(a) Ground 1
29 The Minister did not contest that he was obliged by law to give proper, genuine and realistic consideration to the merits of the case in determining whether or not to cancel a visa under s 501(3) of the Act. He denied, however, that this meant that he had to give consideration of some particular or definable quality to each of the items of evidence before him.
30 The Minister submitted that the time he had spent considering whether or not to cancel the visas of Mr Taulahi and Mr Carrascalao could not be determinative because:
(a) he was entitled to rely on the Department's summaries of the underlying material (citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 30-31 per Gibbs CJ and Williams v Minister for Justice and Customs [2007] FCAFC 33; 157 FCR 286 (Williams) at [21] per Gyles, Allsop and Buchanan JJ); and
(b) he also had some familiarity with both cases, given his previous decisions to cancel their visas and noting also that several of the attachments to the Department's submission to him in both cases dated back as far as 2009 and related to general matters of policy and national interest with which, it could be reasonably inferred, the Minister was familiar.
31 The Minister also (correctly) emphasised the danger that the use of an expression such as "proper, genuine and realistic consideration", as relied upon by both judicial review applicants, could draw the Court into an impermissible merits review.
32 The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister's decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as "proper, genuine and realistic consideration" can, if taken out of context, encourage a "slide" into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA's comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).
33 The provenance of the expression was identified by the High Court in SZJSS at [26] as Gummow J's judgment in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; 14 ALD 291 at 292. There his Honour was addressing the ground of judicial review relating to the exercise of a discretionary power in accordance with a rule or policy and without regard to the merits of a particular case. In the context of describing what was required of the Minister's delegate in considering all relevant material placed before him, Gummow J said that the delegate was required to "give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy". In SZJSS, the High Court did not indicate that it was inappropriate to use the expression in that particular context. Naturally, when doing so, the limits of the judicial review function still need strictly to be observed.
34 The danger of using that or similar expressions has been emphasised in many cases in other contexts. For example, when the expression has been used in conjunction with the ground of judicial review relating to the failure to take into account a mandatory relevant consideration, Courts have acknowledged that its use carries the risk of creating "a kind of general warrant, involving language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised" (see Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 (Ayoub) at [24] per Flick, Griffiths and Perry JJ, Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ and Anderson v Director-General of the Department of Environment & Climate Change [2008] NSWCA 337 at [51]-[58] per Tobias JA, with whom Spigelman CJ and Macfarlan JA agreed).
35 That is not the context in which the judicial review applicants rely upon the expression here. Its use relates specifically to their contention that, in considering whether or not to exercise his power under s 501(3), the Minister was under a legal obligation to consider the merits of their particular cases and that such consideration had to be meaningful, in the sense of being "proper, genuine and realistic". As we will explain below, we consider that the evaluative judgment which the Court must undertake in assessing whether the Minister has properly considered the merits of the cases before him requires focus on the question of whether the applicants have established that the Minister did not engage in an active intellectual process in determining whether or not to exercise his power under s 501(3) of the Act.
36 A series of cases have addressed the meaning of a statutory obligation of a decision-maker to "consider" particular matters (see, for example, Parramatta City Council v Hale (1982) 47 LGRA 319 (Hale); Tickner v Chapman [1995] FCA 1726; 57 FCR 451 at 462 per Black CJ, at 476-477 per Burchett J and at 495-496 per Kiefel J and Minister for Aboriginal And Torres Strait Islander Affairs v Western Australia [1996] FCA 1509; 67 FCR 40 (the Douglas case) at 62-63 per Black CJ, Burchett and Kiefel JJ). It is appropriate to say something more about each of those cases, while noting their particular statutory contexts and the fact that those contexts included a statutorily-imposed obligation on the decision-maker to "consider" particular matters.
37 Hale illustrates how each case will necessarily turn on its own facts. A multi-member Council was statutorily required by s 90 of the Environmental Planning and Assessment Act 1979 (NSW), in determining a development application, to take into consideration such of certain specified matters which were relevant. By a majority, the Court of Appeal held that the evidence established that the Council had not considered some particular matters which were required to be considered under s 90. This was because, in the time available, not all members of the Council had been given a reasonable opportunity to understand the significance of certain proposed changes in conditions to any approval and lacked assistance in understanding the consequences of some changes before they were voted on at the Council meeting.
