FEDERAL COURT OF AUSTRALIA

Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    There be liberty to apply in relation to the costs of the application.

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

REASONS FOR JUDGMENT

COLVIN J:

1 In June 2021, Mr Foster Moli was sentenced to a three year term of imprisonment after being convicted of possessing a trafficable quantity of methylamphetamine with intent to sell or supply.  The sentencing judge said that Mr Moli's criminal responsibility arose from the fact that he was knowingly involved in a drug deal by facilitating the proposed transaction and by providing his home as the location for the transaction.  The offence was found to have occurred in the context of what the judge described as 'low-level drug dealing' by Mr Moli.  At the time of being sentenced Mr Moli was 36 years of age and had been living in Australia for about eight years.

2 By reason of Mr Moli's sentence and imprisonment, his visa was cancelled by the Minister as required by s 501(3A) of the Migration Act 1958 (Cth).  Mr Moli made representations to the Minister to revoke the cancellation of his visa in the exercise of the powers conferred by s 501CA(4).  A delegate of the Minister decided not to revoke the visa cancellation.  Mr Moli applied for review in the Administrative Appeals Tribunal.  The Tribunal decided that his visa should be reinstated.  Mr Moli was then released into the community on parole.

3 Thereafter, for 16 months Mr Moli lived in the community with his partner and two young daughters.  A decision was then made under s 501BA to set aside the decision of the Tribunal and to cancel his visa.  Section 501BA confers a personal power upon the Minister to make a decision of that kind if (a) the Minister is satisfied that the person does not pass the character test (because of the operation of certain specified aspects of the statutory provisions concerning the character test); and (b) 'the Minister is satisfied that the cancellation is in the national interest'.

4 The decision concerning Mr Moli's visa was made by the Assistant Minister.  The decision of the Assistant Minister is a decision of the Minister for the purposes of the Migration Act:  Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 at [19]-[21] (Perry J).  In these reasons, I will refer to the Assistant Minister as the Minister.

The grounds of review

5 Mr Moli seeks judicial review on the basis of alleged jurisdictional error in relation to the Minister's state of satisfaction that the cancellation of his visa was in the national interest.  No issue arises concerning the Minister's state of satisfaction that Mr Moli did not pass the character test.

6 Mr Moli raises three grounds of review.  In substance, taking account of the way in which they were presented in oral submissions, the grounds are:

(1)    In the formation of the required state of satisfaction that cancellation of Mr Moli's visa is in the national interest, the Minister acted unreasonably, irrationally or illogically in failing to consider findings in the parole assessment (which was before the Minister) to the effect that Mr Moli was not considered an imminent risk to the community and did not have regard to, or follow the Minister's own finding that parole would not have been granted unless it was determined that Mr Moli did not present an unreasonable risk of harm to the Australian community.

(2)    In the formation of the required state of satisfaction that cancellation of Mr Moli's visa is in the national interest, the Minister failed to give proper, genuine and realistic consideration to certain remarks by the sentencing judge which indicated that the sentence was imposed principally for reasons of general deterrence and not on the basis of adverse findings as to matters personal to Mr Moli that would bear upon his risk of reoffending.

(3)    The Minister acted upon an erroneous view as to the scope of what may be considered to be in the national interest for the purposes of forming the required state of satisfaction, alternatively there was no reasonable or rational basis for the Minister to form the required state of satisfaction in the circumstances of the case.

Outcome

7 For the following reasons, none of the grounds have been made out and the application must be dismissed.  I will hear from the parties as to costs.

The Minister's reasoning pathway

8 Relevantly for present purposes, the Minister reasoned by the following steps:

(1)    The Minister described the nature of the power conferred by s 501BA (in terms that were not criticised by Mr Moli).

(2)    The Minister then said (para 7):

I am aware that I have a discretion not to cancel the visa, even if I hold the relevant satisfaction regarding the character test and am satisfied about the national interest.

(3)    On the basis of a national criminal history check, the Minister was satisfied that Mr Moli did not pass the character test.

(4)    The Minister said that he had considered whether the cancellation of Mr Moli's visa was in the national interest (para 12).

(5)    The Minister noted that 'national interest' was not defined for the purposes of s 501BA and said that generally there had been a reluctance on the part of the courts to define the meaning of national interest in statutory contexts (para 13).

(6)    Next (para 14), the Minister referred to the statement in Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at [40] that:  'What is in the national interest is largely a political question' and then said:

To the same effect, a number of Federal Court decisions hold that the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to his or her satisfaction (provided that satisfaction is obtained reasonably).

(7)    The Minister immediately went on to say:  'I consider that matters of national interest include, amongst other things, the protection of the community and the expectations of the Australian community' (para 15).

(8)    The Minister then dealt with the topic of the protection of the community (paras 16-52).  The reasoning began by stating (para 16):

In determining whether it is in the national interest to cancel Mr MOLI's visa, I have given the highest priority to the safety of the Australian community and the need to protect the Australian community.  In doing so, I considered the seriousness of Mr MOLI's criminal conduct having regard to the circumstances and nature of the conduct, the likelihood of him reoffending, and the risk he poses to the Australian community if such a likelihood eventuated.

Each of those matters were then considered.

(9)    As to risk to the community, the Minister concluded that there was 'a low, but not negligible likelihood that Mr MOLI will reoffend and note that should he engage in similar conduct again, it would be likely to result in serious psychological, physical harm and/or financial harm to members of the community' (para 51).

(10)    The Minister then addressed the expectations of the Australian community (paras 53-55).  The Minister reasoned to the effect that 'the Australian community, as a norm, expects the Government to not allow [a non-citizen who has engaged in serious conduct in breach of Australian laws] to enter or remain in Australia' (para 53).  Further, that was so regardless of whether or not the non-citizen posed a measurable risk of causing physical harm (para 54).  Those expectations were found to weigh significantly in support of cancellation (para 55).

(11)    I observe that language of that kind has been seen to express a governmental view of community expectations that is to be applied normatively (that is, as a standard that is expected to be observed):  Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59; (2024) 303 FCR 261 at [79]; applying FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454.

(12)    The Minister then reached the following conclusion on national interest (paras 56-58):

Conclusion on national interest considerations

In deciding whether I am satisfied that it is in the national interest to cancel Mr MOLI's … visa, I am required to make an evaluative judgement.  I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national interest being in large part a political question.

In the specific case of Mr MOLI, I have considered the nature and seriousness of his conduct and I have concluded it is serious.  I have also considered the harm that would result if Mr MOLI were to reoffend.  I have considered the likelihood of Mr MOLI reoffending and have found that there is a low, but not negligible likelihood that Mr MOLI will reoffend.  I have also considered the expectations of the Australian community.

Having regard to all of the above, I conclude that the use of my discretionary power to cancel Mr MOLI's … visa is in the national interest.

(13)    As to the Minister's conclusion, I observe that the final sentence was expressed in terms that indicate reasoning by adverting to and having in mind the matters there listed to reach a conclusion that the cancellation of Mr Moli's visa, in the specific case, was in the national interest.  It is those listed matters that were said to 'inform the national interest'.  They were (a) the nature and seriousness of Mr Moli's offending; (b) the harm that would result if Mr Moli was to reoffend; (c) the likelihood of Mr Moli reoffending; and (d) the expectations of the Australian community (earlier stated as an expectation that those who engage in serious conduct in breach of Australian laws should not be allowed by the government to remain in Australia regardless of whether they pose a measurable risk of physical harm).

(14)    Therefore, it appears that the Minister reasoned that because Mr Moli's conduct was 'serious' and there was a low but not negligible risk of reoffending with consequent serious harm to members of the community, and because of the governmental view that all those who had seriously breached Australian law would not be allowed to remain in Australia, the Minister was satisfied that it was in the national interest in Mr Moli's specific case for his visa to be cancelled.

(15)    The Minister (being satisfied in the manner explained above as to the two matters specified in s 501BA) then considered various matters that the Minister identified as bearing upon the discretion as to whether to exercise the power to cancel Mr Moli's visa (paras 59-86).

(16)    The Minister then reasoned that in the exercise of the discretion the highest priority should be given to the safety of the Australian community and the need to protect its safety with the Minister then concluding that 'the considerations against cancellation are outweighed by the serious national interest considerations in this case' (paras 87-97).

