Almassri v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-11-22|Before: Mr J, McDonald J

THE COURT ORDERS THAT:

The amended originating application for judicial review filed on 4 November 2024 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCDONALD J:

Introduction

The applicant, Fatma Almassri, is a 69-year-old woman from Gaza. She is presently in Egypt. She has six children who reside in Australia and who are Australian citizens. On 28 November 2023, she was granted a Visitor (Subclass 600) visa. The visa permitted Ms Almassri to enter Australia by no later than 28 November 2024.
On 15 April 2024, a delegate of the first respondent (Minister) made a decision to cancel Ms Almassri's visitor visa pursuant to s 128(a)(i) of the Migration Act 1958 (Cth) (visa cancellation decision). The visa cancellation decision was based on the fact that, also on 15 April 2024, the Australian Security Intelligence Organisation (ASIO) had assessed Ms Almassri to be "directly or indirectly a risk to security" (adverse security assessment). The adverse security assessment was made by the second respondent (Director-General).
Ms Almassri has applied for judicial review of the visa cancellation decision. She contends that that decision is invalid. For the reasons that follow, I have concluded that Ms Almassri has not established the invalidity of the visa cancellation decision. The application for judicial review will be dismissed.

The history of the proceedings and the Court's jurisdiction

On 20 May 2024, Ms Almassri commenced judicial review proceedings in relation to the visa cancellation decision by filing an originating application for judicial review in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA). She also applied for an order that those proceedings be transferred to this Court. She foreshadowed that she also wished to seek judicial review of the adverse security assessment that formed the basis for the visa cancellation decision. The FCFCOA has jurisdiction to review the visa cancellation decision, but not the decision to make the adverse security assessment. This Court has jurisdiction to review the decision to make the adverse security assessment but only has jurisdiction to review the visa cancellation decision if an application for review of that decision is made to the FCFCOA and then transferred to this Court. On 11 October 2024, the FCFCOA made an order pursuant to s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), transferring the proceeding to this Court. That order was confirmed by the Chief Justice of this Court on the same day, pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth). This Court has jurisdiction by virtue of s 476A(1)(a) of the Migration Act.
Once the proceeding was transferred to this Court, Ms Almassri filed an amended originating application for judicial review which challenged the validity of both the visa cancellation decision and the adverse security assessment itself. The Director-General was joined as the second respondent. Ms Almassri contended that the security assessment was invalid on the ground that the Director-General had failed to afford her procedural fairness in connection with its making. Similar issues have recently been considered by the Full Court in Imad v Director-General of Security [2024] FCAFC 138 and by Perry J in JLW24 v Minister for Immigration and Multicultural Affairs [2024] FCA 1319.
The day before the hearing, Ms Almassri abandoned her contention that the adverse security assessment was invalid, and sought leave to discontinue the proceeding as against the Director-General. I granted that leave (which was not opposed) and the Director-General took no part in the hearing. An affidavit of an ASIO officer that had been filed by the Director-General was relied upon by Ms Almassri in support of her challenge to the validity of the visa cancellation decision. The discontinuance of the proceeding as against the Director-General does not affect the jurisdiction of the Court to hear and determine the application for judicial review of the visa cancellation decision.

