasons for doing so. As I have noted above, whilst the Tribunal thought that the Applicant’s protection claims could be dealt with if he were to apply for a protection visa, it also thought that it was unlikely that the Applicant would ever be granted a protection visa in view of his criminal record. By contrast, the Minister now concluded that both the Applicant’s claim to be stateless and his claim to face persecution on the grounds of his ethnicity if returned to Bhutan or Nepal would be adequately considered if he applied for a protection visa. Whilst the Tribunal had addressed itself to whether a protection visa application had any chance of success in light of the Applicant’s first visa being cancelled on character grounds, the Minister did not address himself to this issue. Instead, he reasoned that the Applicant could not be removed from Australia whilst any such protection visa application was in train and that the process would resolve his claims for protection and his claim to be stateless. If either succeeded, he would be released under NZYQ.

16    Like the Tribunal, the Minister was bound to consider the legal consequences of the Applicant’s visa being cancelled. Whereas the Tribunal, in the world before NZYQ, had foreseen the probable prospect of indefinite detention, the Minister, now in the post-NZYQ world, correctly foresaw no such risk. He did, however, foresee that the Applicant would be detained whilst his protection visa application was processed or during the pendency of any removal proceedings. But he concluded that the Applicant’s claim to be stateless was one which ought not be given any weight in the decision-making process (presumably because it would be considered during any protection visa process).

17    The Minister’s reasoning about these matters was as follows:

71.    I am aware that the statutory consequence of a decision to cancel [PLQF]’s visa is that, as an unlawful non-citizen, [PLQF] becomes liable under s198 of the Act to removal from Australia as soon as reasonably practicable, and in the meantime, becomes or continues to be liable to detention under s189 of the Act, provided that removal is practicable in the reasonably foreseeable future.

72.    However, I have also noted that the requirement to detain [PLQF] in immigration detention and to remove him under s198 would not apply if, following a decision to cancel his visa, he is granted another visa. I acknowledge that if I decide to cancel [PLQF]’s visa under s501BA(2), he would be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994).

73.    I have considered [PLQF]’s claims that he would face persecution in Bhutan or Nepal on the basis of his being of Lhotshampa ethnicity. [PLQF] also asserts that he is stateless and that he does not have a right of return to either Bhutan or Nepal.

74.    I accept that the nature of the claims outlined above indicates a potential for Australia’s international non-refoulement obligations to be engaged in relation to [PLQF]. I also accept that there is evidence before me that suggests that Lhotshampa who were expelled to Nepal are not recognised by Bhutan as being Bhutanese citizens Attachments N, V.

75.    It is open to [PLQF] to make an application for a Protection visa. Provided that such a visa application is valid, the duty to remove him under s198 of the Act would not apply while the application was being determined. The process for determining Protection visa applications is specifically designed for consideration of non-refoulement obligations, as given effect by the Act. During the processing of any such application, [PLQF]’s claims regarding Australia’s nonrefoulement obligations would be fully assessed. The processing of any such application would also likely involve consideration of [PLQF]’s claim that he is stateless.

76.    I recognise that the character concerns about [PLQF] which I have considered in deciding whether to cancel his visa, are likely to also be considered in the context of any Protection visa application [PLQF] may wish to make. However, I further note that a Protection visa decision maker is required by s36A of the Act to make findings in relation to any protection claims [PLQF] may make in a Protection visa application before consideration is given to any other visa criteria, including character or security concerns. If a protection finding is made, [PLQF]’s removal would not be authorised or required to the country in respect of which that finding is made (unless one of the exceptions in s197C(3)(c) were to apply).

77.    I also find that in the event he does not apply for and/or is not granted a Protection visa, it will be necessary in the context of any steps to remove [PLQF] to Bhutan or Nepal to consider his claims of statelessness. In this regard, I note that the legal effect of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 is that where the statutory duty to remove a non-citizen has arisen (pursuant to s 198 of the Act), detention of the non-citizen will no longer be supported by s189 and s196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. In such a case, the non-citizen must be released from immigration detention, if so held.