The statutory context for s 501BA

9 The expressly stated object of the Migration Act is to 'regulate, in the national interest, the coming into, and presence in, Australia of non-citizens':  s 4(1) (emphasis added).  To advance that object, the Migration Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Migration Act:  s 4(4).  The Migration Act provides for the making of applications for visas which afford permission to a non-citizen to be in Australia.  There are detailed provisions in Division 3 of the Migration Act concerning the kinds of visas that may be granted and the applications for them.

10 In considering whether to grant a visa, the Minister must form a state of satisfaction as to whether the criteria prescribed by the Migration Act or the regulations have been satisfied:  s 65(1)(a)(i) and (ii).  Also, the grant of the visa must not be prevented by other provisions in the Migration Act:  s 65(1)(a)(iii).  One of the specified provisions that may prevent the grant of a visa is s 501 (referred to in s 65(1)(a)(iii) as 'special power to refuse or cancel').  It identifies circumstances in which the Minister may refuse to grant a visa, as well as circumstances in which the Minister may cancel a visa.  As is explained below, s 501 also includes s 501(3A) which does not confer a special power to refuse or cancel a visa.  Rather, it requires the Minister to cancel a visa in certain circumstances.  If a visa is cancelled under s 501(3A) then representations must be invited 'about revocation of the original decision' to cancel the visa:  s 501CA(3)(b).

11 Acting under provisions in s 501 other than s 501(3A), the Minister may refuse to grant a visa to a person who does not pass 'the character test':  s 501(1).  The Minister may also cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that they pass the character test:  s 501(2).  The Minister may also refuse to grant, or cancel, a visa if the Minister reasonably suspects that the person does not pass the character test and 'the Minister is satisfied that the refusal or cancellation is in the national interest':  s 501(3) (emphasis added).  A decision in the exercise of that power can only be made by the Minister personally:  s 501(4).  It may be made without affording natural justice and, if it is exercised, the Minister must cause notice of the making of any such decision to be laid before Parliament (save for certain exceptional cases):  s 501(4A), s 501(4B) and s 501(5).

12 There is a detailed provision that sets out the circumstances in which a person does not pass the character test:  s 501(6).  One circumstance is where the person has 'a substantial criminal record':  s 501(6)(a).  A person will have such a record if, amongst other things, they have been sentenced to death or to a term of imprisonment for life or 12 months or more (sentence qualification):  s 501(7).  Other circumstances include, the Minister suspects the person is or has been (a) a member or associate of a group or organisation involved in criminal conduct; (b) involved in people smuggling; (c) involved in 'the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern'; (d) convicted of child sex offending; or (e) assessed as a security risk by ASIO.

13 In addition, as has been mentioned, the Minister must cancel a visa if the Minister is satisfied that the person does not pass the character test because they have a substantial criminal record by reason of a sentence qualification and the person is serving a sentence of imprisonment:  s 501(3A).

14 So, the 'special' powers conferred upon the Minister by s 501 to refuse or cancel a visa are the powers conferred by s 501(1), s 501(2) and s 501(3).  Broadly speaking, they may be exercised where a person has been sentenced to a term of imprisonment of 12 months or more (as well as for other character reasons).  There is also a requirement in s 501(3A) that the visa of such persons be cancelled when they are serving a sentence of imprisonment.

15 If a decision in exercise of the power conferred by s 501(1), s 501(2) or s 501(3) is made by a delegate of the Minister (as distinct from the Minister personally) then review may be sought in a specified tribunal.  At the time of the Minister's decision in the present case, the specified tribunal was the Administrative Appeals Tribunal.  Now, the tribunal is its statutory successor, the Administrative Review Tribunal.  Both tribunals were established as independent specialist tribunals with power to review decisions on the merits by re-making the decision under review.

16 Section 501(3A) operates in a different way.  It requires the cancellation of a visa in the specified circumstances.  Notice of the cancellation must be given and an invitation extended to the person concerned to make representations to the Minister about revocation of the original cancellation decision:  s 501CA(3).  If representations are made then the Minister may revoke the visa cancellation (thereby reinstating the visa) if the Minister is satisfied that (a) the person satisfied the character test; or (b) 'that there is another reason why the original decision should be revoked':  s 501CA(4).

17 Where a decision is made by a delegate of the Minister (or by a specified tribunal on review) not to refuse or cancel a visa pursuant to the power conferred by s 501(1) or s 501(2) then the Minister, acting in person, may set aside the decision and instead refuse or cancel the visa if the Minister reasonably suspects that the person does not pass the character test and 'the Minister is satisfied that the refusal or cancellation is in the national interest':  s 501A(3) (emphasis added).  Again, the power can be exercised without affording natural justice (although there is also power to make such a decision after affording natural justice).

18 There is a similar personal power which the Minister may exercise in cases where a delegate has refused or cancelled a visa:  s 501B.  Although the exercise of the power results in the same outcome, it has consequences for the review that may be sought.

19 Then there is the power expressed in s 501BA being the provision that is relevant to the present case.  It too is a power that can be exercised only by the Minister personally.  Again, natural justice does not apply.  However, the discretionary power conferred by s 501BA arises where a visa has been cancelled as required by s 501(3A) and there has been a decision under s 501CA to revoke the cancellation.  That is to say, a delegate of the Minister (or the tribunal on review) has decided on the merits that the person should have a visa.

20 Of significance for present purposes is the fact that s 501A and s 501BA each confer personal powers upon the Minister to reverse a decision made on the merits by the Minister's own delegate or by a tribunal undertaking an independent statutory review.  Each of the provisions requires the Minister to be satisfied that the person does not pass the character test and that the refusal or cancellation is in the national interest.  Section 501B is a similar power to make a personal revocation or cancellation decision in place of such a decision made by a delegate of the Minister if the Minister is satisfied that it is in the national interest to do so.  A consequence of such a decision would be that the person could not seek independent review on the merits of the delegate's decision:  see s 501B(4) and s 501B(5).  All these provisions operate to confer a form of national interest call-in power upon the Minister whereby the Minister can intervene personally to alter the course of the legislative scheme for the consideration of a valid application for a visa (as principally expressed in s 65).

21 As has been noted, the Minister also has the personal power to make a decision of that kind in the national interest as the initial decision, before any other decision on the merits by a delegate of the Minister or the independent tribunal:  s 501(3) and (4).

22 Taken together, the various provisions conferring the personal 'national interest' powers upon the Minister operate as a form of qualification to the scheme for dealing with valid visa applications on the merits.  That scheme includes the conferral of special powers which allow for the refusal of the application or the subsequent cancellation of a visa on character grounds.

Extrinsic materials and legislative history

23 The current statutory provisions conferring personal powers upon the Minister to refuse or cancel a visa by reference to the national interest have their origins in provisions introduced by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth).  It inserted s 180A which was given the heading:  'Special power to refuse or to cancel visa or entry permit'.  It applied to a person if the Minister was satisfied that a person 'is not of good character'.  It conferred a discretionary power upon the Minister to refuse or cancel a visa if:

(b)    the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

(i)    be likely to engage in criminal conduct in Australia; or

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

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

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

24 I observe that the description 'special power' appears to have been retained in s 65(1) which refers to s 501 as a 'special power to refuse or cancel' (although the term is no longer to be found in the current heading for s 501 which takes the form:  'Refusal or cancellation of visa on character grounds').

25 At the same time, s 180B was introduced.  Relevantly, for present purposes, it provided:

If:

(a)    the Minister, acting personally, intends to make a decision under section 55 or 180A in relation to a person; and

(b)    the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

(emphasis added)

26 Section 180B(3) provided for any decision made under that provision to be laid before Parliament.  Tribunal review on the merits of the exercise of the personal power in the national interest was not available.  Consequently, in the case of the Minister's personal power, Parliamentary oversight was proposed rather than review on the merits before an independent tribunal.

27 In the second reading speech on the Bill introducing the relevant amendments, the power to be conferred by the provisions was said to be 'intended to be exercised in a manner consistent with well-accepted Australian values, such that it is aimed at those persons who may regard entry to this country as a means to attack those values':  Commonwealth, Parliamentary Debates, House of Representatives, 17 December 1992, 4119.  The debate on the Bill indicates concern to ensure there was power to refuse entry and to remove people who had engaged in 'significant' or 'serious' criminal offending and those who were promulgating messages of hate, violence and racial tension.

