What happened
The appellant, Dori Chamoun, held a Class BF Transitional (Permanent) visa. The Minister, acting personally under s 501(3) of the Migration Act 1958 (Cth), cancelled that visa after reasonably suspecting that Mr Chamoun did not pass the character test by reason of a substantial criminal record (two terms of periodic detention totalling more than 12 months) and after being satisfied that cancellation was in the national interest. Central to the national interest assessment was a NSW Police report described in the Minister's statement of reasons as indicating that Mr Chamoun was "a principal member of a highly organised criminal syndicate involved in importing and supplying large quantities of prohibited drugs to the community" ([3], [38]-[51]).
Section 501(5) expressly provides that the rules of natural justice and the code of procedure in Subdiv AB of Div 3 of Pt 2 do not apply to a decision under s 501(3). The Minister therefore gave no notice of the proposed cancellation and afforded Mr Chamoun no opportunity to comment on the police report or any other aspect of the national interest assessment before the decision was made. After cancellation Mr Chamoun was notified and invited to make representations under s 501C about possible revocation, but the Minister's reasons expressly noted that such representations could bear only on whether Mr Chamoun passed the character test, not on the residual discretion or national interest, and that revocation would in any event be futile because Mr Chamoun could not satisfy the character test ([6]-[8]).
Mr Chamoun commenced judicial review proceedings in the Federal Court seeking, among other relief, certiorari to quash the cancellation decision. He alleged jurisdictional error on the basis that the Minister had misapprehended the nature of the power conferred by s 501(3). Specifically, he contended that the Minister had proceeded on the erroneous understanding that, because natural justice did not apply, he was legally precluded from seeking any further information or submissions from Mr Chamoun even if he wished to do so. The argument drew on the Full Court's earlier decisions in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 (concerning s 501BA) and Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152; 371 ALR 598 (which applied Ibrahim to s 501(3)).
During the hearing before the primary judge, counsel for the Minister filed written submissions that contained, in paragraph 12, an express statement that "if these submissions are not accepted, the Minister accepts that he proceeded on the basis of the alleged misapprehension" ([10], [35]). That paragraph was tendered by Mr Chamoun and received into evidence as an admission pursuant to s 87(1)(a) of the Evidence Act 1995 (Cth). The primary judge accepted that the admission was made and was admissible but held that it was not determinative. After examining the Minister's statement of reasons and the departmental briefing note, his Honour was not persuaded that the Minister had in fact laboured under the alleged misapprehension ([92]-[94]). The application for judicial review was dismissed.
Mr Chamoun appealed to the Full Court on two grounds: first, that the primary judge erred in finding that the Minister had considered it open to him to obtain more material; second, that the primary judge erred in not treating the admission as conclusive of the Minister's state of mind. The Minister filed a notice of contention challenging the primary judge's acceptance that the Ibrahim construction applied to s 501(3) and his Honour's alternative finding that any error would have been material. The Full Court (Katzmann, Mortimer and Bromwich JJ) unanimously dismissed the appeal, holding that the primary judge had made no error in his treatment of the admission or in his application of the law ([23]-[28], [52], [82]-[83]). Their Honours also affirmed that the Ibrahim/Burgess construction of the power was correct.
Why the court decided this way
The Full Court's reasoning proceeded in two linked stages. First, it confirmed the legal principle that a statutory statement that natural justice does not apply does not impliedly prohibit the Minister from choosing to seek further information if he or she considers it would assist the formation of the required state of satisfaction. Katzmann J adopted the primary judge's analysis at [81] that it would be "a strange conclusion, as a matter of statutory construction" to hold that the Minister could not seek further material even where he wished to do so ([13], [26]). Mortimer and Bromwich JJ elaborated that the principle does not impose an obligation to afford procedural fairness; rather, it recognises a facultative power to request information (from the visa holder, the Department or third parties) to ensure the Minister has sufficient probative material to support findings on national interest or other discretionary matters ([78]-[81]). The Court rejected the Minister's contention arguments that the binary choice between s 501(2) and s 501(3), or the existence of s 501C revocation, altered that construction. Those mechanisms were held to be facilitative rather than exhaustive or limiting ([13], [76]-[82]).
Second, the Court held that, on the facts of this case, the Minister had not been shown to have laboured under any such misapprehension. The admission in the Minister's written submissions was carefully analysed. Mortimer and Bromwich JJ noted that the concession was made after Ibrahim and Nguyen but before Burgess, and appeared to reflect an overly broad reading of Ibrahim that did not appreciate the factual distinctions later drawn in Burgess ([35], [50]). Citing Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 138-139 and 143-144, their Honours held that an informal admission, once admitted, remains open to explanation or contradiction and its weight is a matter for the tribunal of fact ([46]-[49]). The primary judge was therefore not only entitled but obliged to weigh the admission against the Minister's statement of reasons and the departmental briefing note.
