CONSIDERATION
47 The Minister made two relevant decisions. The first was to cancel Mr Graham's visa. The second was not to revoke the cancellation decision. Mr Graham has sought judicial review of the Minister's first (cancellation) decision.
48 It was common ground that Mr Graham did not pass the character test because he had a substantial criminal record. Cancellation for this reason does not appear to have been suggested to the Minister because, in 2011, a delegate of the then Minister had considered but declined to cancel Mr Graham's visa because of the sentence of imprisonment for 15 months. Having considered the information with which he was provided the Minister reasonably suspected that Mr Graham did not pass the character test because the Minister "reasonably suspected that [Mr Graham was] a member of a group and that group [was] involved in criminal conduct." It was for this reason that the Minister exercised his power under s 501(3) of the Act.
49 Having made the cancellation decision the Minister promptly acted, as he was required to do, under s 501C(3) of the Act. He provided Mr Graham with a notice setting out his decision, particulars of relevant information on which he had relied and extended an invitation to Mr Graham to make representations to him about revocation of the cancellation decision. The notice advised Mr Graham that the Minister had power to revoke his cancellation decision if Mr Graham was able to satisfy him that he passed "the character test which is defined in s 501(6) of the Migration Act …". The notice continued: "You will note s 501(6)(b) was the relevant ground of the character test, however you may wish to note the other grounds in s 501(6)."
50 Mr Graham made a timely response to the invitation contained in the notice.
51 Had the Minister cancelled Mr Graham's visa under s 501(3) because he had a substantial criminal record the case would have been indistinguishable from Re Patterson and Tanielu. Prior to making his cancellation decision the Minister was not advised that any subsequent invitation under s 501C(3) would be an exercise in futility because the precondition, prescribed by s 501C(4)(b), for revocation could never be satisfied and his reasons made no reference to this legal reality.
52 A critical question which arises is whether or not the fact that the Minister found Mr Graham to have failed the character test because of his membership of a motor cycle gang provided a material basis for distinguishing these decisions.
53 There is some support to be found, in the authorities, for doing so.
54 Re Patterson (at 453-4), Gummow and Hayne JJ referred to s 501(6)(a) and observed that:
"[d]ifferent circumstances might have arisen if, for example, the ground relied upon had been [Mr Taylor's] association with a person or group or organisation whom the Minister reasonably suspected of involvement in criminal conduct."
55 NBMW v Minister for Immigration (No 2) (2014) 222 FCR 376 ("NBMW"), dealt with two parts of the character test: association (s 501(6)(b)) and significant risk to the Australian community (s 501(6)(d)(v)). The Minister's reasons stated that:
"By s 501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under s 501(3). However by section 501C, following a decision under s 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be invited to make representations about possible revocation of the decision."
56 Edmonds J rejected the applicant's contention that the Minister's decision was based on a misapprehension that the applicant would be given an "effective" opportunity to satisfy the Minister that he had passed the character test. His Honour said (at 382-3) that:
"Re Patterson is distinguishable for three reasons.
(1) First, in Re Patterson, the majority (Gummow and Hayne JJ, Gleeson CJ agreeing at [1] and McHugh J agreeing at [87]) distinguished the "substantial criminal record" limb of the character test (s 501(6)(a)) from the other limbs, stating that "[d]ifferent circumstances might have arisen if, for example, the ground relied upon had been the prosecutor's association with a person or group or organisation whom the Minister reasonably suspected of involvement in criminal conduct (para (b) of s 501(6))": at [190]). This case falls squarely within that carve-out, given that the Cancellation Decision was based in part on s 501(6)(b): CB 27[3].
(2) Second, the essential difference between s 501(6)(a) (at issue in Re Patterson) and s 501(6)(b) and (d)(v) (at issue here) is that the former involves a question of fact, whereas the latter involves questions of judgment and admits of explanatory evidence. If a person has a substantial criminal record, no explanation of the circumstances of past offending, or of good conduct since, can change the fact of that record. But s 501(6)(b) and (d)(v) are different. Section 501(6)(d)(v) involves a predictive exercise that could obviously be influenced by submissions. Similarly, s 501(6)(b) requires an evaluation of an "association" which, while it focuses on past facts, may be innocent or culpable: eg, Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at [121] (Black CJ, French and Weinberg JJ). A conclusion about "association" therefore may be affected by explanation or exculpatory evidence. Accordingly, whenever a decision is based on that limb of the character test, an opportunity to seek revocation is not necessarily futile (unlike a case within s 501(6)(a)).