28 In 1994, those two provisions were renumbered s 501 and s 502 respectively by the Migration Legislation Amendment Act 1994 (Cth).

29 Then in 1998, by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth), s 501 was repealed and a new provision substituted and s 501A and s 501B were also introduced.

30 The second reading speech for the 1998 amendment referred to the 'discharge [of the Government's] fundamental responsibility to prevent the entry and stay in Australia of non-citizens who have a criminal background or have criminal associations':  Commonwealth, Parliamentary Debates, Senate, 11 November 1998, 59.  It included the following:

In broad terms, the bill seeks to enhance the Government's ability to deal with non-citizens who are not of good character in three ways:

*    First, decision-making in routine cases will be improved by:

-    requiring applicants to show that they are of good character;

-    deeming that certain levels of criminal sentences will lead to an automatic finding that the non-citizen concerned is not of good character; and

-    allowing the Minister … to give binding directions to decision-makers.

*    Secondly, in exceptional or emergency circumstances, the Minister, acting personally, will be given powers to act decisively on matters of visa refusal, cancellation and the removal of non-citizens.

*    Thirdly, information provided by Australian and international law enforcement agencies will be afforded more effective protection so that such agencies can be confident about passing information to immigration decision-makers.

(emphasis added)

31 Concern was also expressed about tribunal decisions as follows (at 60-1):

Over the past 12 months or so, the AAT has made a number of character decisions that are clearly at odds with community standards and expectations.  The AAT has found a number of non-citizens, who have been convicted of very serious crimes, to be of good character, and has ruled that they should be granted a visa.  This has alarmed the community and I might say the community, when they are aware of these decisions, hold the Government and not the AAT responsible.

It is essential that the Minister, acting personally, have the power to intervene or set aside such decisions in the national interest.  The Minister should, however, continue to be required to table the making of any such decisions in the Parliament.

(emphasis added)

32 As to emergency cases, the second reading speech said (at 61):

From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community.  These people may be threatening violence or some other act of destruction or have a prior history of serious crime.  In these emergency circumstances, the Minister, again acting personally, should have the power to act without notice and have them taken into detention.

… Parliament should be notified of the making of such decisions but the decisions should not be subject to merits review because of their national significance.  The Minister is very accountable for his actions - to the Parliament, his colleagues, and to the people of Australia.

(emphasis added)

33 Section 501BA was introduced into the Migration Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth).  The Explanatory Memorandum for the Bill included the following:

New subsection 501BA(4) of the Migration Act provides that the power under subsection 501BA(2) may only be exercised by the Minister personally.  The intention is that this is a personal power of the Minister to ensure that, despite a decision of a delegate or tribunal to revoke a visa cancellation, the Minister retains the ability in exceptional cases, where it is in the national interest, to remove a person who does not pass the character test from the community.

(emphasis added)

34 It can be seen that over the course of the history of the legislative provisions conferring personal powers upon the Minister to revoke or cancel a visa if the Minister is satisfied that it is in the national interest to do so, there have been repeated references in the explanatory materials to the powers being for exceptional cases (variously expressed as:  'seriousness of the circumstances', 'exceptional or emergency circumstances', the power being intended for those instances where the offending has been 'significant' or 'serious' and the power being described as a 'special power').

35 However, equally, the language used in the various provisions has not been qualified expressly by any such language.

36 Possibly, the emphasis upon exceptionality reflects the fact that the various 'national interest powers' conferred upon the Minister are to be exercised in the context of the whole of the Migration Act noting that the legislation has as its express object the regulation, in the national interest, of the circumstances in which people who are not citizens can enter, and remain in, Australia.  Within that context, a provision that is introduced to confer an additional or special power upon a Minister personally to intervene in the national interest in a way that departs from the consequences that would otherwise flow from those provisions (themselves made in the national interest) may be seen as necessarily contemplating the need for exceptionality of circumstances.  Otherwise, such provisions would confer a form of plenary power for the Minister, in the national interest, to take action that was unlimited by the detailed legislative scheme which is Parliament's expression of what is appropriate in that national interest.  This is an aspect to which I will return after considering the relevant cases.

Relevant High Court decisions as to the national interest

Patterson

37 The authorities concerning the personal powers of the Minister to refuse or cancel a visa if satisfied that such a course is in the national interest commence with Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391.  It concerned the exercise of the power conferred by s 501(3) to cancel a visa.  It was decided before s 501BA had been enacted.  The High Court found that in making the visa cancellation decision in that case, the Parliamentary Secretary who made the decision had fallen into jurisdictional error.  Five members of the High Court found that the error arose because the decision had been informed by an erroneous view that there would be an opportunity to seek a revocation of the decision when that was impossible on the facts.

38 Only Kirby J and Gaudron J considered a separate ground to the effect that the decision had been infected by the absence of a jurisdictional fact, namely a lawfully formed state of satisfaction that cancellation was 'in the national interest'.  As to that point, the reasons of Gaudron J at [78] emphasised that:  'The terms of s 501(3) make it clear that national interest considerations are separate and distinct from the question whether or not a person passes the character test' whilst also observing that the same matters may provide the foundation for the requisite satisfaction as to each of the pre-conditions.  Her Honour gave the following example:

It may be that the conduct which has led to a person failing the character test is such as to threaten the national interest as, for example, if a person fails the character test because his or her conduct is more likely than not to cause discord in the Australian community.

39 Gaudron J also expressed the view that certain crimes, such as those which circumvent immigration laws, 'may be of such a nature as to found a satisfaction that it is in the national interest to cancel' a person's visa:  at [79].  However, where the same conduct is relied upon for both pre-conditions 'there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned':  at [80].

40 As will emerge, Mr Moli's third ground placed considerable reliance upon the reasoning of Gaudron J to support a contention that no aspect of the kind described by her Honour had been identified by the Minister in respect of his conduct.  Further, so it was contended, no reasonable person could have formed any such view.  On Mr Moli's case, the details of the offending and the nature of the harm that may arise by reason of the low but not negligible risk of Mr Moli reoffending, though given the label 'serious' by the Minister, was said to be of insufficient seriousness to be considered a matter of national interest.

41 As to the separate ground, Kirby J reasoned that the pre-condition could not be met 'simply because the Minister subjectively had such satisfaction' and that there needed to be a 'reasonably arguable foundation' for the state of satisfaction formed by the Minister:  at [330].  His Honour then reasoned at [331]:

It would be contrary to principle for the words 'in the national interest' to be given a confined meaning.  However broad may be the jurisdiction conferred by the constitutional writs, they do not permit a court to substitute for the satisfaction of the Minister, provided by the Act of Parliament, the satisfaction of judges who are not accountable to the Parliament or the people in the same way as the Minister.

42 However, Kirby J then concluded at [332] (echoing the language used at the time the provision was introduced to Parliament):

All of the above being said, it is impossible to regard the matters placed before the respondent as sufficient to sustain a reasonable or rational conclusion that the cancellation of the prosecutor's visa was 'in the national interest'.  As such, the power conferred by s 501(3) was not enlivened.  There was no 'emergency'.  Nor could the particular case … be regarded as involving a significant threat to the nation as a whole or the community of the nation.

43 Implicit in that reasoning was a view as to the proper construction of the phrase 'in the national interest'.  Later reasoning by Kirby J in Re Patterson indicates that his Honour formed the view that, in the particular case, the reasoning of the Parliamentary Secretary equated national interest with the presence of a 'substantial criminal record' - being the matter addressed by the other pre-condition to the power in s 501(3) - when something more was required:  see at [335]-[336].

44 It appears that the reasoning of Kirby J afforded a narrower field of operation to the phrase 'in the national interest' than Gaudron J.  Her Honour emphasised the need to identify some aspect of the particular case beyond the fact that the person had failed the character test as the basis for the view that it was in the national interest for the visa to be cancelled.  It needed to be an identified aspect of the circumstances.  However, the examples given were not suggestive of a requirement for some form of emergency or national consequence.  Nor did they indicate a narrow view of what may be encompassed by the national interest.  Kirby J, on the other hand, appeared to view the national interest as encompassing an emergency or matters involving a significant threat to the nation.