The Migration Act

Where a person who holds a visa is outside Australia, the Minister (or their delegate) may consider cancelling the visa under either s 116 or s 128 of the Migration Act. If the Minister decides to consider exercising the power in s 116, the procedures set out in Subdivision E of Division 3 of Part 2 of the Migration Act apply. If the Minister decides to consider exercising the power in s 128, the provisions in Subdivision F of Division 3 of Part 2 apply.
There are several important differences between s 116 and Subdivision E, on the one hand, and Subdivision F, on the other. Subdivision E sets out a procedure for cancelling visas "in or outside Australia". It provides for the visa holder to be given a notice of proposed cancellation (s 119) and a notice giving particulars of certain information that the Minister considers would be the reason, or a part of the reason, for cancelling the visa (s 120). Before a decision under Subdivision E is made, the visa holder is given an opportunity to respond to these notices.
In contrast, Subdivision F contemplates the making of a visa cancellation decision without notice to the applicant. Instead of being given notice of a proposed decision to cancel a visa before any visa cancellation decision is made, the procedures provided for in Subdivision F entitle a person to be notified after their visa has been cancelled and, only at that point, to make submissions as to why the cancellation of their visa should be revoked (s 129).
Thus, although the procedures provided for in both subdivisions enable a person to make submissions relevant to the question of whether they should hold the visa at the end of the process, a central difference between the two subdivisions is that, in the case of Subdivision E, the person will continue to hold their visa during the period when the submissions are being made and considered, whereas in the case of Subdivision F, the visa cancellation happens before the person receives any notification that cancellation is in prospect, so the making and consideration of the submissions occur at a time when the person no longer holds the visa.
It is relevant to note s 118 of the Migration Act, which provides that the powers to cancel a visa under (among other provisions) ss 116 and 128 "are not limited, or otherwise affected, by each other".
The provision under which Ms Almassri's visa was cancelled, s 128, relevantly provides: 128 Cancellation of visas of people outside Australia If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii) it is appropriate to cancel in accordance with this Subdivision; and (b) the non‑citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa.
In order to exercise the power in s 128, the delegate was first required to be satisfied that there was a ground for cancelling the visa under s 116. Section 116(1)(g) provides that the Minister may cancel a visa if satisfied that "a prescribed ground for cancelling a visa applies to the holder". The grounds prescribed for the purpose of s 116(1)(g) include the ground stated in reg 2.43(1)(b) of the Migration Regulations 1994 (Cth), namely: that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979;
There is no dispute that Ms Almassri had in fact been assessed by ASIO to be "directly or indirectly a risk to security". As has been noted, Ms Almassri's challenge to the validity of the adverse security assessment was not pursued.
In order to exercise the power in s 128, the delegate was also required to be satisfied that it was "appropriate to cancel in accordance with this Subdivision" - that is, Subdivision F. In other words, the delegate had to be satisfied that it was appropriate to exercise the power to cancel the visa in advance of any prior notice being given to the visa holder, rather than following the procedures provided for in Subdivision E.
Even if the preconditions for the cancellation of a visa under s 128 exist, the decision as to whether or not to cancel the visa is discretionary: see, eg, Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432; [2001] FCA 1821 (Doukmak) at 448-9 [48]-[49]; Hu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 63 at [16]. The discretion has sometimes been referred to as a "residual discretion" but it seems more accurate to simply to say that, if the preconditions for the exercise of the power in s 128 exist, the Minister (or delegate) has a discretionary power to cancel a visa. It is the delegate's exercise of this discretion which is the subject of Ms Almassri's two grounds of judicial review.
Once the delegate made a decision to cancel Ms Almassri's visa under s 128, notice of the visa cancellation decision was required to be given to her under s 129(1), which provides: 129 Notice of cancellation (1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a written notice: (a) stating the ground on which it was cancelled; and (b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and (c) inviting the former holder to show, within a specified time, being a prescribed time, that: (i) that ground does not exist; or (ii) there is a reason why the visa should not have been cancelled; and (d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and (e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked. …
Section 131 empowers the Minister (or a delegate) to revoke the cancellation of a visa that occurred under s 128. It provides: 131 Decision about revocation of cancellation (1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister: (a) if not satisfied that there was a ground for the cancellation; or (b) if satisfied that there is another reason why the cancellation should be revoked; is to revoke the cancellation. (2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.
For the purposes of s 131(2), reg 2.48 of the Migration Regulations provides as follows: For the purposes of subsection 131(2) of the Act (which deals with the circumstances in which cancellation of a visa must not be revoked), the circumstance is that the visa was cancelled on a ground prescribed under subsection 116(3).
Section 116(3) states that, if the Minister may cancel a visa under s 116(1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43(2) of the Migration Regulations identifies the "prescribed circumstances" for the purposes of s 116(3). It relevantly states that "for subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are … each of the circumstances comprising the grounds set out in … paragraph (1)(b)". That is a reference to reg 2.43(1)(b) (set out at [13] above), which is the regulation that refers to the ground that the holder of the visa has been assessed by ASIO to be directly or indirectly a risk to security.
The immediate practical effect of these provisions in Ms Almassri's case was that, once a decision was made by a delegate to cancel her visa under s 128(1) on the ground that she had been assessed by ASIO to be directly or indirectly a risk to security, the Minister had no power to revoke the cancellation of her visa under s 131 for so long as Ms Almassri was a person who had been assessed by ASIO to be directly or indirectly a risk to security. This was correctly recognised by the delegate who cancelled the visa in the notification of the cancellation decision that was given to Ms Almassri on 15 April 2024 (see [32] below).

The Australian Security Intelligence Organisation Act

Section 17(1)(c) of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) provides that one of the functions of ASIO is "to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities". Part IV of the ASIO Act (comprising ss 35-81) provides for the making of security assessments. Most of the provisions of Part IV did not apply to the security assessment conducted in relation to Ms Almassri by reason of s 36(1)(b) of the ASIO Act, due to the fact that the security assessment was conducted for the purposes of the exercise of a power under the Migration Act and the fact that Ms Almassri was not an Australian citizen or permanent resident. Section 37(1) of the ASIO Act, which did apply in relation to Ms Almassri, provides: 37 Security assessments (1) The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.
The relevant concept of "security" is defined in s 4 of the ASIO Act as follows: security means: (a) the protection of, and of the people of, the Commonwealth and the several States and Territories from: (i) espionage; (ii) sabotage; (iii) politically motivated violence; (iv) promotion of communal violence; (v) attacks on Australia's defence system; or (vi) acts of foreign interference; whether directed from, or committed within, Australia or not; and (aa) the protection of Australia's territorial and border integrity from serious threats; and (b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).