78.    In light of the above and pending any future assessment of [PLQF]’s claims of persecution and statelessness, I have not given this consideration weight in my consideration of visa cancellation under s501BA(2).

18    Under Ground 1, the Applicant submits that this reasoning discloses the existence of three jurisdictional errors. Broadly speaking, these are:

(1)    The implication in the second sentence of [72] that the Applicant could apply for a Bridging R (Class WR) visa was incomplete. The Applicant could not apply for that visa unless the Minister invited him to do so.

(2)    The Minister concluded at [73]-[78] that he would not determine whether the Applicant was stateless but this was irrational where the Minister had already agreed before the Tribunal that the Applicant could not be returned to Bhutan or Nepal.

(3)    The Minister had failed to take into account the legal consequence of his cancellation decision, namely, the fact that the Applicant would be detained whilst any protection visa application was determined and during any removal proceedings.

19    Under Ground 2, the Applicant submits that the Minister’s reasoning in respect of the best interests of his minor children lacked an intelligible justification because the Minister only assessed the impact of the Applicant’s removal and not the direct and immediate consequence of the Applicant’s detention.

20    It is convenient to deal with these separately.

Ground 1.1: Bridging R (Class WR) visa

21    It is not in dispute that the Minister was bound to have regard to the legal consequences of his decision to cancel the visa. In undertaking that task, the Minister was bound to proceed on a correct understanding of the Act and its operation: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586 at [34] per Murphy, Stewart and McEvoy JJ.

22    It is also not in dispute that the Applicant could not apply for a Bridging R (Class WR) visa without the Minister first inviting him to do so: Migration Regulations 1994 (Cth) (‘the Regulations’) reg 2.20A(2) and Schedule 1, cl 1307(1). It is worth noting at this point that the Bridging R (Class WR) visa was introduced in the wake of NZYQ and is a special visa that can be given to persons who can no longer lawfully be held in immigration detention because of NZYQ. The Bridging R (Class WR) visa is subject to restrictions which curtail civil liberties. Recently, the provisions requiring the holder of a Bridging R visa to wear a tracking device on their ankle and to observe a strict curfew were themselves struck down on constitutional grounds: YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 at [5] per Gageler CJ, Gordon, Gleeson and Jagot JJ.

23    Whilst the Minister can invite a person to apply for a Bridging R visa, he can in fact issue one without any application at all (reg 2.25AA of the Regulations) and, presumably, even if the person to whom it is issued does not desire to be the holder of such a visa. Speaking practically, a person who has been released from immigration detention because of NZYQ would not, if properly advised, apply for a Bridging R (Class WR) visa for two reasons. First, the general operation of the Act is premised on the assumption that a non-citizen without a visa must be held in immigration detention. Thus, ordinarily the only way to secure release from immigration detention is to secure the grant of a visa. However, the cohort of non-citizens affected by the decision in NZYQ disrupts the correctness of this assumption. This group of people do not need a visa to secure their release because they cannot lawfully be detained at all. Such a person has, therefore, no incentive to apply for something which they do not need. Secondly, the effect of the grant of the visa is to expose its holder to significant restrictions on some of their civil liberties, so they have a positive reason not to apply for it.

24    All that is by way of context. The immediate question concerns this sentence at [72] in the Minister’s reasons:

I acknowledge that if I decide to cancel [the Applicant’s] visa under s501BA(2), he would be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994).

25    The Applicant submits that the Minister failed to have a complete understanding of the operation of the Act because he could not apply for a Bridging R (Class WR) visa unless the Minister first invited him to do so. Sections 501E(1) and (2) provide:

501E    Refusal or cancellation of visa—prohibition on applying for other visas

(1)    A person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

(a)    at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

(b)    the decision was neither set aside nor revoked before the application time.

    …

(2)    Subsection (1) does not prevent a person, at the application time, from making an application for:

(a)    a protection visa; or

(b)    a visa specified in the regulations for the purposes of this subsection.

Note: The person may however be prevented from applying for a protection visa because of section 48A.