Jia Legeng

45 Not long before Re Patterson, the High Court had decided Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 in which two appeals were heard together.  They concerned, amongst other things, the power conferred upon the Minister by s 502 to include a certificate declaring a person to be an excluded person as part of a decision under s 501.  It applies where the Minister acting personally decides that 'because of the seriousness of the circumstances … it is in the national interest that the person be declared to be an excluded person'.  It requires notice of any such decision to be laid before Parliament.

46 In each of the two appeals, the claim made was that there had been actual bias by the Minister.

47 In joint reasons, Gleeson CJ and Gummow J explained that when considering whether there had been bias on the part of the Minister it was important to recognise that the Minister was in a different position to those who occupy judicial or quasi-judicial office.  Their Honours reasoned as follows at [102]:

The Minister is in a different position.  The statutory powers in question have been reposed in a political official, a member of the Executive Government, who not only has general accountability to the electorate and to Parliament, but who, in s 502, is made subject to a specific form of parliamentary accountability.  The power given by s 502 requires the Minister to consider the national interest.  As Brennan J observed in South Australia v O'Shea:  'The public interest in this context is a matter of political responsibility'.  The powers given by ss 501 and 502, as has already been held, enabled the Minister in effect to reverse the practical consequences of decisions of the Tribunal in the cases of the persons involved, even though no new facts or circumstances had arisen; and even though the Minister had been involved in the proceedings before the Tribunal.  As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers.  He might equally well have been asked questions about the cases in Parliament.  The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation.  It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors.  There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise.

(footnote omitted, emphasis added)

48 The language used by Brennan J in South Australia v O'Shea (1987) 163 CLR 378 is referred to in later decisions.  It is considered below.  However, at this point I observe that neither in that case nor in Jia Legeng was the High Court concerned with the extent of matters that may be brought to bear in making a determination as to whether something was 'in the national interest'.  Both decisions were concerned with characterising the nature of the decision that was being made rather than the limits on the authority that arose from a pre-condition that required the Minister to be satisfied that refusal or cancellation of a visa was in the national interest.

49 Finally, it may be noted that in rejecting the bias claims in Jia Legeng, their Honours concluded as follows at [105]:

The Minister was obliged to give genuine consideration to the issues raised by ss 501 and 502, and to bring to bear on those issues a mind that was open to persuasion.  He was not additionally required to avoid conducting himself in such a way as would expose a judge to a charge of apprehended bias.

(emphasis added)

50 In separate reasons, Hayne J observed at [187] that where legislation confers power on a Minister the provision 'may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject'.

Plaintiff S156/2013

51 The meaning of the phrase 'national interest' as used in the Migration Act was considered in a different context in Plaintiff S156/2013.  A number of the questions raised in that case concerned the validity of laws that provided for regional processing (outside Australia) of certain applicants for protection visas.  In joint reasons, six members of the High Court concluded that the laws were valid.  There was also an issue as to the proper construction of s 198AB.  It provided for the Minister to designate, by legislative instrument, that a country is a regional processing country.  It also provided expressly in s 198AB(2) that:

The only condition for the exercise of the power … is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country.

(emphasis added)

There were certain matters concerning whether or not assurances as to specified matters had been given by the country to which the Minister was required to have regard to in considering the national interest:  s 198AB(3)(a).  Otherwise, the Minister 'may have regard to any other matter which, in the opinion of the Minister, relates to the national interest':  s 198AB(3)(b).

52 It can be seen that the formulation of the requirement as to the national interest was expressed in materially different terms compared to the provision in the present case which requires, as a pre-condition to a power to refuse to approve or cancel a visa, the formation of a state of satisfaction on the part of the Minister that such action 'is in the national interest'.

53 The joint reasons identified (at [40]) 'the formation by the Minister of an opinion that it is in the national interest' that a country be designated as a regional processing country, as the only mandatory condition to the exercise of the power to so designate a country.  Their Honours then said:

What is in the national interest is largely a political question, as s 198AA(c) recognises.  The only matter to which the Minister is obliged to have regard, in considering the national interest, is whether or not the country to be designated has given Australia any assurances as set out in s 198AB(3)(a).  There is no issue in this case that such assurances were in fact given.

54 The reference to s 198AA(c) is to an express statement by the Parliament of the reasons for the provisions as to regional processing.  It included the statement that 'Parliament considers that … it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries':  Plaintiff S156/2013 at [10].

Plaintiff S297/2013

55 A different issue arose in Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; (2015) 255 CLR 231 at [3].  It concerned the meaning and effect of a provision in the regulations made under the Migration Act which made it a criterion for the grant of a protection visa that the Minister be satisfied that the grant of the visa was 'in the national interest'.  As has been mentioned, the Migration Act provides for the Minister to consider a visa application and to grant the visa if satisfied as to certain matters.  One of those matters is that the criteria specified in the regulations have been satisfied.

56 The Minister had refused the grant of a protection visa on the basis that he was not satisfied that the grant of the visa was in the national interest.  It was argued for the visa applicant that the national interest considerations relied upon in deciding to refuse the application were outside the scope of matters that could be considered because it could not include matters dealt with exclusively elsewhere in the Migration Act.  Six members of the High Court decided that the criterion in the regulations did not authorise a decision by reference only to the visa applicant being an unauthorised maritime arrival because it was the Migration Act itself that prescribed the consequences of a person being an unauthorised maritime arrival.  This was because the Migration Act provided expressly for the Minister to be able to lift the statutory bar upon such persons being able to make a valid application for a protection visa specified in a determination by the Minister.

57 In reaching that conclusion, their Honours observed at [18]-[19]:

In Hot Holdings Pty Ltd v Creasy three members of this Court noted that '[i]t has been said that "the whole object" of a statutory provision placing a power into the hands of the Minister "is that he may exercise it according to government policy"'.  And where, as here, the criterion to be applied by the Minister requires the Minister to be satisfied that the grant of the visa is 'in the national interest', the decision-maker 'may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister's continuance in office'.

Some of those considerations may admit of the formulation of rules of more or less general application which can be understood as expressing some aspect of the Minister's understanding of what may or may not be 'in the national interest'.  … But, … those views cannot proceed from, or be based in, an error of law.

(footnotes referring to paras in Hot Holdings omitted)

58 Of course, any such policy if it were to form the basis for forming a view that the grant of a visa was not in the national interest would still need to conform with other requirements for a lawful exercise of power (as to which see the reference to Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 below).  The significance of the quoted reasoning above was to explain that, despite the ability to make and apply policy in that way pursuant to a provision that referred to the national interest, it did not extend to permitting the Minister to make and apply a policy that was contrary to the express provisions in the Migration Act concerning protection visas.  It was found that the Minister had applied a policy to the effect that it was not in the national interest to grant a protection visa to any applicant who was an unauthorised maritime arrival.  That was found to be contrary to the Migration Act because it specified exhaustively the visa consequences that attached to being an unauthorised maritime arrival:  see reasoning at [21].

59 It was the inconsistency between the policy and the statutory provisions concerning unauthorised maritime arrivals that was determinative of the result in Plaintiff S297/2013.  The decision did not consider the limits of what may be the subject of any policy that may be justified as being 'in the national interest'.

60 However, the reasoning in Plaintiff S297/2013 assumed significance in ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 278 CLR 75 a decision relied upon by Mr Moli which is the subject of separate consideration below.

Graham

61 The next significant authority is Graham where there was a challenge to the validity of s 501(3).  The decision also dealt with the validity of a law which prevented the Minister from being required to divulge or communicate information to a court when exercising the constitutionally protected jurisdiction to review the exercise of powers by the Minister.  The High Court upheld the validity of s 501(3).  In doing so, the plurality (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) identified the power to cancel a visa conferred by s 501(3) as arising 'if both of two conditions are satisfied':  at [56].  They also said that the required state of satisfaction as to each condition 'must each be formed by the Minister reasonably and on a correct understanding of the law':  at [57].  As to the national interest, their Honours said:

The concept of the national interest, the Minister's satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded.  And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister 'according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself'.

(emphasis added)

62 These possibilities were of significance because the foundation for the formation by the Minister of the required state of satisfaction as to the national interest was material that the Minister said the legislation prevented him from disclosing.