The Procedures Advice Manual

The delegate's decision to cancel Ms Almassri's visa under s 128 was made by reference to considerations set out in the Department of Home Affairs' Procedures Advice Manual (PAM3). It is necessary to appreciate the content of the relevant part of the PAM3 in order to interpret and assess the reasons recorded by the delegate in the decision record and to determine the second ground of judicial review. In connection with s 128, the PAM3 states: Residual discretion The power to cancel under s 128 is discretionary. Even if the delegate is satisfied that:

there is a ground for cancelling the visa under s 116
the visa holder is outside Australia and
it is appropriate to cancel the visa in accordance with Subdivision F (under Division 3) delegates must still consider whether the visa should be cancelled, considering all the circumstances of the case. It is policy that delegates take into account the same matters, to the extent that they are relevant, that are considered when a delegate decides whether to cancel a visa under s 116 - Matters that should be considered. Delegates should justify, in the decision record, the weight that they have applied to each of the considerations and their reasoning for deciding to cancel the visa, notwithstanding any reasons not to cancel the visa. Unlike visa cancellation under s 109, there are no prescribed matters to which the delegate must have regard in considering whether to cancel a visa under s 128.

The policy that delegates take into account the same matters, to the extent they are relevant, that are considered in connection with the exercise of the power in s 116 directs attention to the part of the PAM3 concerning the exercise of that power. It states: s 116 - Deciding whether to cancel Prescribed matters Unlike visa cancellation under s 109, there are no prescribed matters to which the delegate must have regard in considering whether to cancel a visa under s 116. Matters that should be considered It is policy that delegates take into account the following ten [sic] matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:

The purpose of the visa holder's travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.
The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.
The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.
The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.
The visa holder's past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).
Whether there are persons in Australia whose visas would, or may, be cancelled under s 140.
Whether there are mandatory legal consequences to a cancellation decision - as three examples:
whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia's non-refoulement obligations
whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s 46A, s 46B, s 48, s 48A, s 91E, s 91K and s 91P of the Act) and
whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s 189, and liable for removal under s 198.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, - as two examples:
If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:
Australia's international obligations and
PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children.
Whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations. It is important to note that a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection, as a cancellation decision is not, in and of itself, a decision to remove a person from Australia.

Evidence

In the FCFCOA, the Minister filed a court book containing relevant material from the Department's file and communications between the Department and Ms Almassri, including the notification of the cancellation decision and the decision record of the delegate. The court book was in evidence before me. Ms Almassri also relied on evidence contained in an affidavit of an ASIO officer which had been filed by the Director-General before Ms Almassri abandoned her challenge to the validity of the adverse security assessment. That affidavit relevantly annexed a copy of the adverse security assessment and explained the process by which it was made. It was common ground that the delegate had before him a copy of the adverse security assessment itself but not any of the other information about the process or the basis for the security assessment. Additionally, the evidence before me included a copy of the relevant parts of the PAM3.

