The alternative ground
94 Regardless of whether his citizenship was validly revoked, the applicant maintains that the Tribunal's Non-Revocation Decision is nonetheless liable to prerogative relief because the Cancellation to which it relates was a nullity. That, he says, arises in consequence of the fact that the Cancellation pertained to a visa that, in fact, he did not possess.
95 Two aspects of that challenge are not disputed. The first is that the written notice by which the applicant was informed of the Cancellation referred to the cancellation of a "Class AQ Subclass 150 Former Citizen" visa. The second is that the applicant did not possess (and has never possessed) any such visa.
96 That second reality warrants further attention. Class AQ visas were abolished with effect from 1 July 2000. How it is that the Minister's delegate came to think, at the time of the Cancellation - some 18 years later - that that was the species of visa that the applicant held is not clear.
97 Regardless, the question that now arises is whether or not the Cancellation had the effect of cancelling the ex-citizen visa that the applicant in fact was deemed to have been granted after his Australian citizenship was revoked. The applicant maintains that it did not.
98 To that end, he relies upon the observations of the full court in Minister for Immigration v Schwart [2003] FCAFC 229 ("Schwart"; Tamberlin, Mansfield and Emmett JJ). That case involved a decision to cancel a temporary visa under s 501(2) of the Migration Act. In reality, however, the respondent was the holder of a different, permanent visa. The cancellation was set aside and the full court dismissed the Minister's appeal from that decision. In doing so, it made the following observations (at [15], [29], [31]-[33]):
…The effect of the [Migration] Act and the Regulations [made thereunder] is that the Minister must understand the nature and consequence of any decision that he is asked to make. That understanding is a jurisdictional fact…
…
The short question that arises on the hearing of the appeal is whether, by signing the Decision Page and dating it '5.2.03', the Minister cancelled the only visa held by the respondent, being the visa that continued in effect by the operation of reg 4(1) of the Transitional Regulations as a transitional (permanent) visa or whether, on its proper construction, it purported to do no more than cancel a 'Subclass 155 - 5 Year Resident Return Visa'. If, on its proper construction, the only effect of signing the Decision Page was to cancel a Subclass 155 - 5 Year Resident Return Visa, the decision had no effect, because the respondent was not the holder of such a visa.
…
…The Decision Page does not purport to cancel a residence visa category K1412. It does not purport to cancel anything other than a 'Subclass 155 - 5 Year Resident Return Visa'. The respondent was never the holder of such a visa. The Memorandum purports to cancel a visa that did not exist. The Minister's purported decision was a nullity.
The result may appear to be a technical one. However, the material before the Court is an unfortunate example of sloppiness on the part of Commonwealth administrators. Where the entitlement of an individual to remain in Australia is in issue in the making of a decision, the Australian community is entitled to expect that the documentation in relation to the making of such a significant decision is prepared with care. The material in question has not been prepared with care.
It is not possible to be certain that the Minister understood, when signing the Decision Page, what he was doing. It may well be that he was well aware that the respondent had been resident in Australia for eighteen years and had, under the terms of a visa held by him, a right of indefinite residence. However, at no stage does the Memorandum refer to a 'transitional (permanent) visa' that the respondent is deemed to hold pursuant to reg 4(1) of the Transitional Regulations. If the Minister exercises the important discretionary power conferred by s 501, there should be no doubt that that is what he is doing.
99 A similar conclusion was reached in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 739 ("Sales"; Gyles, Graham and Buchanan JJ). There, the Minister purported to cancel a transitional (permanent) visa. The respondent, in truth, held a different species of visa. Buchanan J (with whom, on this point, Gyles and Graham JJ agreed) observed as follows (at 75-76 [96]):
The Minister argued that any mistake made in cancelling, or purporting to cancel the transitional (permanent) visa which Mr Sales was thought to hold, rather than the absorbed person visa, should be disregarded. I do not accept that the matter may be approached in this way. The Minister's attention was directed specifically and in unmistakeably clear terms to the proposal that a transitional (permanent) visa should be cancelled with the "automatic" result that an absorbed person visa would also be cancelled; not by decision of the Minister, but rather by operation of s 501F of the current Act. It is not clear why, on the second occasion when it was proposed to take action against Mr Sales, attention was focused on a transitional (permanent) visa when on the first occasion it was focused on the absorbed person visa. It appears that the officers of the Minister's Department responsible for preparing the advice to him misunderstood the character and intended effect of the earlier decision and of Allsop J's judgment setting it aside. Be that as it may, a choice was made. The choice may have been mistaken but it does not represent a mistake of the kind upon which the Minister sought, if necessary, to rely. As Mr Sales held no transitional (permanent) visa the decision purporting to cancel such a visa was of no legal effect…
100 Both of Schwart and Sales involved discretionary cancellations effected under s 501(2) of the Migration Act. Nonetheless, equivalent reasoning has been applied in the context of mandatory cancellation under s 501(3A). In Anderson v Assistant Minister for Immigration [2018] FCA 888 (Reeves J), the Minister purported to cancel a species of visa that the applicant, in fact, had not been granted. More than 18 months later, a separate decision was made under s 501(3A) to mandatorily cancel the visa that he had, in fact, been granted. Mr Anderson contended that the Minister was not empowered to make the second decision because the effect of the first was that the visa that he in fact had been granted was also cancelled and, therefore, was no longer extant. That was said to be the result of s 501F of the Migration Act, which provides (amongst other things) that the cancellation of a person's visa under s 501 is apt also to cancel any other visa that the person has been granted.