63 As to the result, their Honours reasoned as follows (at [68]):

The error was not as to the question to be asked by the Minister in making the decision but as to an important attribute of the decision to be made: whether or not the decision would be shielded from review by a court in so far as it was based on the relevant information.  As in Re Patterson; Ex parte Taylor, where the error of the Minister was a failure to appreciate that there would be no opportunity to seek revocation of the decision, '[t]he result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3)'.

(footnote omitted)

64 The decision shows the extent of the review for jurisdictional error that may be available in such cases, notwithstanding the acceptance in earlier cases that a decision as to whether to refuse or cancel a visa is in the national interest is largely a political question.  It is not, in effect, a discretion of a kind that would be outside the reach of constitutional writs.  Nor is it a matter that turns upon subjective ministerial views as to the national interest.  Rather, there is content to the concept of national interest such that any decision must be informed by a correct understanding of its bounds and must be legally reasonable.

65 The reasoning in Graham also confirms that the discretionary power to refuse or cancel a visa conferred by s 501(3) is only enlivened on fulfilment of the statutory conditions.  That is to say, the formation by the Minister of the state of satisfaction that the refusal or cancellation of the visa is in the national interest is a pre-condition (or jurisdictional fact) which must be met before the Minister has authority to exercise the power to cancel a visa issued on the basis of a decision by the Tribunal:  as to which, see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [28]; and Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [57]-[59] (French CJ); see also Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340 at [47] (Kiefel, Bell, Gageler, Keane and Gordon JJ).

ENT19

66 The issues that arose for determination in ENT19 included the proper construction of a similar regulation to that which had been under consideration in Plaintiff S297/2013.  In ENT19 an application for a form of protection visa known colloquially as a SHEV had been refused on the basis of a failure to meet a criterion expressed in the regulations that 'the Minister is satisfied that the grant of the visa is in the national interest'.  The basis for that failure in the circumstances there under consideration was the visa applicant's conviction of the offence of people smuggling.

67 The question of construction was whether the regulation authorised the Minister to refuse the SHEV on the basis of a view that it was not in the national interest for a convicted people smuggler to be seen to get the benefit of a protection visa.  The case for the visa applicant raised an issue as to the application of the reasoning in Plaintiff S297/2013 concerning inconsistency with express provisions in the Migration Act.  The High Court split four to three.

68 In the course of their reasons, the majority (Gordon, Edelman, Steward and Gleeson JJ) referred (at [67]) to the passage in the second reading speech for the Bill that repealed and substituted s 501 in 1998 where the personal powers given to the Minister were explained as powers to act 'decisively' in 'exceptional or emergency circumstances' that would not be subject to tribunal review because of their 'national significance'.  The majority reasons confirmed the view that the requirement for the Minister to be satisfied that the refusal or cancellation of the visa was in the national interest was a pre-condition to the conferral of the discretionary power:  at [68].  As to the ultimate exercise of the discretion, their Honours stated at [69]:

The provisions provide no express criteria for exercise of the discretion.  It has been said that 'the protection of the Australian community lies at the heart' of the discretionary powers under s 501.  Ultimately, the exercise of the discretion in s 501(1) or (3) will depend on the facts and circumstances of the case, having regard to any mandatory and permissible considerations arising from a proper construction of those provisions'.

(footnote omitted)

69 Their Honours then concluded:

… where a person fails the character test because, for example, the person was or was suspected of being a people smuggler, the discretions under s 501(1) and (3) will encompass any and all considerations that may support the refusal of a visa to a person by reason of people smuggling.

70 However, those observations concern the exercise of the discretionary power to refuse the visa.  They do not concern what is encompassed by the national interest when it comes to forming the state of satisfaction for the purposes of the pre-condition in s 501(3).

71 The advice given to the Minister concerning the criterion in the regulations was that:  'The national interest criterion is usually only considered in exceptional circumstances by the Minister, when the other criteria for the visa, including character and security requirements, have been met':  at [72].  The advice as to the exercise of power under s 501 was that it was 'not viable':  at [75].  So, it was evident that it had been the criterion in the regulations that was the basis for the decision.

72 In the High Court, it was conceded by the Minister that the visa applicant met all requirements for the SHEV other than the national interest criterion in the regulations:  at [83].

73 For the majority, it was significant that the regulation was unlike other provisions within the Migration Act itself which reposed broad discretionary powers for the grant, refusal or cancellation of visas based on the national interest in the Minister personally:  at [94].  As to the nature of those personal powers, their Honours quoted at [93] the statement in Plaintiff S156/2013 that '[w]hat is in the national interest is largely a political question', footnoting other cases as instances where similar statements were made and also referring to the statement by Brennan J in South Australia v O'Shea as quoted by Gleeson CJ and Gummow J in Jia Legeng that '[t]he public interest in this context is a matter of political responsibility'.

74 I have already referred to Jia Legeng and, briefly, to South Australia v O'Shea.  The latter case concerned the parole system.  It contemplated a process before a Parole Board with a report and recommendation being provided by the Board to the Governor.  The issue for determination concerned whether the Governor was required to afford procedural fairness to the prisoner, Mr O'Shea, in the consideration of whether to grant parole by allowing him to make representations to the Governor (noting that the Governor was bound to act with the advice and consent of the Executive Council).

75 The reasoning of Brennan J in South Australia v O'Shea rested upon an analysis of the authorities concerned with legislative schemes whereby the facts relevant to a matter were ascertained and evaluated by a board in order to report and make recommendations to a decision-maker.  On those authorities, there was no obligation to afford a further opportunity to be heard before the decision-maker unless there were further facts to be determined.  If the decision to be made involved the application of matters of policy to the facts as found by the board, there was no requirement for a further opportunity to be heard.

76 An argument was advanced to the effect that political considerations might be taken into account by members of Cabinet in advising the Governor.  It appears that such a possibility was advanced as a reason why there should be an opportunity to be heard before the Governor.  As to that argument, Brennan J reasoned as follows at 410-411:

Whether or not political considerations may lead to the making of unjust decisions, the Act reposes the power in the Governor acting on the advice of the Executive Council, i.e., in a political branch of government.  The court's concern is not with the merits of a decision:  Parliament has entrusted that question to the Executive Government.  The court's concern is solely with the legal regularity of the impugned exercise of the power.  …

The risk that an unjust decision might be made by the Governor on the advice of Cabinet furnishes no ground for the court to impose on the Governor, the Cabinet or a Minister a requirement to give an offender who has already been heard by the Board a further opportunity to be heard before a decision on his release is made.

Under the Act, an offender does not have to be heard by the Minister as to the level of community risk which should be accepted consistently with the public interest in releasing persons who have been declared incapable of controlling their sexual instincts.  The public interest in this context is a matter of political responsibility … and the Minister is not bound to hear an individual before formulating or applying a general policy or exercising a discretion in the particular case by reference to the interests of the general public, even when the decision affects the individual's interests.  When we reach the area of ministerial policy giving effect to the general public interest, we enter the political field.  In that field a Minister or a Cabinet may determine general policy or the interests of the general public free of procedural constraints; he is or they are confined only by the limits otherwise expressed or implied by statute.

(emphasis added)

77 It can be seen that the reference to political responsibility was to explain why there was no reason to afford an opportunity to Mr O'Shea to be heard before the Governor.  It concerned the nature of the decision to be made by the Governor not the extent of the authority conferred upon the Governor.  In that context, the reasoning emphasised the role of the Minister (and Cabinet) when giving effect to the general public interest in making the decision.

78 In any event, the point being made by the majority in ENT19 in referring to authorities about the personal powers of the Minister was to support reasoning distinguishing powers of that kind from the provision in the regulations which specified a criterion that had to be affirmatively satisfied by an applicant for a SHEV:  at [93]-[94].  A very broad proposition advanced for the Minister to the effect that the regulation entrusted to the Minister (or delegate) the authority to administer a general policy that they personally considered to be in the national interest unconstrained by the policy set in the Migration Act to regulate the grant or refusal of a visa was rejected:  at [96].  As to what was required by the regulation, their Honours said (at [98]):

That is not to say that [the regulation] has no work to do.  The concept of 'the national interest' as used in the Act is undoubtedly broad and the possible considerations it may encompass cannot be catalogued.

