Engi v Minister for Home Affairs

Federal Court of Australia|2019-07-11|Before: Markovic J

The application for an extension of time lodged with the Court on 21 December 2018 and accepted for filing on 28 December 2018 be dismissed.
The applicant pay the respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 The applicant is a citizen of New Zealand. He arrived in Australia on 23 August 1995 at the age of seven and was granted a Class TY subclass 444 Special Category (Temporary) visa (Visa). 2 On 7 October 2016 the Visa was cancelled by a delegate of the respondent (Minister) under s 501(3A) of the Migration Act 1958 (Cth) (Act) (Original Decision), which requires the Minister to cancel a visa if he or she is satisfied that the person does not pass the character test. The delegate was satisfied that the applicant did not pass the character test as he has a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Act (see [10] below). That was because on 17 June 2016 the applicant was convicted of assault occasioning actual bodily harm and sentenced to 12 months' imprisonment. 3 On 11 October 2016 the applicant sought revocation of the Original Decision. On 18 November 2016 a delegate of the Minister decided not to revoke the Original Decision. 4 The applicant sought a review of the delegate's decision not to revoke the Original Decision in the Administrative Appeals Tribunal (Tribunal). On 12 September 2017 the Tribunal set aside the delegate's decision not to revoke the Original Decision and substituted a decision revoking the Original Decision. 5 On 27 June 2018 the Minister decided pursuant to s 501BA of the Act to set aside the Tribunal's decision to revoke the Original Decision and to cancel the Visa (Minister's Decision). On 27 September 2018 the applicant was notified of the Minister's Decision by letter delivered by hand to the applicant (Notification Letter) which enclosed, among other things, the Minister's decision record and his statement of reasons (Reasons). 6 On 21 December 2018 the applicant lodged an application for an extension of time (Extension of Time Application) to bring an application for judicial review of the Minister's Decision in this Court. The draft originating application for judicial review (Draft Originating Application) setting out the proposed grounds of review is annexed to an affidavit affirmed by the applicant's solicitor, Raymond Charles Turner, on 21 December 2018. 7 At the hearing the matter proceeded on the basis that I would hear the Extension of Time Application and full argument in support of the grounds pressed by the applicant in the Draft Originating Application at the same time such that, if the Extension of Time Application was allowed, I could proceed directly to determine the judicial review application without the need for a further hearing.

Statutory framework 8 Before proceeding further it is convenient to set out the statutory framework within which the Minister's Decision was made. 9 Section 501BA of the Act provides: Cancellation of visa - setting aside and substitution of non-adverse decision under section 501CA (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person. Action by Minister - natural justice does not apply (2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or (ii) paragraph 501(6)(e); and (b) the Minister is satisfied that the cancellation is in the national interest. (3) The rules of natural justice do not apply to a decision under subsection (2). Minister's exercise of power (4) The power under subsection (2) may only be exercised by the Minister personally. Decision not reviewable under Part 5 or 7 (5) A decision under subsection (2) is not reviewable under Part 5 or 7. 10 The "character test" is relevantly defined in s 501 as follows: (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or …