38 In Tickner v Chapman an express statutory obligation was imposed upon the Minister under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Heritage Protection Act) to consider personally a report and any representations attached to it, bearing upon the possible making of a declaration which would have the effect of protecting a site which the Minister was satisfied had special significance for Aboriginals. Chief Justice Black said at page 462 (emphasis added):
It is not surprising that the Minister should be required personally to participate in this way in a process that may lead to a declaration under s 10. The powers given to the Minister under the Act for the purposes of protecting Aboriginal heritage are capable of affecting very seriously the interests of third parties, and for this reason the Parliament has provided for decision-making at the highest level. It is this feature of the scheme of the Act - the explicit requirement that the Minister consider the representations - that removes the process under s 10 from the general rule that a Minister is not expected to do everything personally: see the observations of Brennan J in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 416 adopting Lord Reid's comments in Ridge v Baldwin [1964] AC 40 at 72; cf O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 at 11-12, per Gibbs CJ. The express requirement that the Minister consider the representations also gives rise to a more precisely defined duty binding on the Minister than the Minister's duty to consider matters in connection with satisfying himself or herself that a grant of land should be made under s 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth): cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31, per Gibbs CJ, at 37-39, per Mason J, and at 63-65 and 65-66, per Brennan J.
39 In relation to what was meant by the word "consider", in the context of the Minister's explicit statutory duty under s 10(1)(c) to consider a report and any representations attached to it, Burchett J said the following at 476-477 (emphasis in original):
What is it to "consider" material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to "consider" a report, Laskin J, speaking for the Supreme Court of Canada, said: "Certainly, the board must have the report before it": Walters v Essex (County) Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31, conceded that the Minister, in the circumstances of that case, was not obliged "to read for himself all the relevant papers", and that it "would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department", he also made it plain that the summary must "bring to his attention" all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.
40 Justice Kiefel (as her Honour then was) was the third member of the Full Court in Tickner v Chapman. Her Honour made the following observations at 495-496 (emphasis added):
To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.
41 It appears that her Honour may have taken a different view from the majority on whether the Minister was entitled to rely upon Departmental summaries. For reasons which we will develop shortly, we see no legal bar to the Minister taking into account accurate and sufficiently comprehensive summaries of information prepared by his staff or Departmental officers to assist him in exercising his power under s 501(3) of the Act.
42 As noted above, the Tickner v Chapman concerned a statute which imposed an express obligation on the Minister to "consider" certain matters. As Black CJ observed, this gave rise to "a more precisely defined duty binding on the Minister" than, for example, the Minister's duty to consider matters in different statutory context, such as that arising under s 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
43 It is also important to note that, at 462, Black CJ offered the following meaning of the word "consider" which, in our view, is also applicable when there is a legal obligation to consider something, including the individual merits of a particular case (emphasis added):
Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
44 As is evident from the extracts above, both Black CJ and Kiefel J took a similar view of the meaning of the word "consider" in Tickner v Chapman. Although their Honours used different language in explaining the meaning of the word "consider" in that context, the common denominator is that the decision-maker must engage in an active intellectual process in giving consideration to the relevant matters or criteria.
45 Subsequent cases have endorsed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [47]-[54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364 at [24]-[26] per Collier J; Telstra Corporation Limited v Australian Competition and Consumer Commission [2017] FCA 316 (Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]-[11] per Bromberg J). This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).
46 We are of the view that the meaning of the word "consider" set out in Tickner v Chapman and the requirement for a decision-maker to engage in an active intellectual process in giving consideration to the relevant matters or criteria should also be applied in determining grounds 1 and 2 of the present applications. As noted above, under s 501(3), the Minister has a discretion to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest. Otherwise, the Act does not expressly oblige the Minister to consider any particular thing or matter before deciding to exercise his powers under that provision. Nevertheless, as we have noted above, the Minister did not contest that he was under a general legal obligation to consider the merits of their cases before cancelling the visas of both Mr Taulahi and Mr Carrascalao. An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a "more precisely defined duty", as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word "consider" in this judicial review context requires the Minister to engage in an "active intellectual process" in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).
47 Thus the central focus in the two proceedings here is on the question whether the Minister engaged in an active intellectual process in considering the merits of the two cases before him. Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context. We will discuss some of those statutory indicators shortly.
48 Before we do, however, it is appropriate to state two matters. First, a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof. Secondly, some broad guidance may be obtained from other authorities as to the kinds of circumstances in which such a finding could be made. In referring to these authorities, we do not suggest that the requisite evaluative judgment is to be conducted as though it involves a "tick the box" comparative exercise by reference to other decided cases. As we have emphasised, each case will necessarily turn on its own particular facts and circumstances.