The security assessment and the visa cancellation decision

Ms Almassri lodged her application for the visa on 15 November 2023. On 28 November 2023, a delegate of the Minister granted her a visitor visa. The visa permitted her to travel to Australia multiple times, providing she arrived in Australia by 28 November 2024 and stayed for no longer than three months from the date of each arrival. As at 15 April 2024, Ms Almassri had not entered Australia pursuant to the visa.
Ms Almassri's visa application was not referred to ASIO for assessment prior to the grant of the visitor visa. On 27 March 2024, the Department referred her visa to ASIO for assessment.
On 15 April 2024, the Director-General furnished the adverse security assessment to the Department of Home Affairs. The adverse security assessment is a relatively short document the substantive part of which states as follows: Adverse Security Assessment
Subject Fatma Selmi Almassri (born [date], Palestinian Authority).
Commonwealth agency Department of Home Affairs.
Purpose To provide security advice to the Minister or their delegate on whether it would be consistent with the requirements of security for prescribed administrative action to be taken under the Migration Act 1958 (Cth) in respect of Ms Almassri.
Head of Security Pursuant to section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), the protection of, and of the people of, the Commonwealth and the several States and Territories from politically motivated violence.
Assessment ASIO assesses Ms Almassri to be directly or indirectly a risk to security (within the meaning of section 4 of the ASIO Act) and that it would not be consistent with the requirements of security for Ms Almassri to continue to hold an Australian Temporary Visitor visa (subclass FA 600).
Recommendation ASIO recommends Ms Almassri's visa be cancelled.
On 15 April 2024, Ms Almassri received an email from a delegate of the Minister, attaching a notification of a decision to cancel the visa, and the decision record in relation to the cancellation decision. The email constituted the first notice to Ms Almassri that a security assessment had been conducted in respect of her, that the cancellation of her visa had been under consideration, or that her visa had been cancelled.
The notification stated that the visa was cancelled on 15 April 2024 under s 128 of the Migration Act and set out the terms of s 128. Under the heading "Ground(s) for cancellation", the notification stated: Your visa was cancelled because I was satisfied that there was a ground for cancelling your visa under paragraph 116(1)(g) of the Act and regulation 2.43(1)(b) of the Migration Regulations 1994 … .
Under the heading "Particulars of the ground for cancellation", the notification set out the content of s 116(1)(g) of the Migration Act and reg 2.43(1)(b) of the Migration Regulations. Under the heading, "Information because of which the grounds were considered to exist", the notification stated: On 15 April 2024 the Australian Security Intelligence Organisation ('ASIO') assessed you to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisations Act 1979 [sic]. Based on the above information, I was satisfied grounds for cancellation of your visa exist at paragraph 116(1)(g) of the Act relying on regulation 2.43(1)(b) of the Regulations. You have the opportunity to comment on the ground(s) for cancellation identified in this letter and to give reasons why your visa should not have been cancelled. However, as a consequence of the particular ground(s) used to cancel your visa, it is actually not legally possible to revoke the cancellation of your visa. Once a decision to cancel a visa has been made on the grounds identified in this letter, there is no power to revoke the cancellation. This is based on the decision of the Federal Court in the matter of [Doukmak]. The court decided a visa cancellation under section 128 cannot be revoked in cases where subsection 131(2) of the Act, regulation 2.48 and subregulation 2.43(2) of the Regulations affect a particular cancellation decision. The cancellation of your visa is affected by these provisions. As noted above, although you have the opportunity to comment on the ground(s) for cancellation identified in this letter and to give reasons why your visa should not have been cancelled, it is actually not legally possible to revoke the cancellation of your visa.
The notification was signed by the delegate and his first name and position number were stated.
Also attached to the email sent to Ms Almassri on 15 April 2024 was the decision record of the delegate. Under the heading "PART C: GROUNDS FOR CANCELLATION", the delegate first recorded that he was satisfied that there were grounds to cancel Ms Almassri's visa as required by s 128(a)(i). The delegate stated that there was a ground for cancellation of the visa under s 116(1)(g) of the Migration Act, by reason of reg 2.43(1)(b) of the Migration Regulations. Those provisions were again set out. The relevant factual finding of the delegate was recorded as follows: On 15 April 2024 ASIO assessed the visa holder to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisations Act 1979 [sic]. Based on this evidence I am satisfied the prescribed ground for cancellation exists at Regulation 2.43(1)(b) above, and hence that grounds for cancellation exist under section 116(1)(g) of the Act.
The delegate next recorded that he found it was "appropriate" to cancel the visa in accordance with Subdivision F of Division 3 of Part 2 of the Migration Act. He set out his reasons for reaching that conclusion. The delegate next found that that the visa holder is outside Australia, based on departmental records available to him.
The delegate recognised that he was then required to "exercise my residual discretion in deciding whether to cancel the visa". The delegate considered and assigned nominal weights to various considerations corresponding to the nine considerations identified in the part of the PAM3 which is set out at [25] above. The way the delegate dealt with one of the considerations he identified is the subject of Ms Almassri's second ground of judicial review. The relevant part of the decision record is set out at [63] below.
Finally, under the heading "PART D: DECISION", the delegate stated his conclusion that "[b]ased on the findings and assessment above, I have decided to cancel the visa holder's Visitor visa".

Ground 1 - delegate failed to consider the nature and severity of the risk identified by the security assessment, or to make inquiries about the risk

Delegate required to consider the nature and severity of the risk to national security?