minister's decision 11 The Minister set out the requirements of s 501BA of the Act and observed that it enabled him to set aside the Tribunal's decision and cancel a visa granted to a person where he is satisfied that the person does not pass the character test, relevantly because of the operation of s 501(6)(a) on the basis of s 501(7)(c), and he is satisfied that the visa cancellation is in the national interest. 12 The Minister was satisfied that the applicant did not pass the character test. This was because on 17 June 2016 the applicant had been sentenced to a term of 12 months' imprisonment. 13 The Minister then considered whether cancellation of the Visa was in the national interest. He noted that the term "national interest" is not defined for the purposes of s 501BA of the Act but considered that it could include, among other things, the seriousness of the criminal conduct, having regard to the circumstances and nature of the conduct; any disposition imposed by the court in respect of the conduct; the risk of the person reoffending; and the harm that could flow if such a risk eventuated. 14 The Minister then considered each of these matters. 15 In relation to the seriousness of the applicant's criminal conduct and disposition imposed by the court the Minister found that: (1) the applicant's offending which was the subject of his conviction on 17 June 2016 was serious particularly as the applicant resorted to violence when confronted while he was stealing items from a car. In making that finding the Minister acknowledged that, while the applicant's offending was serious, it did not constitute offending at the upper end of seriousness; (2) the applicant's offending which was the subject of his conviction on 25 June 2010 of "assault occasioning abh in company of others" and for which he was sentenced to a $2,000 fine and a two-year good behaviour bond was serious because the offence involved violence; (3) the applicant had engaged in domestic violence related offending resulting in convictions on 27 November 2014 of "destroy or damage property (dv)" and "stalk/intimidate intend fear physical etc harm (domestic)" for each of which he received a six-month good behaviour bond. As a result of further offending by the applicant, those offences were called up and he was resentenced to four months' imprisonment for each offence. The Minister rejected the Tribunal's characterisation of the applicant's domestic violence offences and found that they were very serious; (4) the applicant's other criminal convictions which took place between 2006 and 2016 for, amongst other things, multiple larceny, break and enter and driving offences, were, as the Tribunal had found, serious and the applicant's criminal history showed that his offending had increased in seriousness; and (5) the sentences of imprisonment received by the applicant were a further indication of the seriousness of his offending given that dispositions involving incarceration are the last resort in the sentencing hierarchy. 16 In relation to the applicant's risk of reoffending, the Minister considered a range of factors that lowered the applicant's likelihood of reoffending including "his remorse, his steps towards rehabilitation and the support from his family and social networks". The Minister also considered the "possible salutary effect of both" the applicant's first sentence of imprisonment and the experience of visa cancellation and acknowledged that he had not reoffended since being in the community since September 2017. However, the Minister noted that the applicant had committed his most recent offences while subject to good behaviour bonds; previous court dispositions, including non-custodial sentences, failed to deter the applicant from further offending; the applicant had only been present in the community for a relatively short time and any progress towards rehabilitation and abstinence from alcohol and drugs in the long-term, without supervision, remained untested; and the applicant had failed a prescribed drug test in August 2016, despite being within the structure of a supervised environment. 17 The Minister found that there remained an ongoing likelihood that the applicant would reoffend, particularly if faced with stressors such as family issues and, if the applicant was to engage in further criminal conduct of a similar nature, it may result in physical, psychological and/or financial harm to a member of the Australian community. 18 The Minister concluded, having regard to the applicant's criminal conduct and the risk of him reoffending, that he was satisfied that it was in the national interest to cancel the Visa. 19 The Minister's findings that the applicant did not pass the character test and that it was in the national interest to cancel the Visa enlivened the discretion to set aside the Tribunal decision and cancel the Visa. The Minister thus considered whether he should exercise that power, having regard to the following matters: (1) the best interests of the applicant's two minor children, aged six and 11 at the time, to which the Minister gave primary consideration. The Minister noted the relationship between the applicant and his children, that the applicant's absence may have led to behavioural issues with one of the children, the Tribunal's finding that the best interests of the applicant's children would be served if he was able to remain in Australia and that separation of the children from their father would be detrimental. The Minister found that it was in the best interests of the applicant's children not to cancel the Visa as it would deprive them of the opportunity to continue to have a direct and personal relationship with their father which would cause them significant emotional, practical and financial hardship. The Minister made a similar finding in respect of the applicant's minor nieces and nephews but gave their interests less weight in light of the absence of any information to suggest that the applicant had any care and control responsibilities in relation to them; (2) the Minister considered the expectations of the Australian community. He found that the applicant had breached the trust of the Australian community as he had been convicted of a number of offences, including violent and domestic violence related offences. The Minister concluded that in light of the serious nature of the offending the Australian community would expect that the applicant should not hold a visa; (3) the Minister considered the strength, nature and duration of the applicant's ties to Australia. He noted that the applicant arrived in Australia at the age of seven and, because the applicant had lived most of his life in Australia, the Australian community may afford a higher tolerance of his criminal conduct. The Minister accepted that the cancellation of the Visa would have a considerable and detrimental impact upon the applicant's family, in particular his two minor children and his parents. The Minister concluded that the applicant has strong familial, social, community and employment ties in Australia and has made a positive contribution to the Australian community by reason of his employment and involvement in the community through sports; and (4) the Minister considered the extent of impediments to the applicant if removed from Australia to his home country, New Zealand. The Minister took into account the applicant's statement that he has lived in Australia for over 20 years and that all of his life is here, including his work and family, and the Tribunal's finding that the impact on the applicant of returning to New Zealand would be "dramatic", having regard to the separation from his family. The Minister found that the applicant is likely to experience significant hardship in re-establishing himself and adjusting to life in New Zealand, particularly in the absence of his two minor children. The Minister accepted that the applicant's mental health may deteriorate, at least in the short term, and that the support that he could get from his maternal grandmother, who resides in New Zealand, would be limited. Notwithstanding these matters, the Minister found that New Zealand has comparable standards of health care, social welfare and housing support to Australia and that, as a New Zealand citizen, the applicant would have a level of access to these services similar to other citizens of that country. The Minister also considered that the applicant had worked extensively in Australia and may have some relevant and transferable skills to assist him with employment prospects in New Zealand, thus diminishing any financial hardship and, given similarities between the two countries, the applicant is unlikely to experience language or cultural difficulties. 20 Having considered all of the information before him, the Minister found that the considerations favouring non-cancellation, in particular the best interests of the minor children treated as a primary consideration, the applicant's ties to Australia and the hardship to him and his family, were outweighed by the national interest considerations. Accordingly, the Minister decided to exercise his power under s 501BA of the Act to set aside the Tribunal's decision and to cancel the Visa.