26    The effect of s 501E(2) is to lift the ban on applying for a visa imposed by s 501E(1) in the case of protection visas together with any other visa specified in regulations. The Bridging R (Class WR) visa is a visa specified in the Regulations, reg 2.12AA of which provides:

2.12AA    Refusal or cancellation of visa—prohibition on applying for other visa (Act, s 501E)

For paragraph 501E(2)(b) of the Act, a Bridging R (Class WR) visa is specified.

27    The effect of s 501E(2)(b) and reg 2.12AA is that s 501E(1) did not itself prevent the Applicant from applying for a Bridging R (Class WR) visa. What the Minister has said at [72] is therefore correct: s 501E did not prevent the Applicant from applying for the visa.

28    But the Applicant’s submission is not that the Minister’s statement was wrong. Rather, he points to the statement’s incompleteness. The Applicant submits that a complete statement would have had two elements:

(1)    Section 501E did not prevent the Applicant from applying for a Bridging R (Class WR) visa;

(4)    However, the Applicant could not apply for such a visa unless the Minister first invited him to do so pursuant to reg 2.20A.

29    The present question is whether there has been a jurisdictional error. The error alleged is a failure to have regard to the legal consequences of a decision to cancel a visa as required under NBMZ. The Applicant points out that this had been held to include a failure to take into account the direct and immediate statutory consequence of the decision (citing Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 1 (‘Taulahi’) at [81]-[86] per Kenny, Flick and Griffiths JJ).

30    I do not accept the Applicant’s argument regarding reg 2.20A. As noted above, a Bridging R (Class WR) visa may be issued in response to a visa application if the visa applicant has been given an invitation in writing by the Minister to apply for the visa and the visa applicant accepts that invitation in writing within seven days: reg 2.20A. Under this structure, it cannot be said that the fact that the Minister could invite the Applicant to apply for a Bridging R (Class WR) visa was a direct and immediate statutory consequence of the cancellation. Immediately prior to the Minister’s decision, the Applicant could not apply for a Bridging R (Class WR) visa unless the Minister first invited him to do so. Immediately after the cancellation decision this remained the case. It is therefore not possible to describe the legal fact that the Minister could invite the Applicant to apply for a Bridging R (Class WR) visa as being causally connected to the cancellation decision. It is thus also not possible to describe it as a direct and immediate statutory consequence of the cancellation (in the language of Taulahi) because it was no kind of consequence at all.

31    I have pointed out above that another way that a non-citizen may receive a Bridging R (Class WR) visa is by the Minister acting on his own motion to grant the visa without any application being made for it at all. The Applicant did not rely upon this feature of the Bridging R (Class WR) visa to aid his contention that the Minister’s statement was incomplete, and it does not strictly arise for consideration.

32    However, if it had difficult questions may have ensued. Where the Minister issues an invitation to apply for a Bridging R (Class WR) visa, there do not appear to be any eligibility criteria entailed in reg 2.20A which restrict the class of persons to whom he may issue such an invitation. So long as the person is issued with an invitation by the Minister and the person accepts the invitation in writing, the ensuing visa application will be valid: reg 2.20A(2).

33    By contrast, where the Minister issues a Bridging R (Class WR) visa to a person without any prior application, this is not so. The Minister can only issue the visa to a person who is an ‘eligible non-citizen’ and in respect of whom the Minister cannot exercise the power in 195A to issue a visa: reg 2.25AA(1). Dealing first with the concept of an eligible non-citizen, it emerges from Subdivision AF of Division 3 of Part 2 of the Act which deals with bridging visas. A person will be an eligible non-citizen if they have been immigration cleared, they are a member of a prescribed class of persons or the Minister determines them to be an eligible non-citizen: s 72 of the Act.