The delegate's decision record indicates that he appreciated that he was required to exercise a discretion in deciding whether to cancel the visa. He identified various considerations that he took into consideration, under headings reflecting the general categories of considerations identified by the PAM3.
The decision record suggests that the delegate did not take into account "the nature and severity of the risk in the adverse security assessment", at least as a discrete consideration which he separately identified and weighed in deciding to cancel the visa. The delegate's reasons referred to the fact that an adverse security assessment had been made. The conclusion that the delegate made no attempt to inquire into or reach a view as to the nature and severity of the risk is reinforced by the fact that the Minister has not produced in the court book any material that was before the delegate relating specifically to the nature and severity of the risk. The security assessment itself (the terms of which are set out at [29] above) also did not expressly state the nature and severity of the risk to Australia's security on its face, although it contained a recommendation that Ms Almassri's visa be cancelled. Ms Almassri points out that the evidence in the affidavit of the ASIO officer was that an adverse security assessment could be made if ASIO concluded that the risk posed by a person to Australia's security was assessed as "not remote", and that this is a relatively low threshold.
Ms Almassri submits: The nature and severity of the risk said to have been posed by the Applicant was central to the decision as to whether the Visa should be cancelled. The delegate could not properly form the view that it was appropriate to cancel the Applicant's visa on the basis that she had been assessed as a risk to security without taking into account what the risk was said to be or how serious it was.
It is submitted for Ms Almassri that, because the power conferred by s 128 is a discretionary power, "[w]ithout balancing the nature and severity of the risk identified in the security assessment, against the other factors, the statutory task of making a discretionary decision was not complete".
Although it was not initially framed in these terms, in my view Ms Almassri's first submission is tantamount to a contention that, in the circumstances of this case, the nature and severity of the risk identified in the security assessment was a mandatory relevant consideration. I cannot see any meaningful distinction between a mandatory consideration and a consideration which, if it was not taken into account, would mean that the statutory task of making a discretionary decision was not complete.
The High Court has emphasised that the identification of the limits on a discretionary power, and in particular the identification of mandatory relevant considerations, is principally a matter of statutory construction: see, eg, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at 347-8 [73] (McHugh, Gummow and Hayne JJ). In Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, Mason J said (at 39-40): What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act. (Emphasis added.)
At least in his written submissions, the Minister relied upon the following passage from the judgment of Moore J in Doukmak at [33] in support of a submission that the delegate need not be satisfied of the nature and severity of the risk posed directly or indirectly to Australia's security: In the context of reg 2.43 the Minister need not be satisfied that an applicant is a security risk. The Minister need only be satisfied that the visa holder has been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security. Any particulars of the ground and information relied upon need only relate to whether a security assessment has been provided, who provided the assessment, when it was provided and what it concluded. (Emphasis in original.)
These observations were made by Moore J in the context of considering a contention that a notice given under s 129 did not give "particulars of [the ground on which the visa was cancelled] and of the information (not being non-disclosable information) because of which the ground was considered to exist", as was required by s 129(1)(b). So, what Moore J said in the paragraph quoted was directed to identifying what was necessary to establish that the ground of cancellation created by s 116(1)(g) and reg 2.43 existed, and to give "particulars of that ground". It was not directed to the different question of the considerations (if any) that the Minister was bound to take into account when considering the exercise of the discretion conferred by s 128. What was said by Moore J was not directed to the same issue that arises in this case.
Doukmak did not determine whether there were any mandatory relevant considerations in the exercise of the discretionary power conferred by s 128. The parties did not identify any other authorities that have determined whether, or what, mandatory relevant considerations apply in relation to the exercise of the discretionary power in s 128, either generally or in the particular context of an adverse security assessment.
In the present case, that question must be considered as a matter of statutory construction by reference to the scheme created by s 128, s 116(1)(g) and reg 2.43, the other provisions of Subdivision F, and the wider context of Division 3 of Part 2 of the Migration Act.
Section 128 does not expressly set out considerations to which a decision-maker is bound to have regard in exercising the discretion to cancel a visa under that section. The nature of the cancellation power is such that it can be inferred that the Minister or delegate is required to take into account, at least, the existence of the ground which they have found to exist for the purposes of s 128(a)(i).
It does not follow that, simply because the decision whether to cancel the visa under s 128 was discretionary, the nature and severity of the risk to Australia's security was necessarily a consideration that the delegate was legally required to take into account. While it might be natural to suppose that, if the grounds for cancellation of a visa relate to a risk to Australia's security, a decision-maker should ordinarily regard the nature and severity of the risk a relevant consideration, there are features of the scheme created by Subdivisions D, E and F of Division 3 of Part 2 of the Migration Act that point away from the conclusion that the nature and severity of the risk to Australia's security was a mandatory relevant consideration in the exercise of the discretion whether or not to cancel the visa under s 128.
I note that in Leghaei v Director General of Security [2005] FCA 1576 (Leghaei), Madgwick J described the effect of ss 116(1)(g) and (3) as follows (at [10]): On the furnishing to the Minister of an adverse security assessment, the Minister is obliged to cancel an applicant's visa. A complex of legislative provisions creates this obligation. Under s 116(1)(g) of the Migration Act, the Minister may cancel a visa if she is satisfied that "a prescribed ground for cancelling a visa applies to the holder". Pursuant to s 116(3), if the Minister may cancel a visa under subsection (1), she "must do so if there exist prescribed circumstances in which a visa must be cancelled".