extension of time application 21 The applicant seeks an order that the Court extend time to file his application for judicial review of the Minister's Decision pursuant to s 477A(2) of the Act. In support of that application the applicant relies on an affidavit affirmed by his mother, Katie Engi, on 21 December 2018. 22 In her affidavit Mrs Engi gives evidence about the reasons for the delay in the commencement of the proceeding. She says that on or about 27 September 2018 she was given a copy of the "notice of visa cancellation under section 501BA of the Migration Act 1958". On or about 8 October 2018 Mrs Engi lodged an application for review of the Minister's Decision in the Tribunal because that was what they had done when the Visa was cancelled on the previous occasion. On 23 October 2018 the Tribunal advised her that it had no jurisdiction to review the Minister's Decision. 23 Mrs Engi deposes that on or about 25 October 2018 she contacted Legal Aid to seek a referral to lawyers and was informed by Legal Aid that they would look at the matter to see if they could assist. Accordingly, Mrs Engi sent the documents to Legal Aid. On 26 November 2018 Legal Aid provided Mrs Engi with forms to be taken to the applicant, who was in Villawood (in immigration detention), to sign. Mrs Engi's husband took the forms to Villawood on 30 November 2018 and, upon his return, informed Mrs Engi that he had not been permitted to take the forms to the applicant to be signed and was told that a lawyer had to do so. 24 Upon making inquiries of a barrister, Mrs Engi was referred to Mr Turner. She met with Mr Turner on 20 December 2018, having contacted his firm on 19 December 2018.

Legal principles 25 Section 477A(1) of the Act requires that an application to this Court for a remedy to be granted in the exercise of the Court's original jurisdiction under s 476A(1)(b) or (c) in relation to a migration decision be made within 35 days of the date of the migration decision. The term "date of the migration decision" has the meaning given by s 477(3) of the Act: s 477A(3). Section 477(3) of the Act provides four alternate definitions of "date of the migration decision" depending on the circumstances. For the purposes of the Minister's Decision "date of the migration decision" means the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate: s 477(3)(d). 26 Section 477A(2) provides that the Court may extend the 35 day period as it considers appropriate if an application has been made specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 27 The principles relevant to when the Court will exercise the discretion to extend time are well settled. They were recently summarised in Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [16]-[17] where Thawley J said: 16 In considering whether to exercise the discretion to extend time under s 477A(2), and recognising that the discretion is unconfined and that each case turns on its own facts, relevant considerations generally include: the length of the delay; the applicant's explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted: Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26] (Siopis, White and Perry JJ); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32] to [39], per Griffiths J (with whom Edmonds J agreed). 17 The assessment of the prospects of success of the proposed review arises in the context of an interlocutory application for an extension of time under s 477A(2), and caution is required in assessing the merits at that interlocutory stage of the proceeding, and in determining what significance or weight to give to the resulting conclusion: Mentink at [37] and [38], per Griffiths J, referring to the decisions of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 and Katzmann J in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111]; see also: MZABP v Minister for Immigration and Border Protection (2014) 242 FCR 585 at [62]-[63], per Mortimer J. In considering the question of merits, the applicant's proposed grounds of review should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground: Guo at [27]. If it appears from such an examination that the proposed appeal has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time. I proceed with the analysis on this basis. 28 The Minster opposes the grant of an extension of time. In doing so he does not contend that he would suffer any prejudice if an extension was granted. I thus consider the balance of the considerations, namely the delay and the prospects of success of the application, below.