(3) Third, the Minister's misapprehension in Re Patterson involved a misapprehension of present fact. At the time of the decision, any revocation application would have been futile. The misapprehension asserted by the applicant in these proceedings is not one of present fact. The asserted misapprehension is an alleged belief on the part of the Minister that the applicant would have a real or effective opportunity to make submissions on a revocation application. That belief, if held, could only be falsified by events subsequent to the decision: it depended on what future steps the Minister and the Department took to inform the applicant of the Cancellation Decision. A belief, true when held, but falsified by subsequent events, should not be regarded as a misapprehension capable of giving rise to a constructive failure to exercise jurisdiction. The means by which events subsequent to a decision might affect the validity of the decision is through the doctrine in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355: see Re Minister for Immigration and Multicultural and Indigenous Affairs ; Ex parte Palme (2003) 216 CLR 212 at [44] (Gleeson CJ, Gummow and Heydon JJ). There is no contention - and there could be no sound contention - that it was a purpose of any duties imposed on the Minister subsequent to the Cancellation Decision that failure to perform those duties would invalidate the Cancellation Decision."
57 NBMW establishes the existence of a sound and arguable basis for discriminating between paragraphs 501(6)(a) and (b) when the Minister is considering the exercise of his cancellation powers under s 501(2) and (3) of the Act. Edmonds J clearly contemplated that an opportunity to make submissions to the Minister, pursuant to an invitation extended under s 501C(3), may have utility, where the s 501(6)(b) criterion is relied on, given that the Minister will need to make value judgments as opposed to being satisfied about the existence of an objectively ascertainable fact.
58 I am not, however, persuaded that Tanielu and NBMW are irreconcilable. As Edmonds J pointed out, Re Patterson dealt with s 501(6)(a) which gave rise to a question of fact as to whether the visa-holder had a substantial criminal record as defined in s 501(7). If the visa-holder has such a record, "the power of revocation under s 501C(4) could never be enlivened …": Re Patterson at 453 (Gummow and Hayne JJ). The visa-holder in NBMW was not alleged to have such a record. The Minister had determined to cancel his visa because he suspected that the visa-holder had a relevant association for the purposes of s 501(6)(b) and that there was a significant risk that, if the visa-holder were to remain in Australia, he would represent a danger to the Australian community or part of it (s 501(6)(d)(v)). In determining whether one or both of these criteria had been established value judgments were involved and, in the case of s 501(6)(d)(v), "a predictive exercise" was required. As a result an application for revocation would not be futile because the Minister might be persuaded to reconsider the judgments which he had formed in the light of any submissions made by the visa-holder.
59 The question remains as to whether an application for revocation would be futile because the applicant, like the present applicant, may fail the character test under both s 501(6)(a) and one or more other paragraphs of that sub-section. The answer to this question depends on the construction of the statutory scheme.
60 The Minister contended that it was implicit in the scheme of s 501C, that the "character test" referred to in s 501C(4) means that element of the test that was relied on by the Minister when he made his original cancellation decision.
61 There was, he contended, an obvious link between the basis upon which a visa is cancelled and s 501(3) and the subsequent opportunity to make a revocation decision under s 501C(4). Furthermore, the focus on the original decision in the definition of "relevant information" suggested an expectation that the issues relevant to the revocation decision would be those that were the subject of the original cancellation decision.
62 I do not accept these submissions.
63 The Minister's power to cancel a visa under s 501(3) of the Act is conditioned upon him reasonably suspecting that the visa-holder "does not pass the character test": see s 501(3)(c). The Minister may so act without first according the visa-holder natural justice: see s 501(5). The opportunity to make submissions is to be afforded after the decision has been made. If the Minister harbours the necessary suspicion and decides to cancel the visa s 501C is engaged: see s 501C(1)(b). Section 501C(3) requires that the Minister must promptly advise the visa-holder of the cancellation decision. A written notice of the decision must be provided together with "particulars of the relevant information". "Relevant information" is defined, in s 501C(2) to be information (other than non-disclosable information) that the Minister considers "would be the reason, or a part of the reason," for making the cancellation decision and is specifically about the visa-holder or another person.
64 As I observed in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [40], in relation to the same definition of "relevant information" appearing in s 501CA(2), the Minister is required to expose so much of his reasons as he is permitted to disclose for making his decision to cancel the visa. Given that the Minster will know why he has made the decision the use of the words "would be" are somewhat curious.
65 The particulars of the relevant information are to be accompanied by an invitation to the visa-holder to make representations to the Minister about "revocation of the original decision".
66 The Minister's power to revoke the original decision is enlivened if the visa-holder makes representations in accordance with the Minister's invitation and "satisfies the Minister that [he or she] passes the character test (as defined by section 501)".