34    As envisaged by s 72, reg 2.20 prescribes a long series of classes of persons as eligible non-citizens and hence as persons who may be granted a bridging visa. In each case, however, class membership depends on whether the various factual stipulations in s 72 and reg 2.20(1)-(18) are satisfied. The point for present purposes is that whether a person is an eligible non-citizen is a factual question. The second requirement in reg 2.20A – the unavailability to the Minister of the power in s 195A to grant a visa to a person in immigration detention – turns either on the fact that the person is not in immigration detention (rendering s 195A irrelevant) or, if the person is in detention, on the Minister having concluded that it would not be in the public interest for him to exercise that power.

35    Thus, in a case where the person is in immigration detention, the ability of the Minister to issue a Bridging R (Class WR) visa without application will require facts which mean that the person is an eligible non-citizen and there will also need to have been a determination by the Minister under s 195A that the public interest does not require the grant of a visa under that provision.

36    The effect of reg 2.25AA is therefore to make the power of the Minister to issue a Bridging R (Class WR) visa without application contingent upon multiple factual matters. This means that one cannot say in the abstract that the capacity of the Minister to issue a Bridging R (Class WR) visa is a direct and immediate statutory consequence of any cancellation decision.

37    But this is a statement made divorced from facts. It may have been possible – I do not necessarily say it was – that the Applicant could have alleged that he was an eligible non-citizen and that the Minister’s power under s 195A was not enlivened. If those matters were proven, then the question would have arisen whether the capacity of the Minister to issue the visa under reg 2.25AA could be said to be a direct and immediate consequence of the cancellation decision. Since that case is not put, I do not think that I should attempt to answer it.

Ground 1.2: Irrationality or unreasonableness in dealing with the question of the Applicant’s statelessness

38    The evidence supporting the Minister’s reasons for making the decision consists of a submission document prepared by the Department of Home Affairs (‘the Department’) dated 12 June 2024. Attached to the submission were various documents, including some draft reasons. The submission contained 32 paragraphs which I infer were read by the Minister. The Minister indicated on the decision page that he wished to make the decision in accordance with the draft reasons. He signed both the submission and the draft reasons and dated them 15 June 2024.

39    The submission gave advice to the Minister that he could proceed in a way which gave the Applicant procedural fairness or in a way which did not. This advice was consistent with the terms of ss 501BA(2)-(3) (which permit a Ministerial override decision without natural justice) and this Court’s decision in Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555 at [41] per Jagot, Robertson and Farrell JJ which holds that s 501BA(2), whilst not requiring natural justice, does not prohibit the Minister from giving a person natural justice if he so wishes.

40    The submission suggested to the Minister that he could choose to proceed without affording the Applicant natural justice in circumstances where the Applicant had already made extensive representations to the Tribunal comparatively recently. The precise advice was at §§9-10:

9.    In the circumstances of this case, where [PLQF] made extensive representations in seeking revocation of the mandatory cancellation, and made submissions in the AAT proceedings comparatively recently, you may consider it appropriate to proceed to make a decision without providing [PLQF] with a further opportunity to be heard.

10.    If you choose to proceed without giving [PLQF] an opportunity to be heard before making your decision, [PLQF] will not have any further opportunity to advance reasons as to why his visa should not be cancelled, including because of the impact a cancellation decision would have on him and his family.

41    I infer that the reason the Minister decided to proceed without affording the Applicant natural justice was because he accepted this advice. The Minister’s reasons for decision confirm that the Minister acted on this advice at [9]:

9.    In this case, having regard to the particular circumstances, including that [PLQF] made extensive representations in seeking revocation of the mandatory cancellation and made submissions in the AAT proceedings relatively recently, I chose to proceed without giving [PLQF] an opportunity to be heard before making my decision. I am cognisant that as a consequence, [PLQF] has not had the opportunity to advance reasons why an adverse decision should not now be made.

42    The Minister’s reasons for decision also throw light on what he took into account in making his decision at [10]:

10.    I have, however, given consideration to information given by [PLQF] in relation to the original request for revocation, further information given to the AAT, and information as reflected in the decision record of the AAT in revoking the decision to cancel [PLQF]’s visa.