Delay 29 It was common ground that the 35 day period in which the applicant was required to make his application for judicial review of the Minister's Decision expired on 1 November 2018. As the Extension of Time Application was lodged with the Court on 21 December 2018, it was 50 days out of time. Two issues arise for consideration. First, the adequacy of the explanation for the delay; and secondly, an issue raised by the applicant about the Notification Letter.

Explanation for the delay 30 The Minister submitted that the explanation for the delay is unsatisfactory. He contended that Mrs Engi's evidence raises more questions than it answers; making an application to the wrong body for review is not a satisfactory explanation for delay; and that there were unexplained gaps in the evidence about the discussion with Legal Aid, who provided forms that were not signed, and the further three weeks that it then took to contact Mr Turner and commence this proceeding. 31 As the Minister submitted the delay is not insignificant. However, contrary to the Minister's submissions, in my opinion, and despite some unexplained gaps in the evidence, on balance, the explanation provided for the delay is not unsatisfactory and should be accepted. 32 The delay was primarily born of a combination of two things. First, a misunderstanding on the part of the applicant's mother as to the correct forum in which to commence the proceeding. She understandably took the same steps as were taken in relation to the Original Decision. Secondly, upon receiving documents from Legal Aid, a practical difficulty in having them signed. 33 As to the first matter, the Notification Letter included the following: The decision to cancel your visa has been made by the Minister. While the Administrative Appeals Tribunal has the power to review decisions to cancel or refuse the grant of a visa under s501 of the Migration Act made by delegates of the Minister, it cannot review decisions made by the Minister personally. You are free to seek your own independent legal advice regarding your position, if you wish. That Mrs Engi was confused by the process to follow is understandable. The Notification Letter refers to the power to review the decision, a phrase which may mean little to a person who is not legally trained. In any event it does not in its terms tell a person affected by the decision where he or she can seek review but suggests that the person seek legal advice. Despite that suggestion, Mrs Engi did not seek legal advice in the first instance and proceeded to apply to the Tribunal for review. By the time Mrs Engi became aware of the fact that the Tribunal did not have jurisdiction, the 35 day period had almost expired. 34 As to the second matter, Mrs Engi then attempted to obtain legal advice and was provided with documents by Legal Aid for signing by the applicant who was at the time in immigration detention. The nature of those documents is not explained. However, Mrs Engi's husband was not permitted to take the documents to the applicant for signing. It was thereafter that Mrs Engi contacted the applicant's current solicitor. Once contact was made, the proceeding was commenced promptly. 35 An unsatisfactory aspect of the explanation for the delay is the three week period that elapsed before Mrs Engi contacted and met with Mr Turner. However, I accept that proper and sufficiently diligent attempts were made to commence the proceeding in time.