A summary to similar effect also appears in the judgment of the Full Court in Leghaei v Director-General of Security (2007) 97 ALD 516; [2007] FCAFC 37 at 518 [14]. Both of these passages were introductory paragraphs and the central issues in the case involved the application of the requirements of procedural fairness to the making of a security assessment, rather than the operation of s 116 of the Migration Act.
If the passage I have quoted above were to be understood literally, then the consequence of the Director-General furnishing the Minister with the adverse security assessment was that Ms Almassri's visa was bound to be cancelled, one way or another. If the delegate had decided not to exercise the discretion in s 128 in favour of cancellation, he would have been obliged to consider cancelling it under s 116. In that case, the delegate would have been required to issue a notice under s 119 of the Migration Act and, unless Ms Almassri could satisfy the Minister that no adverse security assessment existed in relation to her, the Minister would have been bound to cancel the visa under s 116(1)(g), by reason of s 116(3). If that is correct, it is difficult to see what utility there would be in the delegate being required to take into account the nature and severity of the risk to Australia's security as a consideration in deciding whether to cancel Ms Almassri's visa under s 128, if declining to do so would have led to the delegate being required to issue a notice under s 119 and ultimately to cancel the visa under s 116.
The Minister did not seek to rely upon this literal reading of the passage from Leghaei. As I understood the Minister's position, it was accepted that the Minister (or a delegate) could make a procedural decision to choose to consider exercising the power in s 116 or to consider exercising the power in s 128. If the Minister chose not to exercise the discretionary power in s 128 to cancel the visa, the Minister was not also required to consider exercising the power in s 116. The effect is that, by making a procedural decision not to consider the exercise of the power in s 116, the Minister can avoid being required to cancel a visa on the basis of an adverse assessment, even though one has been furnished to the Minister. This view was also supported by Ms Almassri. It was pointed out that it has been clear since Doukmak was decided that s 128 confers a discretionary power. It was also submitted that, if the Minister (or delegate) has chosen to have regard to an adverse security assessment for the purpose of considering the exercise of the power in s 128 and has exercised the discretion against cancelling the visa under that section, the same security assessment is not available to be considered as a basis for cancellation under s 116. I do not find it necessary to reach any concluded view about these matters.
What can be said, however, is that s 116(3) clearly contemplates that a visa may be (and may be required by law to be) cancelled on the basis that there exists an adverse security assessment, without any assessment by the Minister (or delegate) of the nature and severity of the risk posed by the presence of the visa applicant in Australia (or without any such assessment having the capacity to affect the decision). This is part of the statutory context to be considered in ascertaining what, if any, are the mandatory relevant considerations to which a delegate must have regard when considering cancellation under s 128 on the basis that an adverse security assessment has been made by ASIO.
More immediately contextually relevant is s 131(2). While the scheme created by Subdivision F of Division 3 of Part 2 of the Migration Act generally provides for a form of post-cancellation hearing for a visa holder whose visa is cancelled while they are outside Australia (through the provision of notice and the invitation for the former visa holder to provide a response in accordance with s 129, enabling the former visa holder to seek revocation of the cancellation decision), s 131(2) prevents the Minister (or delegate) from revoking a cancellation decision in prescribed circumstances - including where ASIO has made an adverse security assessment. A consequence of this is that, even if a former visa holder were able to satisfy the Minister (through submissions or evidence) that the degree of risk to Australia's security posed by their holding the visa or being present in Australia were relatively low (or for that matter, that the security assessment were wrong and they posed no risk), that consideration could not be taken into account by the Minister in deciding whether to revoke the visa cancellation decision.
It would be surprising if a consideration that the Minister was effectively prohibited from taking into account in deciding whether to revoke a cancellation decision, once made, were not merely a permissible but a mandatory consideration in the decision whether to cancel the visa in the first place. To my mind, consideration of the scheme of Subdivision F as a whole suggests that a delegate is entitled to treat the bare fact of an adverse security assessment having been made as a consideration weighing in favour of cancellation, without being legally required to attempt to assess for themselves the nature and severity of the risk to national security.
Given that the Migration Act and Migration Regulations contemplate that the mere existence of an adverse security assessment should in some circumstances be capable of precluding a person from continuing to hold a visa, I do not consider that the general discretion conferred by the word "may" in s 128 of the Migration Act, when read together with the ground for cancellation identified in reg 2.43 of the Migration Regulations, should be interpreted as requiring the Minister (or a delegate) to consider, as a mandatory relevant consideration, the nature and severity of the risk to Australia's security which is posed by the visa holder. That is not to say that a delegate could not regard that consideration as relevant, and give it such weight (if any) as the delegate thought appropriate: see Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 (Deane J).
For these reasons, in my view, s 128 of the Migration Act (or that section read together with s 116(1)(g) and reg 2.43 of the Migration Regulations) did not legally require the delegate to consider the nature and severity of the security risk, whether as assessed by ASIO or in the delegate's own view. It was open to the delegate to treat the fact that an adverse security assessment had been made by ASIO itself as a consideration that weighed in favour of the cancellation of Ms Almassri's visa and to give that consideration such weight as the delegate considered appropriate, within the bounds of reasonableness.