79 I do not understand that language to suggest, contrary to Graham, that the concept is unbounded.  Rather, as is explained further below, a feature of the national interest is that its content depends upon the circumstances presented to Parliament and the Executive from time to time and views genuinely formed by those entrusted with the responsibility to govern.  Hence, its description as giving rise to a political question.  However, even allowing for its breadth, it is not a conceptual amulet to be invoked as a form of protection for any decision that may be conjured.  Nor is it an incantation which, if uttered, confers authority.  The extent of that which, at any point in time, may reasonably be said to be in the national interest has its limits.  To use it in legislation as a pre-condition to the conferral of a discretionary power must contemplate that it will operate to impose a limit upon that authority.  It follows that in order to justify any purported exercise of the discretionary power, that which is said to be in the national interest must be evident in the sense that it is obvious or made explicit.

80 However, it can be seen that the majority reasoning is not directed towards the type of question addressed by each of Gaudron J and Kirby J in Re Patterson as to the bounds of what is encompassed by 'the national interest' when that term is used in the various provisions of the Migration Act.

81 Returning to the majority reasoning in ENT19, giving effect to the reasoning in Plaintiff S297/2013, their Honours read down the regulation to reach a conclusion (at [104]-[105]) to the effect that matters that would inform the assessment required by the Migration Act could not be 'resurrected' for the purposes of considering whether the criterion in the regulation had been met.  Accordingly, matters that were brought to bear under the provisions in the Migration Act, specifically 'the reason why the person failed the character test that would fall under the umbrella of a general concept of "the national interest"', could not alone form the additional basis or other reason sufficient for the Minister to conclude that the grant of the visa was not in the national interest under the regulation.

82 The minority (Kiefel CJ, Gageler and Jagot JJ) began with the express overall object stated in s 4 of the Migration Act, stating at [11]:

In the statement of that overall statutory object, as elsewhere in the Act, 'the national interest' indicates a considered response to what is 'largely a political question'.  The expression has exactly the same meaning where used in the Regulations.

(footnotes omitted)

83 Their Honours summarised Plaintiff S297/2013 as having recognised a limitation to the effect that the 'political question' posed by a criterion requiring the Minister to be satisfied that the grant of a visa was in the national interest 'cannot be answered by the decision-maker in a manner inconsistent with any affirmative provision of the Act', a proposition described as the consistency limitation:  at [14]-[19].  It was expressed in the following terms at [18]:

[A decision-maker applying a criterion that the Minister is to be satisfied that the grant of a visa is in the national interest] cannot choose to adopt and act on a view of the national interest that would alter, impair or detract from any positive provision that is made by the Act itself in pursuit of the national interest.

84 Applying that analysis, the minority concluded that the relevant regulation was invalid:  at [53].

High Court authorities as to 'public interest'

85 There is a separate line of authorities concerned with discretionary powers that are to be exercised in 'the public interest'.  In The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 six members of the High Court said at [42]:

It is well established that, when used in a statute, the expression 'public interest' imports a discretionary value judgment to be made by reference to undefined factual matters.  As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is 'neither arbitrary nor completely unlimited' but is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view'.

(footnotes omitted)

86 The views of Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 were applied by the plurality in O'Sullivan v Farrer (1989) 168 CLR 210 at 216.

Full Court authorities

87 In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 at [86] it was held that:  'There may be circumstances in which the seriousness of a person's criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest'.  The Full Court went on to consider the reasoning in Re Patterson before concluding at [89] that:  'The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained "reasonably"' (referring to reasoning of Gummow and Hayne JJ, Gleeson CJ agreeing in Re Patterson).  In doing so, their Honours expressed the view, in effect, that the statements by Kirby J in Re Patterson had set the bar higher than the words of the Migration Act.  The views of Gaudron J were explained as being supportive of the Full Court's view:  at [86]-[87].

88 In Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156, Derrington and Hespe JJ summarised the current state of the law concerning s 501BA in the following terms at [42]-[44]:

For the purposes of the following discussion, it is appropriate to keep in mind the following accepted propositions in relation to the uniqueness of the power in s 501BA(2).

For the purposes of s 501BA(2)(b), it is well accepted that the concept of the 'national interest' is broad and evaluative:  Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, 30 [57]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 390 [156] - [157] (Carrascalao):  and, whilst the decisional freedom is not unbounded, the question is largely a political one:  see Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, 46 [40]; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231, 242 [18].

The Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest:  Vargas v Minister for Home Affairs (2021) 286 FCR 387, 403 [61] (Vargas); Gubbay v Minister for Home Affairs [2020] FCA 1417 [56]; Candemir v Minister for Home Affairs (2019) 268 FCR 1, 5 - 6 [20] - [21], 7 [24]:  and it is therefore a matter for the Minister to determine:  Carrascalao at 390 - 391 [158].

89 In Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417, Bromberg J summarised various authorities concerning powers in the Migration Act which refer to the national interest in circumscribing the extent of the power to cancel or refuse a visa.  His Honour said (at [43]-[44]):

The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister:  Mandafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 at [89] (French, O’Loughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [12] and [32] (Katzman J); Maurangi v The Honourable Chris Bowen MP, Minister for Immigration and Citizenship [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gumow J); Re Paterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

The exercise calls for a broad evaluative judgment.  It calls for the Minister's satisfaction in relation to a power that may only be exercised personally by the Minister:  s 501A(5).  Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope.  All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

90 The reasoning of Bromberg J (as subsequently quoted in Anaki v Minister for Immigration and Border Protection [2018] FCA 77 (Burley J)) was approved in Candemir v Minister for Home Affairs [2019] FCAFC 33; (2019) 268 FCR 1 at [20]-[21] (Collier, Robertson and Thawley JJ).

91 The Full Court authorities were recently reviewed by Hespe J in Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1456 at [23]-[31].

The competing cases as to the proper construction of s 501BA

92 Mr Moli submitted that in forming the required state of satisfaction for the purposes of the pre-condition that the cancellation of Mr Moli's visa was in the national interest, the Minister was required to act within the bounds of reasonableness and rationality.  Submissions were also advanced to the effect that the Minister needed to be satisfied that there was some form of national significance to the Minister's decision and that there was some 'exceptional type of reason' for the Minister to intervene (it being contended that the matters referred to by the Minister were an insufficient foundation to bring the decision within the scope of what was meant by the national interest).

93 The Minister relied upon the formulation of the required approach articulated in Palmer (quoted above).  The Minister accepted that there was a need for 'something more' than the failure by Mr Moli to pass the character test but submitted that in a case where no additional factual matters were relied upon beyond those which established that Mr Moli did not pass the character test, it was for the Minister to consider whether those facts were sufficient to also ground a conclusion that the cancellation of Mr Moli's visa was in the national interest, being largely a political matter.  The Minister submitted that there was no requirement for something exceptional or of national significance.

94 The Minister also emphasised that it was not for this Court to substitute its own consideration of what may be in the national interest or indeed its own view as to what is embraced by that concept.  On the Minister's case, the only limit was one of reasonableness in the formulation of what may be considered by the Minister to be in the national interest.

95 Necessarily implicit in the Minister's submission was a view that 'the national interest' encompasses all that was reasonably determined by the Minister to be in the national interest.

The proper construction of s 501BA

96 The following matters concerning s 501BA are established by the authorities:

(1)    the provision confers a discretionary power upon the Minister personally;

(2)    the matters stated in s 501BA(2) are pre-conditions that must be met before the power arises;

(3)    one pre-condition is that the Minister is satisfied that the cancellation of the person's visa is in the national interest;

(4)    the required state of satisfaction must be formed within the bounds of reasonableness and rationality;

(5)    the required state of satisfaction must be formed on the basis of a correct understanding of the law (particularly, a correct understanding of what is required by the pre-condition);

(6)    the formation of the required state of satisfaction involves the making of a broad evaluative judgment;

(7)    what is in the national interest for the purposes of the provision is largely a political question; and

(8)    the concept of the national interest is undoubtedly broad but is not unbounded.

97 In addition, s 501BA operates within the legislative scheme as a form of national interest call-in power by which the Minister may set aside a decision that has been made pursuant to that scheme (being a decision to the effect that a visa cancellation be revoked).  Exercise of the power results in the setting aside of a favourable decision for the person concerned and its replacement with an adverse decision.

