Relevant principles
9 In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56] Robertson J considered an application to review a decision under s 501CA not to revoke the cancellation of a visa after representations were made seeking revocation. His Honour observed that the representations as a whole, but not each matter raised within them, were mandatory relevant considerations. The correctness of this observation in Goundar was left open in Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 at [16]. In Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42], Flick J stated that there may be circumstances where there is a failure to properly take into account the representations as required by s 501CA if 'one or other - but not all - of the discrete matters raised' for consideration by the Minister have been addressed.
10 In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, a decision by the Minister not to revoke under s 501CA was set aside on the basis of a failure by the Minister to consider a matter that had been advanced in representations, namely the hardship to Mr Viane's partner if she moved to Samoa with him as a consequence of the revocation of his visa. Rangiah J (Reeves J agreeing) held that if the Minister overlooks 'a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) which if accepted would or could be dispositive of the decision, the Minister's error may be characterised as jurisdictional error': at [30].
11 In reaching the same result in Viane, I held at [66] that 'as the making of representations about the revocation of the original decision is a condition that must be met before the statutory power to revoke is enlivened, there is a statutory obligation on the part of the Minister to consider whether the required state of satisfaction is met by reference to the material presented in the representations'. Therefore, 'a state of satisfaction formed without considering each of the matters that are raised in the representations in a manner which identified them as significant would be a breach of the statutory requirement to consider the representations': at [72]. It would be a failure to conform to a part of the statute that must be met in order for there to be a valid exercise of power: at [75].
12 Recently, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24], Kiefel CJ, Gageler and Keane JJ explained jurisdictional error in a statutory decision-making process as referring to 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it'. Further, statutes ordinarily incorporate a threshold of materiality in the event of non-compliance before there will be a failure to meet the requirements of the statute in a manner that will be jurisdictional: at [29]. The threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if compliance 'could have made no difference to the decision that was made in the circumstances in which the decision was made': at [30].
13 As I have noted, under s 501CA(3) there is a statutory obligation to invite representations to the Minister about revocation of a decision to cancel a visa under s 501(3A). If representations are made, the Minister may revoke the cancellation if the Minister is satisfied, relevantly for present purposes, that there is 'a reason why the original decision should be revoked'. If representations are made then the Minister must form the required state of satisfaction after having regard to those representations. The formation of that state of satisfaction is a precondition to the valid performance of the statutory task of deciding whether to revoke the cancellation of the visa.
14 However, it is a question of statutory construction as to whether the precondition is met if the Minister has regard to the representations in a general sense or whether the Minister must have regard to particular matters raised in order to conform to the statute. If the latter, then the question arises whether the precondition that must be met is to the effect that the Minister must consider only 'a substantial, clearly articulated argument' or a 'significant' matter or each and every matter. Whatever the requirement, if the Minister's state of satisfaction is formed without regard to particular matters that must be considered then there is a failure to comply with the statute. Further, Hossain makes clear that even if that requirement is not met, it is only if the failure is of a kind that meets the 'threshold of materiality' that the required state of satisfaction will not be formed in conformance with the statutory requirement with the consequence that there will be jurisdictional error.
15 For the reasons stated below, it is not necessary in this case to consider the precise type of failure to consider a matter raised in representations that may give rise to jurisdictional error in the formation by the Minister of the required state of satisfaction. Nor is it necessary to consider the precise ambit of the threshold of materiality that might apply before there is any such error. That is because each of the seven matters raised by Mr Hay was considered by the Minister or, if not considered, was not raised in the representations made to the Minister.