101 The Minister there sought to meet that submission by advancing precisely the contention that the applicant in this matter now advances: namely, that the first cancellation decision was a nullity because it had sought to cancel a visa that had not, in truth, been granted. Reeves J accepted that contention. His Honour observed (at [44]):
In this matter, it is clear from the [first cancellation] letter dated 5 January 2015 that the [first cancellation] decision was directed to a Class BF transitional (permanent) visa, and only that visa. As has been explained above, Mr Anderson was never the holder of such a visa. It necessarily follows that, in making the 17 December 2014 decision, the Minister or his delegate purported to cancel a visa that did not exist. That being so, applying Schwart, I consider I am bound to hold that the [first cancellation] decision was a nullity.
102 More recently, the Federal Circuit Court of Australia (as it then was) applied the rationale that emerges from Schwart and Anderson in circumstances that are materially identical to those that arise presently: EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436 (Judge Driver).
103 Two points of principle emerge from the authorities just summarised. The first is hardly profound: namely, that s 501(3A) of the Migration Act does not authorise decisions to cancel visas that have not been granted. If that is what, in fact, the Minister's delegate here decided to do, then there is little doubt that the Cancellation was beyond the authority that s 501(3A) of the Migration Act conferred. Whether or not it should be understood to be a product of jurisdictional error would, in that scenario, turn upon whether or not the error that was made was material.
104 The second concerns the extent to which this court now is bound (or otherwise or further bound) by what emerges from the authorities summarised above. Plainly, the central point of legal principle - that the Migration Act does not permit the cancellation of visas that haven't been granted - is binding. But whether or not the facts of the present matter accumulate to require the same outcome is another question. In that respect, it bears noting that Schwart and Sales involved the purported exercise of a different statutory power (namely, s 501(2) of the Migration Act). Unlike s 501(3A), that section contemplates visa cancellation as an exercise of discretion, which is informed (or capable of being informed) by a knowledge or understanding of the nature of that which might be cancelled. Anderson involved the mandatory cancellation of a visa; but not one that was deemed to have been granted in consequence of citizenship revocation (which, for reasons to which I shall shortly return, is a matter of some significance).
105 EUF20, of course, is not binding upon this court; although, respectfully, it is well-reasoned and persuasive. However, for the reasons that follow, I am not drawn to an equivalent conclusion in the present circumstances.
106 It determining whether or not the Minister's delegate was authorised to make the decision that was made, it is crucial first to assess what it was that was, in fact, decided - that is to say, what judgment formed in his or her mind. In this matter (as with most), that falls to be done by drawing inferences from the available evidence. Here, the most obvious source of information from which such inferences might be drawn is the correspondence that the applicant received on 30 July 2018 informing him of the Cancellation.
107 It is convenient to replicate the first paragraph of that correspondence:
Purpose of this notice You were granted a Class AQ Subclass 150 Former Citizen visa on 22 June 2017 (your visa). The purpose of this notice is to advise you that on 30 July 2018 your visa was cancelled under s501(3A) of the Migration Act 1958 ('the Act').
108 The correspondence of 30 July 2018 extended over four pages (plus some enclosures). The only reference to the applicant having been granted a "Class AQ" visa was the one that appears in the opening sentence. Thereafter, the correspondence made numerous references to "your visa" - including as to its having been cancelled and to the measures of which the applicant might avail himself in an effort to have that cancellation revoked.
109 The reference in that opening sentence to the applicant having been "granted" a visa "on 22 June 2017" is instructive. It is to be recalled that that was the date of the Minister's Citizenship Decision (and, therefore, the date on which the applicant's Australian citizenship ceased). By operation of s 35(3) of the Migration Act, the applicant was deemed to have been granted an ex-citizen visa on that date.
110 Also instructive is a passage that appears on the second page of the 30 July 2018 correspondence under the hearing "Your visa status". There, the Minister's delegate recorded:
Your visa has been cancelled and you no longer hold a visa…
111 Three observations emerge. First, it is clear that the delegate's decision was to cancel the visa that was granted to the applicant on 22 June 2017. Second, the delegate appears correctly to have understood that that was the only visa that had been granted to the applicant. Third, it is apparent that the delegate understood that the visa that had been granted to the applicant had been granted in consequence of his loss of citizenship. That third reality is clear both from the erroneous reference to his having been granted a "Class AQ" visa and the reference to the date on which that occurred (which plainly could not have been a matter of coincidence).