Those reasons were "relevantly indistinguishable" from the reasons upheld by the majority in Burgess ([25]). They correctly recorded that s 501(3)(b) enabled cancellation without natural justice, that s 501(5) displaced the rules of natural justice, that revocation under s 501C could only address the character test, and that the Minister had consciously chosen not to proceed under s 501(2) which would have required notice ([21], [40]). The Court reiterated the Burgess observation that "the mere absence of a reference in the material to there being an option to accord natural justice does not of itself support an inference that the Assistant Minister erroneously believed he had no such option" ([36]). The departmental briefing note's statement that the person "is not given notice... and is therefore not afforded any opportunity" was read as describing ordinary practice rather than asserting a legal prohibition on the Minister seeking information if he desired it ([40]).
On materiality, the Court held that had the misapprehension been established it would have been jurisdictional. The NSW Police report occupied a central place in the reasons: the Minister described it as "detailed and credible", accepted its allegations of high-level syndicate involvement, and relied on it to conclude that the appellant had engaged in other serious conduct ([51], [61]-[64]). Because Mr Chamoun had never seen the report, there was a realistic possibility that, had the Minister appreciated he could invite a response, he might have done so and might have given different weight to the police opinions. The Court emphasised that it was not required to find it more likely than not that the outcome would have differed, only that the error deprived Mr Chamoun of the realistic (not fanciful) possibility of a different outcome ([66]-[69]). This analysis drew directly on the Full Court's earlier reasoning in Nguyen at [45]-[51], which was applied to the facts of the present case.
The Court was therefore satisfied that the primary judge had made no error in admitting the statement, weighing it, and concluding that no jurisdictional error had been established. The appeal was dismissed with costs ([28], [83]).
Before and after state of the law
Before Ibrahim, Burgess and the present case, the law was unclear whether a statutory provision stating that natural justice "does not apply" to a particular power also impliedly prohibited the Minister from voluntarily seeking further information. Some departmental drafting appeared to treat the provisions as creating an absolute binary choice. Single judges had reached differing views on whether a misunderstanding on that point could constitute jurisdictional error.
Ibrahim resolved the issue for s 501BA(2) and (3). The Full Court held that the Assistant Minister had misunderstood the nature of the power by assuming he could not invite submissions even if he wished to do so; that misunderstanding was material because the reasons showed the Assistant Minister was conscious that relevant circumstances might have changed since the earlier Tribunal decision ([31]). Burgess extended that construction to s 501(3) and s 501(5), unanimously on the legal principle although the majority (White and Charlesworth JJ) found on the facts that no misapprehension had been proved. The High Court refused special leave to appeal from Burgess, stating there was no reason to doubt the correctness of the decision ([9]).
The present judgment confirms and applies that position. After Chamoun, the law is settled that neither s 501(5) nor s 501BA(3) prohibits the Minister from seeking further information. A decision-maker who proceeds on the opposite understanding will commit jurisdictional error provided the error is material. The Court has also clarified the evidentiary approach to be taken where an admission is tendered: such an admission is admissible but must be weighed in context and cannot override a careful examination of the reasons actually given by the Minister ([45]-[52]). The judgment reinforces that materiality is assessed objectively by asking whether the error could realistically have led to a different outcome, without the reviewing court straying into the merits ([56]-[70]).
The practical consequence is that departmental briefing notes and Ministers' reasons must now be drafted with an eye to demonstrating that the decision-maker understood the facultative nature of the power to seek information. Failure to do so may expose decisions to successful judicial review, particularly where, as here, critical adverse material (such as an unseen police report) forms a substantial part of the reasoning.
Key passages with plain-English translation
Paragraph [13] (primary judge, adopted by Katzmann J and Mortimer and Bromwich JJ): "it would be a strange conclusion, as a matter of statutory construction, to hold that the Minister could not, although he might not be obliged to, seek further material from the applicant even where he wished to do so in relation to a particular issue."
Plain English: It would be odd to read the Act as saying the Minister is banned from asking for extra help even when he thinks it would improve his decision. The law removes any duty to give a hearing, but it does not stop the Minister from asking questions if he wants answers.
Paragraph [36] (Mortimer and Bromwich JJ, quoting Burgess): "the mere absence of a reference in the material to there being an option to accord natural justice does not of itself support an inference that the Assistant Minister erroneously believed he had no such option."
Plain English: Just because the written reasons do not expressly say "I realise I could still ask for comments if I want to" does not prove the Minister thought he was forbidden to ask. Silence is not the same as a positive mistake.
Paragraph [52] (Mortimer and Bromwich JJ): "his Honour was not only entitled but obliged to assess the weight to be given to an admission of that kind, including its nature and the circumstances in which it came to be made. His Honour's conduct of that weighing exercise was a careful, but otherwise unremarkable exercise in the evaluation of evidence."
Plain English: Once a concession is in evidence, the judge must decide how much importance to give it. Looking at the timing (pre-Burgess), the context (a legal concession rather than a direct statement by the Minister), and the actual reasons was the ordinary, correct way to do that job.
Paragraph [66] (Mortimer and Bromwich JJ): "We are not required to be satisfied it is more likely than not he would have exercised the power he did not appreciate he had, only that there is a realistic possibility he might have."