Notification of the Minister's Decision 36 As set out above, notice of the Minister's Decision was provided by the Notification Letter which was undated, delivered by hand and from a person identified as "Shiv" with "Position Number: 60046425". The applicant submitted that, because the Notification Letter was not issued by the Minister, nor was there evidence that it was given by an authorised delegate of the Minister, it was invalid and there was thus no written notice of the decision. The applicant contended that it followed that time had not commenced to run for the purposes of s 477A(1) of the Act. 37 In support of this argument, the applicant relies on s 501G of the Act which relevantly provides: (1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; or (ba) not revoke a decision to cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non‑disclosable information) for the decision; and … (4) A failure to comply with this section in relation to a decision does not affect the validity of the decision. (emphasis added.) 38 It was not in issue that, subject to the question of whether notification had been given in compliance with s 501G, the Notification Letter otherwise complied with the substantive requirements of s 501G of the Act. 39 The applicant's argument cannot succeed. The applicant has not established that the Notification Letter does not comply with s 501G of the Act. 40 There was no evidence before me that the signatory to the Notification Letter was not an authorised delegate of the Minister. To that end, at the hearing the applicant called on a notice to produce dated 29 May 2019 addressed to and served on the Minister which, I was informed from the bar table, sought production of all delegations of the Minister under s 501BA(2) of the Act. The Minister had nothing to produce in answer to the notice to produce. This was not surprising given that s 501BA(4) expressly provides that the power under s 501BA(2) must be exercised personally by the Minister. The applicant did not seek to elicit any other evidence about the status of the signatory to the Notification Letter. 41 True it is that the notification of a decision of the Minister made under any of the sections specified by s 501G(1) of the Act is a duty imposed on the Minister by that section. But that is not to say that the Minister must personally perform that function. In contrast to other sections of the Act, including s 501BA, s 501G does not require in terms that only the Minister can perform the function of notification as prescribed by s 501G. It is silent on that issue. Similarly, the definition of "date of the migration decision" for the purposes of s 477A(1) does not mandate that the "written notice" referred to therein be in any particular form or be signed by any particular person. 42 It is well established that a Minister may act through an authorised officer of his or her department when performing administrative functions, which the notification of a decision of the type specified in s 501G must be. In O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 (O'Reilly) the High Court considered, among other things, the validity of notices issued under s 264 of the Income Tax Assessment Act 1936 (Cth) and whether that section required the Commissioner or his delegate to personally sign such notices in writing. In considering that question at 11 Gibbs CJ said: … The answer to the question whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: cf. Re Reference under Ombudsman Act, s. 11, per Brennan J. However, I should mention the line of authorities which commenced with Carltona Ltd. v. Commissioners of Works and which are discussed in In re Golden Chemical Products Ltd. Those authorities established that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department. This result depended in part on the special position of constitutional responsibility which Ministers occupy, and in that respect these authorities are distinguishable from cases such as the present. However, they also rest on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally. … (footnotes omitted.) 43 On that issue, to similar effect, Wilson J at 30-31 referred to the description of the "necessity in modern government for the shared performance of duties short of delegation" provided by Lord Greene M.R. in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563 as follows: … It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. 44 I did not understand the applicant to take issue with that principle. In his supplementary submissions, which he was given leave to file at the conclusion of the hearing, the applicant also referred to the decision in O'Reilly where at 11 Gibbs CJ said: There can be no doubt that as a general proposition at common law a person sufficiently "signs" a document if it is signed in his name and with his authority by somebody else, but if by statute a document has to be personally signed the duty of signing cannot be delegated to a third person: see London County Council v. Agricultural Food Products Ltd. Exactly the same principles apply when the power is given by statute to a designated person to issue a notice. The notice may be given by the authorized agent of the designated person, whose act will be the act of the principal, unless the statute on its proper construction requires the notice to be issued only by the person who is designated. (footnote omitted.) 45 Relying on this passage the applicant submitted that as s 501G of the Act provides that the Minister "must give the person" a notice including the specified documents the legislation means that the Minister (or his delegate) is the only person who can give the required notice. 46 The Notification Letter itself was not provided by the Minister but, I would infer, by an authorised officer of his department under his authority. It was from a person who described him or herself as "Shiv" and who specified a position number. The applicant accepts that the Minister may authorise another person to give the notice required by s 501G of the Act. In this case there was no evidence to establish that the person who signed the Notification Letter was not authorised to do so. Accordingly, the applicant has not established that the Notification Letter was not valid. It follows that the applicant has similarly not established that time had not started to run pursuant to s 477A(1) of the Act.

Draft Originating Application - prospects of success 47 The Draft Originating Application includes three grounds of review but the applicant only presses grounds 1 and 2, which are as follows: 1. Abuse of Power Particulars a. The Respondent used the power in the Migration Act 1958 s 501BA to review and set aside the decision of the Administrative Appeals Tribunal. b. The power in s 501BA is intended only to cancel a visa if that cancellation is in the national interest. 2. Failure to exercise discretion Particulars a. The Respondent by the reasoning set out in [112] and [114] of the Statement of Reason has effectively concluded that in no circumstances could the Applicant's visa not be cancelled. b. Such reasoning is a failure to exercise the discretion contained in s 501BA of the Act.