49 The Douglas case, as referred to above, has some broad parallels with these proceedings, with particular reference to the significance which was attached by the primary judge, and the Full Court on appeal, to the limited time which was available to the Minister to do what he said he had done in a statement of reasons provided by him. That case involved a challenge to the Minister's decision to make a declaration under s 10(1) of the Heritage Protection Act. One of the issues in the proceedings was whether the Minister had considered certain representations. The Court emphasised that the Minister's duty under s 10(1)(c) to "consider" both the report and the representations which had been received by the reporter and which were required to be attached to the report, was a personal non-delegable task. The Minister's statement of reasons said that he had obtained a report to which representations received by the reporter were attached. At first instance, the primary judge held that, while the matter was "close to the borderline", the Minister had not considered the representations. The primary judge attached some significance to the fact that the Minister could have given evidence to clarify whether he had considered the representations, but had not done so. Some evidence was given, however, by the Minister's advisor (a Mr McLaughlin). At the end of Mr McLaughlin's cross-examination at the trial, the primary judge adjourned the proceeding to allow the Minister to adduce further evidence on the matter, but none was provided. The Minister simply relied upon his advisor's evidence of the Minister's normal practice of "reading everything" and of the advisor having read the representations on the Minister's behalf. The primary judge found that, in the absence of further evidence, greater reliance could be placed on other inferences which could be drawn from the evidence and which supported the claim that the Minister had not considered the representations in the relevant sense.
50 The Full Court found at 62-63 that the evidence before the primary judge disclosed that the Minister did not himself ever receive the representations, nor was there any evidence which indicated to the Minister where the representations could be found. The Full Court described the state of the evidence at 63:
… It showed that there was a task which would take some days to complete, and that there were available only a few days, if that, for the Minister to do so. His adviser had been working on the one set of the representations over Easter, and there was nothing to indicate the Minister was in his office, where the representations were located, until 5 April, the day before the declaration was made. There was no discussion with the adviser who had read them, and no other apparent means by which the Minister could have informed himself of their content. In these circumstances, a conclusion that the Minister most likely did not have access to the representations, and had no time to consider them was open. The critical factor, it seems to us, which emerges from the evidence is the strong suggestion that the Minister simply had insufficient opportunity to read the representations. And there was no cogent evidence to suggest otherwise. The s 13 reasons did not, given the evidence of Mr McLaughlin, deserve any weight. The conclusion for which Mr and Mrs Douglas contended was persuasively open. That the Minister has insufficient time and did not read the representations gained further support from his failure to adduce further evidence. His Honour was in our view correct in holding that there had not been the necessary consideration of the representations.
51 As is emphasised in this passage, the Full Court saw the critical factor as the strong indication arising from the evidence that the Minister had had an insufficient opportunity to read the representations, and there was no evidence to the contrary. The Full Court added that the inference that the Minister had had insufficient time and had not read the representations was reinforced by the Minister's failure to adduce further evidence in the particular circumstances of the case.
52 As we have emphasised, each case must necessarily turn on its own particular facts and circumstances as established by the evidence. In the Douglas case, there was a finding that the task of considering the relevant representations would take "some days" to complete and there was a finding that the Minister had not turned his mind at all to the representations.
53 There are several aspects of the particular statutory scheme here which help define the scope of, and give content to, the Minister's legal obligation to consider the individual merits of a case in deciding whether or not to cancel a visa under s 501(3) of the Act.
54 First, in such a case, there is no formal application before the Minister. This stands in contrast with the position under s 501(3) when the Minister is considering whether or not to refuse to grant a visa, as in this circumstance there must necessarily be a valid application for a visa before the Minister (see s 47 of the Act).
55 Secondly, s 501(5) of the Act states expressly that the rules of natural justice and the code of procedure set out in Subdiv AB of Div 3 of Pt 2 do not apply to a decision under s 501(3). Accordingly, the Minister is under no legal obligation to inform the affected visa holder or anyone else of the Minister's intention to consider cancelling a visa under this provision, nor to invite their comments. This serves to underline the significant power which is vested in the Minister and the importance of it being exercised in accordance with relevant legal requirements.
56 Thirdly, and importantly, s 501(4) provides expressly that the power under s 501(3) may only be exercised by the Minister personally. This may reasonably be seen to reflect a legislative intention that the power be exercised at the highest level of government, having regard to the national interest considerations and the absence of an obligation to provide natural justice. As Hayne J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [187], conferring power on a Minister "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".