43    The draft decision, which the Minister signed and adopted, was also included among the attachments to the Department’s submission. The decision states that the Minister took 2 hours and 10 minutes to consider the submission and its attachments. Accordingly, it is open to infer, and I do, that the submission and its attachments, which include the draft reasons and the 23 attachments to the draft reasons (each marked with the letters ‘A’ to ‘W’), were the universe of evidence which was before the Minister at the time that he made the decision. I also find that the Minister read the submission and its attachments.

44    As noted in his reasons, the Minister found that the Applicant was born in Bhutan and was forced to flee that country with his family at the age of six: [34]. He then lived in a refugee camp in Nepal until he was granted a protection visa by Australia in August 2012: [34]. The Minister appears to have accepted that the Applicant was of Lhotshampa ethnicity although this is not entirely clear ([73]), and that there was evidence before him that the Lhotshampa had been expelled to Nepal and were not recognised as being Bhutanese citizens: [74]. He noted that the Applicant claimed to be stateless because he could return to neither Bhutan nor Nepal: [73]. Paragraphs [73]-[74] of the Minister’s reasons are quoted at paragraph [17] above.

45    The Minister did not make any determination of the Applicant’s refugee claims or his claim to be stateless. Rather, he noted that if the Applicant applied for a protection visa both issues could be examined in the course of that process. Whilst acknowledging that the character concerns the Minister had about the Applicant might lead to him not receiving a protection visa, the Minister noted that the terms of s 36A still meant that if his claims for protection were made good, he would not be able to be removed. He further noted that, even if the Applicant did not apply for a protection visa or his application was denied, it would still remain necessary to determine whether he was stateless in the context of any steps to remove him. The Minister also acknowledged the effect of NZYQ was that, if there was no real prospect that it would be practicable to remove the Applicant from Australia in the reasonably foreseeable future, then he would have to be released. He therefore concluded that he would not give any weight to the fact that the Applicant had claims for protection and claimed to be stateless. The Minister’s reasons on these matters were captured under the heading ‘Legal consequences of the decision’ and I have quoted them at paragraph [17] of this judgment.

46    Most of the Applicant’s arguments on the unreasonableness or irrationality of the Minister’s decision are related to the Tribunal’s statement at [91] of its reasons that ‘[t]he parties agreed that the Applicant cannot return to either Bhutan or Nepal’. The nub of the Applicant’s case is that on the question of whether he could be returned to Bhutan or Nepal, the Minister wholly failed to deal with [91] in which he appeared already to have agreed that the Applicant could not be returned to Bhutan or Nepal. There being nothing else in the material before the Minister which suggested that he could be returned to Bhutan or Nepal, the Applicant submits that it was irrational to decide, as the Minister did, that the question of whether he could be so returned should now be determined in the course of a future application for a protection visa.

47    The submission to the Minister also included various documents which the Applicant submits support his potential claims of statelessness:

(1)    an August 2022 letter to the NSW District Court in relation to the Applicant’s sentencing submitted by Ms Radha Guragai. A Bhutanese refugee herself, Ms Guragai explained that she first met the Applicant at a refugee camp in Nepal while teaching there and discussed the circumstances regarding the expulsion of refugees from Bhutan in the early 1990s;

(2)    a 2022 report from BTI titled the ‘BTI 2022 Country Report — Bhutan’ which documents the expulsion and flight of approximately 100,000 Lhotshampa refugees from Bhutan in the 1990s and ongoing discrimination in Bhutan; and

(3)    a 2011 report from the Department of Foreign Affairs and Trade (‘DFAT’) titled in the court book as the ‘Country Information Report – Nepal’, which notes that the Applicant was ‘recognised by the Government of Nepal (GoN) as a prima facie refugee’ because ‘[r]epatriation is not currently an option for Bhutanese refugees residing in Nepal’; that the Applicant was part of ‘a group referral by UNHCR of applicants regarded as a high priority for resettlement because of persecution on the basis of their Lhotshampa ethnicity and/or a particular vulnerability while in a camp situation’; and that claims for this group were found to be ‘credible’ by DFAT.