98 As the High Court has explained, identification of that which is in the national interest is a matter of political responsibility.

99 Put in Australian constitutional terms the national interest encompasses the full extent of that which is considered by the Executive Council of the Commonwealth comprising Ministers of State and by those Ministers acting in due discharge of the authority they hold as Ministers in the administration of their governmental departments to be in the national interest.  By due discharge of their authority, I mean to indicate that the national interest would not encompass matters identified corruptly or for some improper purpose or otherwise in breach of the oath taken by Ministers.  No doubt there are also matters which might be said to be outside that which is the national interest because they lack the requisite degree of importance or significance to form part of the national interest.  This is not to say that they are outside the bounds of reasonableness.  Rather, it is to say that even allowing for the fact that the national interest is a term which means that which is determined by those entrusted with the political authority to determine what is in the national interest there will be some matters which are outside the boundary of that which might be said to be in the national interest.

100 Consequently, what is in the national interest for the purposes of the Migration Act (particularly s 501BA) will depend upon views formed by the Minister in discharging their functions as a Minister responsible for the administration of the Migration Act.  Hence, its description in Plaintiff S156/2013 as being 'largely a political question'.  It follows that actions that may be in the national interest are not fixed.  Nor may they be ascertained by reference to some rubric or standard or objective expression as to what they may comprise.  They will change with the legitimately held views of those entrusted with governmental authority from time to time.

101 Nevertheless, the statutory language used in s 501BA (and other provisions) still requires the Minister to be satisfied that the cancellation is 'in' the national interest and there is work to be done by that required connection between the cancellation and the national interest in any case.  Consequently, for the following reasons, it is not possible to have a kind of amorphous view that a specific act (the cancellation of a visa) in a specific instance (the case of Mr Moli) is in the national interest without any specific conception as to why that may be so.

102 Firstly, as the authorities make clear, the formation of the required state of satisfaction that cancellation is in the national interest is a pre-condition to the Minister having the discretionary power to cancel a visa.

103 Secondly, in considering whether the pre-condition has been met, it is important to distinguish the requirement for the Minister to be satisfied (on the one hand) from the subject matter about which the Minister is to be satisfied (on the other).  For present purposes, the relevant matter about which the Minister must be reasonably satisfied is that cancellation of the visa, that is the visa held by the person concerned, is in the national interest.  To form that state of satisfaction, the Minister must have in mind some aspect of the national interest that may pertain to the circumstances of the person to whom the visa has been issued.

104 Thirdly, the use of the preposition 'in' as a grammatical connection between the visa cancellation and the national interest is significant.  It specifies a form of direct relationship between the cancellation of the visa and the national interest.  It is the act of cancellation itself that must be in the national interest.  Consequently, the Minister must be satisfied that some identified aspect of the national interest will be served, advanced or promoted by the cancellation of the person's visa.

105 Therefore, in order to form a state of satisfaction as to whether the cancellation of the visa of a particular person would be in the national interest, the Minister must be able to formulate the aspect of the national interest that will be served, promoted or advanced by the cancellation and why.  If the Minister acts without any such formulation or purports to cancel a visa in circumstances where no reasonable person could be satisfied that the cancellation would serve, promote or advance the formulated aspect of the national interest, or makes a decision in circumstances where it may be adjudged to be legally unreasonable in the sense that no reasonable Minister might justify the cancellation by reference to any such formulation, then the pre-condition will not be met and the power to cancel will not arise.

106 The remaining issue, which is at the heart of the case advanced for Mr Moli, is whether there needs to be something exceptional about that which is said to be 'in the national interest'.  I am not persuaded that the words used bear a construction that the matter of national interest must itself be exceptional in some way.  The statutory language has no such express qualification.  As I have explained, the boundaries of what may be in the national interest at any point in time are a function of the due discharge of ministerial responsibilities from time to time and hence are broadly political.  Within the ambit of that broad field, the statutory language admits no qualification which requires the Minister to be satisfied that the cancellation will be in a category of national interest that is exceptional or especially important or has some form of national significance (whatever those terms may mean if indeed they had been used as qualifications to the expression 'in the national interest').

107 However, in my view, it remains significant that s 501BA is a discretionary power that resides within a legislative scheme.  It is a scheme that includes the other national interest call-in powers in s 501A and s 501B that are pre-conditioned in the same way.  As has been explained, the scheme provides for decisions to be made on valid visa applications on the merits by a delegate (and, on review, by the Tribunal).  In a case where s 501(3A) applies and representations are made to revoke the visa cancellation, in cases where the character test is not passed, the Minister must consider whether there is 'another reason' for the cancellation to be revoked.  It is a decision that may be made by a delegate (and, on review, by the Tribunal).

108 The Minister also has power to publish directions as to the exercise of powers under the Migration Act, including what might be referred to as the character powers, which directions must be complied with by the decision-maker exercising the power:  s 499.  Significantly, within that scheme, s 65 provides for a binary decision by the Minister to grant or refuse a valid application for a visa.  Further, within s 65 there is no reference to s 501A, s 501B or s 501BA.  Of some contextual importance for present purposes, is the fact that s 65 provides that if the Minister is satisfied that the grant of the visa 'is not prevented by section … 501 (special power to refuse or cancel)' and various other criteria are met then the Minister is to grant the visa.  The same pertains where the Tribunal considers a valid application for a visa, standing in the shoes of the Minister.

109 Therefore, each of the decisions the subject of the discretionary powers conferred by s 501A, s 501B and s 501BA is a decision made on the merits where the particular circumstances of the person may be brought to account with the consequence that a person may be granted a visa or allowed to continue to hold a visa even though they do not pass the character test.  Also, as has been explained, the legislative scheme by which such decisions may be made (and reviewed) on the merits is itself said to have been enacted in the national interest.

110 Considered in that context, the legislative scheme indicates a construction of s 501BA to the effect that the formation of the state of satisfaction as to whether a visa cancellation is 'in the national interest' for the purposes of the pre-condition to the discretionary power to cancel a visa, requires the identification of some aspect of the national interest that means the ordinary merits adjudication process should not determine whether the person has a visa.  Which is not to say that there needs to be some fault or correction required in the decision of the delegate or the Tribunal (as the case may be).  Rather, it is to say that the aspect of the national interest that is the foundation for the Minister's satisfaction 'in the national interest' that a decision to revoke a visa cancellation should be set aside must itself be a reason why the decision to revoke the cancellation made pursuant to the legislative scheme (itself enacted in the national interest) should be reversed.  In that limited sense, there is a requirement for a form of exceptionality.

111 However, it is not a requirement that would mean, as the submissions for Mr Moli tended to suggest, that the power conferred by s 501BA could only be exercised in cases where the national interest being served, advanced or promoted by the cancellation was itself in some special category of exceptionality.  Rather, what is required is the identification of some aspect of the national interest that means that the decision made in accordance with a legislative scheme that is itself enacted in the national interest is to be reversed.

112 With those matters in mind, I will now address the grounds of review in the order in which they were advanced orally.

Ground 3:  The national interest

113 In the present case, as has been explained, the Minister acted upon a very broad expression of the national interest that was brought to bear in making the decision that Mr Moli's visa should be cancelled, namely:  'the protection of the community and the expectations of the Australian community'. It has the potential to capture a very wide range of cases.

114 As to that formulation, it will be recalled that the majority in ENT19 at [69] referred to 'the protection of the Australian community' as being at the heart of 'the discretionary powers under s 501'.  Any decision made whether to grant a visa will involve a consideration as to whether it is prevented by the special power to refuse or cancel conferred by s 501.  Likewise, s 501(3A) (which operates subject to the requirement to follow s 501CA) is a means by which to afford that protection to the Australian community.  That is to say, the scheme of the Migration Act provides for the protection of the Australian community by the inclusion of the discretionary powers in s 501 and the cancellation required by s 501(3A), subject to observance of s 501CA.

115 It is not the case that s 501BA is itself the only means by which the Migration Act ensures the protection of the Australian community.

116 Undoubtedly, the protection of the Australian community and (conformance with) the expectations of the Australian community are broad expressions of aspects of the national interest:  Luong at [27]-[28].  They will provide the foundation upon which there will be an identified matter of national interest in a very considerable number of cases. Consequently, they are formulations of the national interest which have the potential to create a very wide field of instances in which the power conferred by s 501BA may arise. Nevertheless, for reasons I have given, they are formulations that are contemplated by the authorities.