Ground 1 48 By the first ground the applicant contends that the Minister abused his power. The alleged abuse of power concerns the Minister's findings in relation to s 501BA(2)(b) of the Act. It is said that the power in s 501BA is intended only to cancel a visa if that cancellation is in the national interest. 49 The applicant put his case in support of ground 1 in two ways. 50 First, the applicant submitted that in considering the material that was before him the Minister could not have attained the requisite state of satisfaction that it was in the "national interest" to cancel the Visa. He said that the Minister erred when considering the applicant's criminal history and forming the ultimate conclusion that the national interest considerations, primarily the seriousness of the applicant's criminal conduct, outweighed the other strong findings made in support of the applicant being permitted to continue to reside in Australia. The applicant contended that the Minister's satisfaction was not attained reasonably. 51 The applicant also submitted that the Minister gave disproportionate weight to the applicant's criminal conduct when assessed against the consequences and impact upon the applicant's two minor children, his family members and the countervailing community interests. While the applicant does not seek to downplay the nature of his offences, he contended that the offence giving rise to the mandatory cancellation was not premeditated and was characterised by the Tribunal as "reckless". The applicant also said that the domestic violence offence, of itself, does not give rise to a mandatory cancellation and again, while not devaluing the nature of such incidents, was a one-off incident as part of a "stormy relationship" between the applicant and his then partner. 52 Secondly, the applicant submitted that in considering the "national interest" the Minister was obliged to take into account the most up-to-date information that was available to him. The applicant relied on the dissenting judgment of Rares J in DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [12], [13] and [25] where his Honour said: 12. It is important to understand how the power under s 501BA can be exercised. In Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350 at 363-364 [57], Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said that the concept of the national interest in s 501(3)(d) (which is an analogue of s 501BA(2)(b)) "although broad and evaluative, is not unbounded." They said: And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself" [R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158]". (emphasis added) 13. The power conferred on the Minister personally in s 501BA is exceptional. That is because the time at which he can exercise that power arises only after two previous decision-makers have each exercised separate powers under the Act. … … 25. The obligation of a decision-maker to take into account all relevant considerations is not an aspect of the rules of natural justice. Rather, as Mason J explained, the obligation arises because the statutory source of the power being exercised requires the decision-maker to have regard to (and, so take into account) a consideration as an essential step in the procedure that must be followed in arriving at a decision. This includes an obligation to have regard to the most up to date information before him: Peko-Wallsend 162 CLR at 44-45; Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 46-47 [39]-[42] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 452-453 [73]-[77] per Kenny, Griffiths and Mortimer JJ; SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571-572 [27]-[32] per Rares J. 53 The up-to-date information which the applicant says the Minister should have taken into account comprises the matters that the Minister addressed in considering the exercise of his discretion to set aside the Tribunal decision and cancel the Visa. That is, the best interests of the minor children, expectations of the Australian community, the strength, nature and duration of the applicant's ties to Australia and the impediments to the applicant if he were to be removed. The applicant said that those matters were not taken into account by the Minister when determining what was in the national interest. The applicant explained that it was not his contention that if the Minister had taken those additional matters into account he would have concluded that it was not in the national interest to cancel the Visa but that those matters could have led to a different outcome. The applicant submitted that the failure to take those matters into consideration at all leads to the inevitable conclusion that the Minister did not act reasonably in satisfying himself that it was in the national interest to cancel the Visa. 54 Ground 1 has no merit. 55 It was not in dispute that the power in s 501BA to cancel a visa can only be exercised where the Minister is satisfied of the two preconditions in s 501BA(2)(a) and (b), namely that the person does not pass the character test and cancellation of the person's visa is in the national interest, and that it is for the Minister to form the necessary state of satisfaction as to whether cancellation is in the national interest. 56 Here the Minister properly understood the operation of s 501BA and that he had to be satisfied of the preconditions in s 501BA(2)(a) and (b) before he could set aside the Tribunal's decision and cancel the Visa: see [7] of the Reasons. 57 The applicant acknowledged that the expression "national interest" is one of considerable breadth. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 a Full Court of this Court (Griffiths, White and Bromwich JJ) considered the meaning of that phrase. At [156] their Honours said: There can be no doubt that, in this particular statutory context, the expression "national interest" is, like the expression "public interest", one of considerable breadth and essentially involves a political question which was entrusted to the Minister. For example, in Pilbara at [42], in the context of construing a statutory discretion which vested a power in the Minister to declare a service under Pt IIIA of the Trade Practices Act 1974 (Cth), where one of the criteria was whether access, or increased access to a service "would not be contrary to the public interest", French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: It is well established that, when used in a statute, the expression "public interest" imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is "neither arbitrary nor completely unlimited" but is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view". It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office. (footnotes omitted and emphasis in original.) 