67 The construction of s 501C(4)(b), for which the Minister contends, ignores or requires a significant reading down of the words in parenthesis which appear immediately after the reference to "the character test". The Minister cannot exercise his power to revoke an earlier decision to cancel a visa unless he is satisfied that the visa-holder passes the character test as it is defined in s 501. That definition is to be found in s 501(6), read with subsection (7). Section 501(6) makes plain that the person will not pass that test if any of the criteria contained in the subsection apply. In making his initial decision the Minister may rely on one or more of these criteria. Where, on the facts known to the Minister and to the visa-holder, it is open to the Minister to conclude that the applicant does not pass the character test for additional reasons, there is no necessary inconsistency between the Minister acting for one reason and the visa-holder, when seeking revocation, being required to satisfy the Minister that other potentially relevant criteria do not apply.
68 The Minister also submitted that the "reasonable suspicion" requirement in s 501(3) referred to a subjective suspicion. If he did not hold that subjective suspicion in respect of a particular ground, even if that ground may, objectively, be satisfied, the power to cancel the visa could not be exercised on that objective ground.
69 So much may be accepted. It does not, however, follow that, when considering revocation under s 501C(4), the Minister will be confined to a consideration of the subjective suspicions he harboured when cancelling the visa. That decision will have been made without the Minister having received submissions from the visa-holder. When revocation is being considered it is for the visa-holder to satisfy the Minister that he or she passes the character test. To do that the visa-holder must seek to establish that none of the criteria identified in s 501(6) have application to him or her. It would be perverse of the Minister, when deciding whether to revoke a cancellation decision and having been advised that the visa-holder had been sentenced to imprisonment for a period exceeding 12 months, to conclude that he had been satisfied by the visa-holder that the visa-holder passed the character test.
70 The Minister submitted that a literal construction of ss 501(3) and 501C(4), in a case such as the present, would subvert the statutory scheme for the provision of procedural fairness. This would occur, he suggested, because a visa-holder who was seeking revocation of a cancellation decision would, knowing the basis on which the Minister acted in cancelling the visa, be misled into thinking that he could obtain a favourable decision by persuading the Minister that his reliance on the particular ground was misplaced.
71 This contention would have greater force were the Minister to be minded to reject a revocation application because he reasonably suspected that the visa-holder failed the character test for a reason which called for the making of a value judgment and to which no reference had been made by the Minister when determining to cancel the visa and when inviting representations about revoking the decision. The present is not such a case.
72 Procedural fairness is intended to ensure that those who may be adversely affected by administrative decisions are not prejudiced by "practical injustice": see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ). The guiding principle is one of fairness: see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 566 (Allsop J, with whom Gyles and Conti JJ agreed on this point). As Weinberg J said in Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 at [54]:
"Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural fairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance."
73 The issues paper which was sent to the Minister and which he considered before making his original decision had attached to it a National Police Certificate dated 4 May 2015 which recorded that Mr Graham had been sentenced to imprisonment for 15 months by the Supreme Court of Tasmania on 8 May 2009. A copy of the issues paper and the attached certificate were provided to Mr Graham when he was given the Minister's reasons for deciding to cancel his visa. At the same time Mr Graham was provided with copies of relevant parts of the Act including ss 501 and 501C. The invitation extended to him, pursuant to s 501C(3)(b), specifically referred to s 501C(4)(b) and to the definition of the character test in s 501(6). Mr Graham was told: "[y]ou will note s 501(6)(b) was the relevant ground of the character test, however you may wish to note the other grounds in s 501(6)." Mr Graham's attention was thus directed to the full panoply of grounds contained in s 501(6) and not just the ground on which the Minister had relied when cancelling the visa. He was given the opportunity of dealing with any of them that might have been relevant. In the written submissions to the Minister seeking revocation of the cancellation decision Mr Graham's solicitor referred to the National Police Certificate although he did not specifically refer to the sentence of 15 months' imprisonment imposed by the Supreme Court on 8 May 2009. Had he done so he would have been bound to concede that Mr Graham had a substantial criminal record for the purposes of s 501(6)(a).
74 In these circumstances it is difficult to conclude that Mr Graham had been treated unfairly or had been the victim of some practical injustice. His attention had been directed to the relevant statutory provisions and, in particular, to the whole of s 501(6). It was for him to decide how best to frame his representations.
75 There can be no doubt that the exercise of the Minister's powers under s 501C is conditioned by a requirement that he accord procedural fairness to visa-holders: see Vella v Minister for Immigration and Border Protection (2015) 230 FCR 61 at 75. Mr Graham did not, however, ultimately press an argument that he had been denied procedural fairness by the Minister. What has been said, however, about the procedural steps taken in the present case and the practical impact of those procedures, is sufficient to gainsay the Minister's proposition that a literal construction of s 501C(4)(b) would necessarily deprive a visa-holder, who is seeking revocation of a cancellation decision, of procedural fairness.