117 However, as I have explained, the mere identification of a matter of 'national interest' is not enough when it comes to the formation of the state of satisfaction required as a pre-condition to the discretionary power to cancel the non-adverse decision made by the Tribunal to revoke the cancellation of Mr Moli's visa.  What must be formed is an affirmative state of satisfaction that the cancellation of Mr Moli's visa is 'in' the national interest, even though there has been a decision on the merits in accordance with the legislative scheme that the cancellation of his visa should be revoked.

118 As to risk to the community, the Minister concluded (para 51):

On balance, I consider there to be a low, but not negligible likelihood that Mr MOLI will reoffend and note that should he engage in similar conduct again, it would be likely to result in serious psychological, physical harm and/or financial harm to members of the community.

119 The Minister agreed with a finding that had been made by the Tribunal that 'given the significant impact of drug trafficking on the Australian community … even a low risk of reoffending is unacceptable'.

120 As to community expectations, the Minister found (para 53) that the community expects non-citizens to obey Australian laws while in Australia and where there is 'serious conduct in breach of this expectation' the community expects the Government not to allow such a non-citizen to remain in Australia.  The conclusion that had been reached as to the seriousness of Mr Moli's offending was as follows (para 29):

I find that given Mr MOLI's criminal history, the frequency and cumulative effect of his offending, and the seriousness of his most recent offending, Mr MOLI's offending is serious.

121 Plainly, the Minister's view of the national interest is to the effect that involvement in dealing in illicit drugs is serious and is conduct of a kind that breaches a norm of behaviour expected of non-citizens who are in Australia on a visa.  Further, in the Minister's view, there is a national interest in preventing the Australian community from being exposed to even a low risk of the consequent harm that would arise from reoffending of that kind by non-citizens.  In the reasons of the Minister the consequences of that view for the circumstances of Mr Moli have been considered in some detail.

122 Further, the decision was made by reference to an identified matter of national interest and did not take effect, in substance, as a mere reversal on the merits of the Tribunal's decision. Therefore, it was not an exercise of the power in circumstances that might be said to be inconsistent with the scheme of merits review provided for by the Migration Act.

123 Accordingly, the Minister's reasons expose his satisfaction that it was in the national interest for Mr Moli's visa to be cancelled.  It has not been demonstrated that the Minister acted upon an incorrect understanding of what was required by s 501BA.

124 Having regard to the standard that must be met to establish unreasonableness (see Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26]) and the absence of any demonstrated illogicality in the Minister's reasoning, I am not persuaded that the ground has been made out.  Regard to the parole assessment (referred to below) does not cause me to reach a different view.

125 Finally, I observe that the oral submissions for Mr Moli appeared to include a contention that unless there was some requirement for exceptionality as to the matter of national interest then s 501BA conferred a form of unlimited power to cancel the visa.  Implicitly, it appeared to be suggested that a law of that kind could not be legislated.  Whether a law that conferred a power to cancel a visa on the pre-condition that the Minister was satisfied that an exercise of the power was in the national interest exceeded the limits of legislative power because the breadth of the concept of national interest allowed any instance to meet the pre-condition would be a constitutional question:  see Graham at [39]-[49].  No submission of that kind was advanced.  It would need to confront the conclusion reached in Graham that the concept of the national interest was not unbounded.

Ground 2:  Consideration of sentencing remarks

126 Significantly, the power conferred by s 501BA may be exercised without affording natural justice, relevantly for present purposes without affording an opportunity to the person concerned to make representations or submissions.  The submissions advanced for Mr Moli in support of ground 2 were premised upon an obligation on the part of the Minister in forming the required state of satisfaction to give proper, genuine and realistic consideration to the materials that were before the Minister (and a failure to do so was jurisdictional error).  However, since the decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 doubt must arise as to whether that is the correct approach.  In that case there was a requirement for the Minister to invite representations which invitation must have been taken up before the relevant decision was required to be made, the conclusion reached was that provided the Minister reads, identifies, understands and evaluates the substantial and clearly expressed claims in the representations, it is a matter for the Minister as to what, if any, weight is given to those claims and whether a matter is brought to bear in making the decision:  ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [6]-[9], see also Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160; (2024) 306 FCR 372 at [18]-[23].  Reasoning by reference to that approach to s 501CA(4), it is difficult to see why there would be an obligation upon the Minister in forming the required state of satisfaction for the purposes of the pre-condition in s 501BA(2)(b) that the Minister must give proper, genuine and realistic consideration to each aspect of the materials before the Minister.

127 Nevertheless, it is Mr Moli's contention that in forming the required state of satisfaction, the Minister failed to give proper, genuine or realistic consideration to certain remarks by the sentencing judge.  Assuming favourably to Mr Moli that there was an obligation upon the Minister to undertake consideration of that kind, for the following reasons the claim has not been made out.

128 The submission advanced was to the effect that the Minister misinterpreted the sentencing remarks.  The misinterpretation was said to be evident in the following sentences from the Minister's reasons (at paras 21, 24):

Mr MOLI was 'knowingly involved in the proposed transaction'.  His Honour recognised that an aggravating feature of Mr MOLi's offending was the amount of the drug involved and that the offending was 'serious'.

…

In addition, I consider that the sentence imposed by [the sentencing judge] is a further indication of the seriousness of Mr MOLI's offending.  A lengthy term of imprisonment was imposed.  Outcomes involving incarceration of the offender are the last resort in the sentencing hierarchy and I consider that the custodial sentence in this case further reflects the serious nature of the relevant offending.

129 In the sentencing remarks, the sentencing judge referred to Mr Moli's involvement in drugs (aside from the offending for which he was being sentenced) as being 'at a lower level'.  After addressing his involvement in the relevant offending, his Honour then said:  'The matter is nevertheless a serious one'.  It was also said that the sentencing remarks were to the effect that personal deterrence was not a factor.

130 I am not persuaded that these matters establish any misunderstanding on the part of the Minister.  In the result the complaint advanced orally was to the effect that the Minister used the sentencing judge's terminology of serious to reach a conclusion that Mr Moli's conduct was sufficiently serious for the purposes of reaching the required state of satisfaction as to the pre-condition to s 501BA, when a higher degree of seriousness was required for that purpose.  This was really to advance in a different way the submissions as to ground 3.

131 I am not persuaded that there is any merit in ground 2.

Ground 1:  Findings in the parole assessment

132 Mr Moli claimed that the Minister acted unreasonably, irrationally or illogically in failing to consider findings in the parole assessment before the Minister to the effect that Mr Moli was not considered an imminent risk to the community and did not have regard to, or follow, the Minister's own finding that parole would not have been granted unless it was determined that Mr Moli did not present an unreasonable risk of harm to the Australian community.

133 As to parole, the Minister reasoned (para 42):

I note that Mr MOLI was granted parole on 14 October 2022 and has been in the community since 3 April 2023.  I accept that parole would not have been granted unless it was determined that Mr MOLI did not present an unreasonable risk of harm to the Australian community.  Indeed it is stated in the parole order of 12 September 2022 that Mr MOLI was 'assessed as a low risk of reoffending'.

134 Earlier, the Minister had regard to the positive steps that had been taken to Mr Moli's rehabilitation (para 39).  But also reasoned by reference to aspects of the parole assessment that indicated reasons for concern as to Mr Moli's risk of reoffending (paras 40-41).

135 Therefore, there was regard to the parole assessment.

136 Ultimately, the submission was to the effect that the Minister should have reached a different conclusion that was more favourable to Mr Moli by reason that he had been released on parole.  That was to cavil with the Minister's within jurisdiction reasoning.

137 The alleged error is not established.

Conclusion and orders

138 Mr Moli sought orders quashing the Minister's decision to cancel his visa.  He also sought injunctive relief restraining the Minister from acting on the decision.  Counsel for the parties did not address the terms of relief and the matter was left on the basis that counsel should be in a position to make those submissions at the time the Court delivered its reasons as to whether the application was to be upheld.

139 Nevertheless, given the conclusions I have reached, the application must be dismissed.  I will hear from the parties as to costs.

Associate:

Dated:    15 April 2025