Plain English: We do not have to decide that the Minister probably would have changed his mind. It is enough that there was a real (not imaginary) chance that knowing he could ask for a response to the police report might have led him to do so and might have altered the outcome.
Paragraph [81] (Mortimer and Bromwich JJ, endorsing the primary judge): "the choice is facilitative, and I would not regard it as limiting the Minister's powers."
Plain English: The fact that the Act gives the Minister a choice between two routes (one with a hearing, one without) is meant to help him make good decisions, not to tie his hands so he cannot gather extra information under the "without hearing" route.
What fact patterns trigger this precedent
This precedent is triggered whenever a visa cancellation (or refusal) is made personally by the Minister under s 501(3) or s 501BA(2) and the applicant alleges that the Minister misunderstood the scope of the power by believing that the statutory exclusion of natural justice also excluded any possibility of voluntarily seeking further information. The critical factual ingredients are:
- Reliance on adverse material that the visa holder has not seen or had an opportunity to address (for example, a police intelligence report, as in [38]-[51] and [61]-[64] here);
- Reasons that are silent on the question whether the Minister appreciated the facultative power to invite submissions;
- An admission or concession in litigation that the Minister "proceeded on the basis of the alleged misapprehension";
- A national interest or residual discretion assessment that is not logically independent of the matters on which further comment might have been sought.
The precedent will not assist an applicant where the reasons positively demonstrate that the Minister turned his mind to the option of seeking further information and decided against it, or where any error is immaterial because the outcome was inevitable on other independent grounds (contrast the logically independent error in Hossain). It is also confined to personal exercises of power by the Minister; delegate decisions under s 501(2) or mandatory cancellations under s 501(3A) raise different considerations.
Practitioners should scrutinise the departmental briefing note and the Minister's statement of reasons for language that might be read as treating the exclusion of natural justice as a complete barrier to any inquiry. Where such language appears, the precedent supplies a powerful ground of review provided materiality can be shown by reference to the centrality of the unseen material.
How later courts have treated it
The judgment itself treats Burgess and Ibrahim as correctly decided and as representing the law on the construction point ([74]). It treats the majority reasoning in Burgess on the absence of demonstrated error as persuasive and applies it directly to materially identical reasons ([25], [40]). The High Court's refusal of special leave in Burgess is noted as confirming that there is no reason to doubt the correctness of the Full Court's approach ([9]).
Although the judgment is recent (15 April 2020), its careful treatment of Lustre Hosiery on the weight of admissions has already reinforced the orthodox position that informal concessions in submissions are not conclusive of administrative decision-makers' states of mind. Subsequent courts are likely to cite the detailed evidentiary analysis at [45]-[52] whenever an admission is tendered in a judicial review proceeding concerning the Minister's state of mind. The materiality reasoning at [54]-[70], which builds on Nguyen and applies the "realistic possibility" test from Hossain and SZMTA without requiring the applicant to prove what he would have said, is likely to be followed in other cases where critical adverse material has not been put to the visa holder.
The judgment has resolved earlier divergences between single judges about whether the Ibrahim principle applied to s 501(3). It makes clear that the principle is not limited to s 501BA and that arguments seeking to distinguish the two provisions on the basis of the structure of s 501 or the existence of s 501C will not succeed ([76]-[82]). Later courts can therefore treat the construction point as settled unless a differently constituted Full Court or the High Court revisits it.
Still-open questions
First, the precise evidentiary threshold for proving that a Minister has in fact appreciated the facultative power remains somewhat open. The Court emphasised that the reasons in this case and in Burgess did not suggest error, but it did not prescribe a form of words that would be sufficient to demonstrate understanding. Future cases may test whether a boilerplate sentence in the briefing note or reasons is enough, or whether something more contextual is required when highly prejudicial unseen material is central.
Second, the interaction with s 501(3A) mandatory cancellation remains unresolved in detail. The Court accepted that implying a power to seek information into the mandatory provision would be "illogical" (76), but left open exactly how that affects the construction of the discretionary power. If a visa holder facing mandatory cancellation under s 501(3A) is later considered for discretionary action, questions may arise about whether information gathered voluntarily under the discretionary power can be used in the mandatory context.
Third, the limits of "realistic possibility" in the materiality assessment are not exhaustively defined. The Court was satisfied on the facts that the unseen NSW Police report created such a possibility, but it is not yet clear how far a reviewing court may go in hypothesising what the Minister might have done with hypothetical further information without straying into merits review. The judgment warns against prejudgment based on the actual reasons ([70]), but the precise boundary between legitimate reconstruction and impermissible merits assessment is likely to be tested in future litigation.
Finally, the weight to be given to an admission made by counsel on instructions after a change in the law (for example, after a later Full Court decision) remains a matter of case-by-case evaluation. The Court here gave the admission reduced weight because it predated Burgess, but the position may differ where an admission is repeated after the law is settled. These questions will no doubt be explored in the steady stream of s 501 litigation that continues to reach the Federal Court.