Delegate's decision unreasonable for failure to make obvious inquiries?

In the alternative, and still as an aspect of her first ground of judicial review, Ms Almassri submits that (a) the delegate did not have information before him about the nature or severity of the risk identified in the security assessment; (b) the delegate failed to make enquiries to obtain that information; (c) information of that kind was central to the delegate's decision; and (d) the enquiry to be made was obvious and simple. Ms Almassri submits that the failure of the delegate to seek information of that kind from ASIO was legally unreasonable and a constructive failure to exercise jurisdiction.
Given my conclusion above that the delegate was not required to have regard to the nature and severity of the risk, I do not accept one of the premises of this argument, namely that information as to the nature and severity of the risk to the community was "central" to the exercise of the discretion. It was a matter which the delegate was entitled to choose to take into account but not a matter that he was legally required to consider.
While I accept that the nature and severity of the security risk may be regarded as an obvious matter for inquiry, I consider that it was within the legally permissible approach to the exercise of the discretion in s 128 for the delegate to choose to give such weight as he thought appropriate to the very fact that ASIO had made the adverse security assessment, without attempting to weigh the nature and severity of the risk.
For these reasons, I do not accept that Ms Almassri's first ground of judicial review is established. For the avoidance of doubt, if I am wrong in my conclusion that the delegate was not legally required to have regard to the nature and severity of the particular risk posed by Ms Almassri, I would accept that the delegate did not take that matter into account.