112 That the delegate went on, in the correspondence of 30 July 2018, to wrongly identify the species of visa so granted is, of course, a further relevant circumstance. Nonetheless, looking at the circumstances as a whole, I consider that it is clear that the decision that the delegate in fact made (and later, by the correspondence of 30 July 2018, sought to communicate) was to cancel the visa that was granted to the applicant on 22 June 2017 in consequence of the revocation of his Australian citizenship. Notwithstanding what appears at the commencement of that correspondence, it cannot safely be inferred that the delegate in fact made a decision to cancel a species of visa that hadn't existed for the best part of two decades.
113 Having said that, it is clear that the misdescription of the applicant's visa in that correspondence is regrettable. Plainly, it would have been better for the delegate to identify accurately in that notice the visa that he or she had decided to cancel. Perhaps the failure to do so involved "…an unfortunate example of sloppiness on the part of Commonwealth administrators": Schwart, [32] (Tamberlin, Mansfield and Emmett JJ).
114 However, the court is not "astute to discern error": Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 185 [25] (French CJ, Bell, Keane and Gordon JJ). Leaving aside notions of legal unreasonableness (which do not here arise), it is not the role of the court on judicial review to critique the reasons that have been given in support of a challenged decision (or, as in this case, the written notice by which it was communicated). Judicial review of administrative action is confined to the legality of decision making. It does not turn upon the skill or precision with which such decisions are communicated. Labels like "regrettable" and "sloppy" rarely assist with the endeavour.
115 In any event, the authorities acknowledge that administrative decision makers are fallible and that errors contained within written reasons or correspondence advanced to justify or communicate a given decision will not always marry seamlessly with what was, in fact, decided. A good example is the decision of this court in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494 (French J). There, the court considered a decision to cancel a visa that had been granted to the applicant, Mr Silas Timothy Johnson. That decision was made by the Minister upon consideration of a briefing paper prepared by officials within his department. That paper identified the visa holder as "Silas Tinessy Johnson". Mr Johnson submitted that the Minister had, in fact, cancelled (or purported to cancel) a visa granted to somebody other than him. That ambitious submission failed. The court concluded (at 505, [26]-[27]) that it was clear from context that the cancellation pertained to him, notwithstanding the error of identification.
116 Jones v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 261 (R D Nicholson J) is similarly instructive. There, the Minister purported to cancel the applicant's "BF-C (permanent)" visa under s 501(2) of the Migration Act. As with Mr Johnson's case, Ms Jones's visa had been so described in an issues paper prepared for the Minister by his department. As in this case, it was misdescribed: Ms Jones was, in fact, the holder of a "BF (permanent)" visa. She sought to establish - much as the applicant in this matter does - that the visa that she in fact held had not been cancelled. She, too, was unsuccessful: after referring to Schwart, the court concluded (at 272 [44]) that it could not "…be safely inferred the respondent [Minister] did not know what he was doing…"
117 Here, it is quite plain that the Minister's delegate knew exactly what he or she was doing: namely, cancelling the visa that the applicant was granted on 22 June 2017 in consequence of the loss of his citizenship. That is what s 501(3A) of the Migration Act required. That the transaction was blotted by misdescription in the notice of 30 July 2018 is of no moment, at least not insofar as concerns its legality. The delegate's decision was not attended by jurisdictional error.
118 Having so concluded, it is not necessary that I should address the alternative submission that the Minister advanced regarding materiality. Nonetheless, I would make this observation: if, contrary to what I have concluded above, the Minister's delegate in fact decided to cancel a visa that the applicant had not been granted - and if, as a result, that decision should (as plainly it should) be considered a nullity or beyond what s 501(3A) authorised - then I would be slow to conclude that the error so committed was immaterial in the sense recognised by authorities such as Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
119 The Minister's materiality submission is easy enough to follow. He says that, had the delegate (in the hypothetical scenario described above) properly understood what visa had, in fact, been granted, precisely the same outcome would have ensued: namely, it would have been mandatorily cancelled and the applicant would have found himself in precisely the position in which he now finds himself. As much may be accepted. Nonetheless, as I apprehend the state of the authorities, materiality turns upon the prospect that an administrative decision maker might, but for an identified error, have been led to make a different decision. Here, there would almost certainly have been a different decision. Rather than cancelling a visa that the applicant had not been granted, the delegate would have proceeded to cancel one that had been. That very similar practical consequences would then ensue does not appear to factor as a matter that informs the court's assessment of materiality. For obvious reasons, though, nothing more need be said about that subject.
120 I do not accept that the Cancellation was a product of jurisdictional error as alleged. Because I am drawn so to conclude, I do not accept that the Tribunal's Non-Revocation Decision was beyond the jurisdiction that was conferred upon it by s 501CA(4) of the Migration Act (or, more accurately, s 500(1)(ba)). None of the relief to which the applicant lays claim under his alternative ground of challenge should be granted.