58 A similar power is conferred on the Minister by s 501A of the Act, and decisions regarding the scope of that section have been held to apply to s 501BA: see Anaki v Minister for Immigration and Border Protection [2018] FCA 77 (Anaki) (affirmed on appeal in Anaki v Minister for Immigration and Border Protection [2018] FCAFC 195). As Burley J said in Anaki at [12]: The broad scope of the power conferred on the Minister by the relevantly similar power under s 501A(2) has been remarked on in many cases. In Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 Bromberg J helpfully summarised the effect of the authorities as follows: 43. The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 at [89] (French, O'Loughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [12] and [32] (Katzman J); Maurangi v The Honourable Chris Bowen MP, Minister for Immigration and Citizenship [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gummow J); Re Paterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J). 44. The exercise calls for a broad evaluative judgment. It calls for the Minister's satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2). 59 These authorities establish that the Minister has a wide discretion to determine the factors relevant to the question of whether cancellation is in the national interest. The identification of the matters that may be taken into account in determining that question are left largely for the Minister. The Minister identified the matters he considered to be relevant to the national interest at [24] of the Reasons to include the seriousness of the criminal conduct, the risk of reoffending and the harm that could flow if that risk eventuated. The Minister considered each of those matters and reached his conclusion that it was in the national interest to cancel the Visa: [72] of the Reasons. It is not for this Court to prescribe the matters that the Minster should take into account in considering the national interest, which is what the applicant urges ought to be done. 60 In support of his contention that it was open to the Minister to consider factors that he considered to be in the national interest the Minister relied on Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185; [2012] FCAFC 39 (Tewao). The Minister submitted that the issue raised in Tewao is similar to the issue raised in this case in that, like here, it was contended that the Minister improperly came to a view about the national interest because he could not reach the necessary state of satisfaction and he failed to take certain matters into account. 61 In Tewao the appellant argued that the Minister had misapplied the statutory test in s 501A(2) of the Act by failing to identify any consideration capable of rising to a level of abstraction that engages the "national interest". He submitted, among other things, that the Minister's consideration "moved from the identification of a higher than negligible risk of offending directly to a conclusion about the national interest" and that "[i]n so doing, the Minister failed to consider any interest that is national in character, or is capable of engaging the interests of the nation as a whole": at [21]. 62 The applicant submitted that Tewao could be distinguished on its facts. He submitted that it was clear that in that case the Minister considered the character test, including the chances of re-offending; the relevant matters in Direction 41; and evidence provided on behalf of or in relation to Mr Tewao. The applicant contended that, in contrast, in his case the Minister, in coming to his conclusion about the "national interest", only relied on the nature of the applicant's offences and the risk to the community and that his finding was thus much narrower than that made by the Minister in Tewao. 63 The relevant issue before the Full Court in Tewao and the focus of its consideration was whether the Minister in that case was entitled to rely only on the matters relevant to his consideration of whether Mr Tewao had passed the character test in considering the question of whether it was in the national interest to cancel Mr Tewao's visa and, indeed, whether the Minister had properly considered the issue of the national interest. The Full Court held that, although differential consideration had to be given to the latter question, the Minister could rely on the same factors that he took into account in determining whether the character test had been passed. The Full Court then went on to find that the Minister had given consideration to a number of factors in determining whether it was in the national interest to cancel Mr Tewao's visa and set those factors: see Tewao at [43]. In other words, like here, in Tewao there was a need to consider whether the Minister had reached a necessary state of satisfaction in relation to the issue of the national interest and whether he should have taken other factors into account. 64 In this case, it is clear upon examination of the Reasons that the Minister gave separate consideration to the national interest. In doing so he identified the matters that he considered relevant to that issue, as he was entitled to do. He considered each of those matters in the context of whether it was in the national interest to cancel the Visa. There is nothing in the Reasons, and nor does the applicant point to anything, to suggest that he did not undertake the evaluative process required of him and form his view genuinely. 65 Finally it is not the case that the Minister failed to rely on what the applicant contends is the most up-to-date information. The information which the applicant says is the most up-to-date information is the very material annexed to the Reasons and to which the Minister clearly had regard in considering the issues before him. Insofar as the content of that information was concerned, it was a matter for the Minister to determine the factors relevant to his consideration of the national interest.