57 Fourthly, it is important to note the obligations imposed upon the Minister under s 501C (reproduced at [5] above) when a visa has been cancelled under s 501(3). After making such a decision, the Minister is obliged by s 501C(3) to do various things. In particular, the Minister is obliged, as soon as practicable after making such a decision, to give the affected person, in a way that the Minister considers appropriate in the circumstances, a written notice that sets out the visa cancellation decision and particulars of a "relevant information". This term is defined in s 501C(2) as information (other than non-disclosable information) which the Minister considers:
(a) would be the reason, or part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
58 Unless a relevant exception applies, the Minister is also obliged by s 501C(3)(b) to invite the affected person to make representations about the possible revocation of the original visa cancellation decision. The power of revocation is vested only in the Minister personally (see s 501C(5)).
59 There is a significant limitation on the right of an affected person to make representations to the Minister concerning revocation of a visa cancellation decision. It relates to the fact that, under s 501C(3), the only relevant representations which the affected person can make, and which the Minister is obliged to consider, are representations that are directed to the issue of satisfaction of the character test. As the Full Court stated in Taulahi No 1 at [51]:
The result is that, although s 501C(3) contemplates that a former visa holder whose visa has been cancelled under s 501(3) will have an opportunity to make representations about the revocation of the cancellation decision, the only relevant representations are those that relate to satisfaction of the character test. Because of the definition in s 501(6), however, the application of the character test does not generally allow for any nuanced judgment. Representations about matters that might incline the Minister to revoke the decision as a matter of discretion, even though the former visa holder is unable to satisfy the Minister that he or she passes the character test, cannot under the statutory regime applicable to a decision under s 501(3), form a basis for revocation. Bearing in mind that the rules of natural justice have no application to a decision made under s 501(3), a person whose visa has been cancelled under s 501(3) has therefore no statutorily-conferred opportunity at any stage of the process to persuade the Minister that a visa should not be cancelled on discretionary grounds. The position is different if the Minister proceeds to cancel a visa under s 501(2) of the Migration Act, because in this case the visa holder has an opportunity to inform the Minister of the matters that the visa holder believes are relevant to the Minister's exercise of discretion, even though he cannot satisfy the Minister that he or she passes the character test, so that they may be brought to bear on the Minister's consideration of whether, as a matter of discretion, a visa ought not be cancelled.
60 These features of the statutory framework, particularly the displacement of the requirements of natural justice and the limited scope of the representations which an affected person may make in seeking to have the Minister revoke a visa cancellation decision, highlight the need for the Minister to exercise his important power under s 501(3) of the Act with appropriate care and attention, including by engaging in an active intellectual process in reviewing relevant materials placed before him to assist in the discharge of this significant statutory function.
61 In addition to the features of the statutory scheme just identified, it may be accepted that, despite the personal nature of the power, the Minister was entitled to obtain assistance from departmental officers and members of his private staff, including have them prepare summaries of information for review by him. There are, however, at least three qualifications to that proposition:
(a) any such summary which is materially deficient may give rise to an inference that the decision-making process was not properly conducted by the Minister (see, for example, Williams at [21]-[30]; Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 at [32]-[33] per Tamberlin, Mansfield and Emmett JJ; Roberts v Minister for Immigration and Multicultural Affairs [2004] FCA 739 at [44] per French J; and Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417 (Gbojueh) at [63] per Bromberg J);
(b) the use of a departmental summary may not be appropriate when what is sought to be summarised is a substantive argument (as opposed to an assertion of fact). Attempts to summarise material of this kind may be fraught, because the manner of the summary may cause some of the substantive force which the document may otherwise have had to be lost; and
(c) the Minister's entitlement to have regard to a summary or submission prepared by his Department must take into account any statement or indication in such a document which advises the Minister of the need for him or her personally to consider relevant information in a document which is summarised, as is the case here in respect of the Department's submissions concerning both Mr Taulahi and Mr Carrascalao.
62 We accept the Minister's submission that another relevant matter to take into account in the assessment of whether the Minister did engage in the requisite intellectual process is the extent to which he may have been familiar with the matters given his previous decisions to cancel the visas of Mr Carrascalao and Mr Taulahi (on 17 May 2016 and 8 April 2016 respectively). This consideration is tempered, however, by the length of time which had lapsed since the Minister previously reviewed their cases, and by the fact that the Minister did not provide any evidence of the extent to which he had retained memory of the two cases. Moreover, in contrast with the Minister's previous visa cancellation decisions, no non-disclosable information was apparently relied upon by the Minister on 14 December 2016. The Minister had to turn his mind to the significance of this difference if he drew upon his previous review of the cases.
63 In the light of these principles and considerations, it is appropriate to set out the particular relevant circumstances surrounding the Minister's decisions to cancel the visas of both Mr Carrascalao and Mr Taulahi.