48    I do not agree that these materials demonstrate that the Applicant had no right to return to Bhutan or Nepal. They are directed at the different question of whether the Applicant might be persecuted on account of this ethnicity if returned to either place. On the question of statelessness, the highwater mark is in (b) and its reference to the expulsion of the Lhotshampa from Bhutan. Although this may be consistent with statelessness, I would not be prepared to draw that inference.

49    It remains the case, therefore, that the only material before the Minister on the question of whether the Applicant had a right to return to Bhutan or Nepal was his own agreement that this was not possible, as was recorded at [91] of the Tribunal’s reasons. In this Court, the Minister did not identify any other evidence that was before him on 15 June 2024 which contradicted this agreement.

50    Instead, the Minister sought to demonstrate that the Tribunal’s statement at [91] was not correct and that he had not, in fact, ever so agreed by reference to the transcript of the hearing before the Tribunal on 5 September 2023. At the hearing, I accepted as provisionally relevant the transcript and the Minister submitted that it showed that what he had actually agreed was that on the evidence before the Tribunal it could not be satisfied that the Applicant could be returned to either Bhutan or Nepal.

51    I now conclude that the tender of the transcript should be rejected. The Applicant’s case is not that it was irrational for the Minister to have thought on 5 September 2023 (when the concession was made to the Tribunal) that the Applicant could not be returned to Bhutan or Nepal but then to have thought on 15 June 2024 that this was a topic which needed to be investigated. Nor is it the Applicant’s case that the Court needs to draw an inference as to the Minister’s thinking on 5 September 2023 beyond the recorded position in the Tribunal’s reasons or that the Minister is ‘bound’ somehow by his delegate’s representation at a hearing below – contrary to the Minister’s submissions. Rather, the Applicant’s case is that it was irrational for the Minister, on 15 June 2024, to defer the question of his statelessness when the only material before him on this issue showed that he had already agreed that the Applicant could not be returned to Bhutan or Nepal.

52    If the Applicant’s case concerned a change in the Minister’s position or required the Court to look beyond the Minister’s position recorded at [91] of the Tribunal’s reasons, then I would accept that the Minister’s state of mind on 5 September 2023 might be in issue. In that circumstance, I would accept that it might be relevant in the sense that that word is used in s 55 of the Evidence Act 1995 (Cth) to inquire into what the Minister’s actual state of mind on that day was. This would entail that the transcript of the hearing before the Tribunal would be admissible to the extent that it threw light on the Minister’s state of mind.

53    However, because the Applicant’s case is not about the Minister’s state of mind on 5 September 2023 but, instead, what was before him on 15 June 2024, this line of reasoning cannot be deployed to render admissible any inquiry into the Minister’s state of mind on 5 September 2023. It follows that the transcript of the hearing before the Tribunal is not admissible and that the Minister’s submission based on the transcript must be rejected.

54    The reasonableness of the Minister’s decision-making process is to be determined by reference to the materials which were before him. I exclude the possibility that the Minister had any personal views about the matter independent of the material which was before him arising, for example, from any recollection he might have had about the instructions he had given in relation to the conduct of the proceeding before the Tribunal. The Minister was not called to give evidence, and I am unwilling to draw an inference that he recalled any such instructions. In any event, it was not suggested by the Minister that I should draw such an inference.

55    It follows that the only information relevant to the Applicant’s statelessness which may be inferred to have been in the Minister’s mind on 15 June 2024 was that he, the Minister, had already agreed that the Applicant could not be removed to Bhutan or Nepal. I do not think the Minister, armed with that information alone, could reasonably or rationally arrive at the conclusion that it was appropriate for the Applicant’s claim that he was stateless to be deferred to the protection visa process. Why defer for later determination whether the Applicant could be removed to Bhutan or Nepal when, on the only information before him, the Minister had already agreed that he could not be removed to either place?

56    I reject the Minister’s submission that he was only obliged to consider the statutory consequences of the cancellation decision and that [91] was not such a consequence. This submission misapprehends the nature of the Applicant’s case which is concerned with rationality rather than mandatory relevant considerations. Paragraph 91 is not a mandatory relevant consideration, as the Minister correctly submits, but this is no answer to a contention that it was irrational for the Minister to take a course of action to determine a matter which, on the material before him, he had already determined.