Ground 2 66 This ground concerns [112] and [114] of the Reasons where the Minister says: 112. I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further criminal conduct by [the applicant]. The Australian community should not tolerate any risk of further harm. … 114. I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct or other serious conduct by [the applicant], than I otherwise would, because he has lived in Australia for most of his life, that being 22 years after arriving as a child aged seven. 67 The applicant contends that the Minister failed to exercise the discretion conferred by s 501BA of the Act because in [112] and [114] of the Reasons the Minister made an impossible leap in concluding that the community could be exposed to harm because he could not rule out the possibility that the applicant would reoffend. The applicant submitted that the Minister thereby reached a conclusion that left no room for any discretion and was akin to a complete failure to attain a reasonable state of satisfaction based on the evidence. 68 The applicant contended that at [112] and [114] of the Reasons the Minister refers to the potential for the community to be exposed to significant harm, that this was expressed in the way of speculation only and that the Minister has not explained how that harm will be inflicted on the community. The applicant notes that the only place where the Minister addresses the potential harm to the community is at [71] of the Reasons which is in the context of his consideration of the national interest. 69 The applicant submitted that the Reasons do not provide a logical connection between the evidence and the Minister's findings. The applicant said that, while he clearly had a troubled past, the material before the Minister demonstrated that he had moved on; had shown remorse; and that community expectations weighed heavily in favour of permitting him to remain in Australia. The applicant also referred to the Minister's positive findings concerning the interests of his minor children, the nature of his family ties and his commitment to the community and submitted that, in exercising his discretion, the Minister did not act within the scope of the statutory authority conferred on him. 70 The applicant submitted that in making his finding about risk to the Australian community the Minister reached a conclusion that no reasonable decision-maker ought to or could have reached when undertaking the necessary balancing exercise. The applicant also said that, despite the Minister considering the best interests of the minor children at length in the Reasons, he did no more than pay "lip service" to that factor given the outcome of the balancing exercise. The applicant contended that if one considers the possible range of lawful outcomes that might result, the ultimate conclusion reached by the Minister was illogical and irrational and not a decision he could or ought to have made. 71 In essence the applicant contends that the exercise of the Minister's discretion in reaching his conclusion that the Visa should be cancelled was unreasonable. In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [58]-[60] and [62]-[65] a Full Court of this Court (Allsop CJ, Griffiths and Wigney JJ) summarised the principles which guide the assessment of whether the exercise of a discretionary power is legally unreasonable: 58 First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Singh at [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J). 59 Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ). 60 Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an "outcome focused" conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ). … 62 Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ). 63 Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42]. 64 Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ). 65 Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. 72 The Reasons must be considered as a whole. They cannot be read in the compartmentalised way urged by the applicant. It is clear when that is done that, in exercising his discretion, the Minister had regard to factors that he also took into account in assessing whether it was in the national interest to cancel the Visa. This is particularly so in relation to the issue of risk to the Australian community. It is not the case that the Minister reached a conclusion that no reasonable decision-maker could reach or that left no room for an alternative outcome. The Minster considered a number of factors. He then undertook a balancing exercise. In doing so he reached the conclusion that the risk to the Australian community should the applicant reoffend, a possibility which the Minister could not rule out, outweighed the strong countervailing considerations that were in favour of not cancelling the Visa. 73 That the applicant is not satisfied with the Minister's Decision is understandable but, while reasonable minds may differ as to the outcome reached, the Minster's Decision is within the range of decisional freedom within which the Minster has a discretion to exercise his power. A review of the Reasons, read as a whole, shows that they provide an evident and intelligible justification for the outcome reached by the Minister. That outcome is not "arbitrary" or "irrational" or "obviously disproportionate". 74 Ground 2 has no merit.

conclusion 75 For those reasons I am not satisfied that I should grant an extension of time to allow the applicant to file the Draft Originating Application. Accordingly, the Extension of Time Application should be dismissed. As the applicant has been unsuccessful he should pay the Minister's costs as agreed or taxed. 76 I will make orders accordingly. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Trade Practices Act 1974(Cth)

Migration Act 1958(Cth)ss 477A, 501(6)-(7), 501BA, 501G

At a glance

Court

Decision date

Before

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Judgment (13 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (28)