Ground 2 - delegate acted unreasonably

In her second ground of judicial review, Ms Almassri contends that the delegate acted unreasonably or illogically in the way he reasoned in relation to the consideration that he identified as "The circumstances in which the ground for cancellation arose (extenuating circumstances beyond the visa holder's control that led to the grounds existing)". The delegate's reasons in respect of that consideration are short, consisting of three sentences. The delegate said: The circumstance which led to the grounds for cancellation arising were when, on 15 April 2024 ASIO assessed the visa holder to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisations Act 1979 [sic]. There is no information before me to indicate the grounds for cancellation arose due to circumstances beyond the visa holder's control. Taking into account the above, I give this consideration significant weight in favour of cancelling the visa.
A focus of the second ground of judicial review, as initially articulated in the originating application for judicial review and in Ms Almassri's written submissions, was an alleged departure by the delegate from the requirements of the PAM3. Different views have been expressed about the potential importance of an unintentional departure from policy guidance in determining whether a decision is affected by jurisdictional error: compare El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038 at 55 [45]; Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438; [2019] FCA 452 at 457 [89]; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189.
It is not necessary to consider that issue further because, at the hearing, Ms Almassri indicated that she was not pursuing a submission based upon a misunderstanding of the PAM3, and reformulated her submissions as a contention that the delegate had reasoned in a manner that was unreasonable or illogical. The content of the relevant part of the PAM3 remains indirectly relevant, however, because it is apparent that the delegate was purporting to apply the approach provided for in the PAM3.
It is apparent from the structure and the expressions used by the delegate that he was attempting to make his decision in accordance with the guidance provided by the PAM3. In particular, it is apparent that the delegate's reasons under the heading "The circumstances in which the ground for cancellation arose (extenuating circumstances beyond the visa holder's control that led to the grounds existing)" was an attempt to apply the policy set out in the fourth dot-point in the extract from the PAM3 that is set out at [25] above.
Ms Almassri argued that the delegate wrongly conflated the ground of cancellation (the existence of the adverse security assessment) with the circumstances in which the ground arose. Ms Almassri argued the relevant "circumstances" were the matters that gave rise to the assessment, and that these were not considered. She submitted that it was illogical or irrational to regard the very existence of the ground as the circumstances in which the ground arose. She submitted that the delegate's statement that "[t]he circumstance which led to the grounds for cancellation arising were when, on 15 April 2024, ASIO assessed the visa holder to be … a risk to security" constituted "an irrational finding of fact". She submitted that "[n]o reasonable decision-maker can look at that and purport to consider the circumstances and … weigh it heavily in favour of cancelling the visa".
The delegate's reasons in relation to this consideration are not clearly expressed. There is considerable force in Ms Almassri's criticism of the delegate's description of the "circumstances in which the ground arose". It is not a natural or sensible use of language to describe the very fact that ASIO made the adverse security assessment - which is what constitutes the "ground" for cancellation described in reg 2.43 - as the "circumstances" in which that ground arose.
However, I do not think it is right to characterise this as an irrational finding of fact. Rather, it seems that the delegate attached an inappropriate label or characterisation ("the circumstances in which the ground arose") to the fact that constituted the ground for cancellation itself. That does not itself demonstrate that the decision was affected by irrationality or unreasonableness in the relevant sense. It is necessary to consider the delegate's reasons and ascertain what it is that the delegate in fact did - what his actual reasoning was - and then to consider whether what he did was so irrational or unreasonable as to constitute jurisdictional error.
Doing the best I can to understand what the delegate has written, it seems to me that, in the first sentence, the delegate did take into account the very fact that ASIO had made the adverse security assessment. That being the ground for cancellation that the delegate had found to exist, the delegate was entitled to take that fact into account in the exercise of his discretion.
Then, in the second sentence, the delegate recorded his view that he did not have any information as to whether the ground arose from circumstances beyond Ms Almassri's control. Given that it was ASIO that had unilaterally made the adverse security assessment, I think the delegate must be understood here as saying that he did not have information as to the basis for the security assessment and therefore was unable to say whether it arose due to matters beyond Ms Almassri's control. This suggests that the delegate did, at least in some way, think about the circumstances in which the ground arose, albeit that his conclusion was that he had no information to support any particular conclusion as to what those circumstances were or whether they were beyond Ms Almassri's control. The evident point of the second sentence was (a) to demonstrate that the delegate had considered whether he could find that there were extenuating circumstances beyond the visa holder's control (as the PAM3 directed), and (b) to record that that was a neutral factor in the circumstances of this case because of the lack of any information that the ground arose due to circumstances beyond the visa holder's control.
It seems to me that there are two possible ways to understand the third sentence. The first is that the delegate attached "significant weight", in favour of visa cancellation, to the very fact that he had no information as to whether the circumstances that gave rise to the adverse security assessment were beyond Ms Almassri's control. That reading is potentially open, because the third sentence immediately followed the second. If that is what the delegate did then it would, I think, be irrational or unreasonable. The absence of information about possible extenuating circumstances could not itself rationally operate as a significant factor in favour of cancellation of the visa.
However, an alternative way to understand the third sentence is that, having taken into account the fact that ASIO had made the security assessment, and having found that he had no information that the existence of the adverse security assessment arose due to circumstances beyond Ms Almassri's control, the delegate formed the view that he should attach "significant weight in favour of cancellation" because (a) he would attach significant weight in favour of cancellation to the fact of the adverse security assessment having been made, and (b) that weight was not reduced or mitigated by the delegate's awareness of any particular facts that would suggest that the adverse security assessment arose because of matters beyond the visa holder's control.
I have concluded, not without some hesitation, that this alternative view represents the better interpretation of the delegate's reasons. I accept that what the delegate actually appears to have attached weight to is the existence of the ground - the very fact that the adverse security assessment was made. A surprising feature of the policy guidance in relation to the cancellation of visas under ss 116 and 128 is that there appears to be no express statement that delegates should consider the nature of the ground for cancellation that exists, and attribute some weight in favour of cancellation of a visa according to the strength of the policy considerations favouring cancellation that arise by reason of the fact that that particular ground for cancellation exists in the case under consideration. It is natural that the delegate should feel a need to attempt to articulate, somewhere in the decision record, that he was attaching weight to the fact that ASIO had made an adverse security assessment, as a matter weighing in favour of the cancellation of the visa. On balance, I think that, on a fair reading of the delegate's reasons, that is what he should be understood as having done under the heading "The circumstances in which the ground for cancellation arose (extenuating circumstances beyond the visa holder's control that led to the grounds existing)". The delegate's use of the expression "taking into account the above" is ambiguous but is consistent with attaching weight to the existence of the ground constituted by the making of the adverse security assessment.
Understood in that way, as on balance I think it should be, the approach of the delegate has an intelligible justification and I do not think it can be characterised as illogical or legally unreasonable. Given the role and expertise of ASIO and the function served by security assessments, as well as the fact that the security assessment itself included a recommendation that the visa be cancelled, it was not irrational or unreasonable for the delegate to give the fact of the security assessment itself significant weight in favour of the cancellation of the visa.

Conclusion

For the reasons explained above, I am not satisfied that Ms Almassri has established either of her grounds of judicial review. The application for judicial review must be dismissed. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald.

Migration Act 1958(Cth)ss 116, 118, 119, 128, 129, 131, 476A

At a glance

Court

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Before

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Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (16)