57    Whilst it is clear from the Minister’s reasons that he decided to defer consideration of the Applicant’s statelessness to the protection visa process, less clear is why he decided to do that when, on the material before him, he had already accepted that the Applicant could not be returned to Bhutan or Nepal. In some circumstances, a failure by a decision-maker to give a reason for a decision (or, as here, an aspect of a decision) may permit a court to infer that the decision-maker had no good reason for the decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at [7] per Gibbs CJ. In this case, I would draw that inference. The apparent unreasonableness and irrationality of the decision is underscored by the fact that the Minister did not proffer any explanation for the decision.

58    The Minister’s decision must therefore be set aside.

59    The Applicant also pursued another submission based on the effect of [91] of the Tribunal’s reasons which went as follows: the Minister concluded that it was a benefit to the community for the Applicant to remain in immigration detention (since the community would then be safe from the risk of his misconduct). But, argued the Applicant, his detention was unlawful because of NZYQ. It was unreasonable or irrational to assess the benefit to the community on the basis of a detention which was unlawful. I accept this submission. The only material before the Minister indicated that the Minister had already agreed that the Applicant could not be returned to Bhutan or Nepal. The only information before the Minister therefore also showed that the Applicant was a member of the NZYQ cohort. On what the Minister knew, he was bound to release the Applicant immediately (and indeed did so about one week after the Applicant’s solicitor requested his release citing NZYQ and [91] of the Tribunal’s reasons). That being so, it was incoherent to be considering what the benefits to the community of the Applicant’s ongoing detention would be when there could be no such detention.

Ground 1.3: Alternative case that Minister was wrong to give the fact that the Applicant claimed to be stateless no weight

60    Having concluded that the Minister’s decision to defer consideration of the Applicant’s claim to be stateless to the protection visa process was irrational or unreasonable, it is not strictly necessary to consider whether it was also irrational or unreasonable for the Minister to determine that he would give the fact that the Applicant claimed to be stateless no weight.

61    The Applicant’s submissions about this raise difficult issues. These include: (a) whether the Minister was bound to have regard to the decision’s human implications (cf. Taulahi at [84] per Kenny, Flick and Griffiths JJ); (b) upon what basis the Minister decided to give no weight to the fact that the Applicant would be detained for the finite period during which any protection visa application was processed; (c) whether the Minister could lawfully give no weight to that detention (cf. Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [31]-[43] per Rangiah J); and, (d) how those principles are to be accommodated with the more general principle that it is for a decision-maker to decide how much weight, including no weight at all, is to be afforded a particular consideration.

62    I would prefer not to answer these questions unless it is necessary. Since it is not necessary, I do not propose to do so.

Ground 2: The best interests of the Applicant’s children

63    The Minister was not bound by domestic law to take into account the best interests of the Applicant’s minor children. Nevertheless, at [54] of his reasons he expressed himself mindful of Art 3 of the United Nations Convention on the Rights of the Child to which, he observed, Australia was a signatory. He therefore decided that he would treat ‘the best interests of any affected minor children in Australia as a significant consideration’: [54].

64    The Minister concluded that it was in the best interests of the Applicant’s two minor children that his visa not be cancelled: [59]. In the course of reaching that decision, the Minister accepted that the Applicant had a close and ongoing parental relationship with both his children: [57]. The Minister also found that they would likely suffer emotional impact if the Applicant was removed from Australia: [57]. The Minister did not, however, consider what the impact on the two children would be if instead of being removed from Australia, the Applicant was detained in immigration detention whilst his protection visa application was being processed.

65    The Applicant submits that it was unreasonable, irrational or illogical to embark upon a consideration of the best interests of his children without examining what the impact upon them would be if he was kept in immigration detention. Whilst the Minister had examined what their best interests were in the event that he were deported to Bhutan or Nepal, he had failed to address himself to what would occur if he were instead kept in immigration detention whilst any protection visa application was processed. In that regard, the Applicant submitted that there was evidence that his detention on an earlier occasion had harmed his children. This was made in aid of a submission that taking the Applicant back into detention again was even more likely to distress them.

66    It is not necessary to canvass that evidence. The Applicant’s submission is sound. In light of the fact that the material before the Minister showed that he had already agreed that the Applicant could not be removed from Australia, the Minister’s treatment of the best interests of his children proceeds on a misconceived basis that the Applicant would be removed. In my view, this is completely irrational.

67    Whilst I accept the Minister’s submission that he was not bound to consider the best interests of the Applicant’s minor children from the perspective of every possible eventuality, I do not think this matters. Given the context in which he made his decision, the Minister was bound to consider the impact on his children of the Applicant’s finite detention whilst his protection visa application was being processed or during the pendency of any removal proceedings. Instead, the Minister examined the best interests of the children on a hypothesis which had no foundations in the reality disclosed by the material before the Minister.

68    Nor do I accept the Minister’s submission that this error was immaterial to his decision. Here the submission was that he concluded that it was in the best interests of the two children that the Applicant’s visa not be cancelled. The Minister proceeded on the basis that the Applicant’s refugee and statelessness claims would be tested through the protection visa process and that whilst that took place he would be held in immigration detention. In deciding to pursue that course, the Minister overlooked entirely what the effect of his decision would be on the children. A rational or reasonable process of decision making would have involved considering the bests interests of the minor children in light of the actual decision the Minister made and not some other eventuality with no foundation in reality.

69    I am unpersuaded by the Minister’s submission that any such error was immaterial because the effects on the children of the detention would have to be less than the impact upon them of his removal from Australia. That submission necessarily leads one down the slippery slope of considering the evidence about the medical issues the children had suffered during his previous detention and extrapolating that material into a scenario of repeat detention followed by an impressionistic assessment, unaided by any evidence, of how that kind of harm compares to being deprived altogether of one’s parent. I do not think that a judicial review court under the guise of a materiality analysis ought to embark upon such a venture.

Additional injunctive relief

70    In addition to the principal relief the Applicant seeks, he also seeks the following relief at Prayers for Relief 4 and 5:

(1)    A mandatory injunction be issued requiring the respondent to cause the electronic monitoring device fitted on the applicant to be removed.

(2)    A writ of prohibition, or in the alternative an injunction, be issued restraining the respondent from enforcing the conditions on the Bridging R (subclass 070) visa purportedly granted to the applicant on 23 August 2024.

71    Since the Minister’s decision of 15 June 2024 will be quashed, this relief seems unnecessary at this time. Prayer 4 is moot as I understand the Applicant is no longer subject to a monitoring device. Prayer 5 would also seem to be moot on basis that the Applicant appears no longer to be eligible for a Bridging R (subclass 070) visa to which his conditions are attached because the effect of this judgment will be to reinstate the Tribunal’s decision. As such, the Applicant would no longer appear to be an ‘unlawful non-citizen’: reg 2.25AA(1)(a). The Minister also accepts in his submissions that granting the Applicant’s first prayer for relief would mean that the Applicant would no longer hold a ‘Bridging R (Class WR) visa or be subject to the conditions on that visa’ in light of s 82(3) of the Act. This section provides that a ‘bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect’.

72    Nonetheless, I will withhold any decision on these Prayers for Relief for the time being to allow the parties the opportunity to confer as to the effect of this judgment and then bring any further applications or proposed orders that may be appropriate.

Conclusion

73    The Minister’s decision of 15 June 2024 must be quashed. Whether the Minister seeks to exercise the cancellation power again will be for him to decide. The Minister must bear the Applicant’s costs as taxed, assessed or otherwise agreed. I will stand over Prayers 4 and 5 for a case management hearing in February, on a date agreed by the parties and convenient to the Court. In the interim, the parties may approach chambers in the event that any issues arise regarding those prayers.

Associate:    

Dated:    18 December 2024