What happened
The appellant, a Nigerian national, arrived in Australia in 2008 on a provisional partner visa and was granted a Class BC Subclass 100 Partner (Migrant) visa in January 2009. While serving a sentence of imprisonment imposed in December 2014 he was made the subject of a mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) in July 2015. A delegate revoked that cancellation under s 501CA(4) in August 2016. In May 2017 an Assistant Minister set the revocation aside under s 501BA(2) and cancelled the visa again. That decision was quashed by the Federal Court in Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218. On 26 February 2018 the Assistant Minister for Home Affairs again exercised the s 501BA(2) power, being satisfied that the appellant failed the character test because of a substantial criminal record and that cancellation was in the national interest.
No notice was given to the appellant after the 2017 quashing that the power was again under consideration, and no fresh submissions were invited or received. The Assistant Minister's statement of reasons referred to submissions made by the appellant in 2015, noted that two and a half years had passed, acknowledged that the appellant's circumstances were likely to have changed, recorded that departmental information about his current personal circumstances was limited, and observed that the decision would have "real and practical consequences" for the appellant, his three minor Australian-citizen children and his girlfriend (now wife). The Assistant Minister nevertheless decided to proceed under s 501BA(2). He also addressed claims that the appellant faced harm in northern Nigeria on account of his Christian faith and ethnicity, including a request for an International Treaties Obligations Assessment. He concluded it was unnecessary to determine whether non-refoulement obligations were owed because the appellant could apply for a Protection visa in which those matters would be considered, and he referred expressly to Direction No 75 made under s 499.
The appellant commenced judicial review proceedings. The primary judge dismissed the application. On appeal to the Full Court the appellant advanced two grounds that had been argued below and sought leave to advance a third. The Full Court (White, Perry and Charlesworth JJ) granted leave on the third ground, upheld Grounds 1 and 3, rejected the Minister's Notice of Contention, allowed the appeal, set aside the orders below and issued certiorari quashing the 26 February 2018 cancellation decision.
Why the court decided this way
The court decided the Assistant Minister's decision was affected by jurisdictional error because his state of satisfaction under s 501BA(2) was not formed on a correct understanding of the law. Three linked propositions underpinned the reasoning.
First, s 501BA(3) states that the rules of natural justice do not apply to a decision under subsection (2). That language removes any obligation to afford procedural fairness but does not prohibit the Minister from choosing to invite submissions. The power to do so is an incident of the power conferred by s 501BA(2) itself, not an extra-statutory capacity. The Assistant Minister's reasons at [10]-[14] showed he treated the decision to proceed under s 501BA(2) and the decision to do so without natural justice as a single composite choice. He weighed the disadvantages to the appellant of not being heard against the national-interest reasons for cancellation, yet gave no recognition to the possibility that he could invite submissions to ameliorate those disadvantages. The court regarded that weighing exercise as unnecessary if the Assistant Minister had understood he could obtain further information. The passage of time since the 2015 submissions, the acknowledged likelihood of changed circumstances and the limited departmental knowledge made it probable that, had the correct understanding been present, submissions would have been invited. That probability satisfied the materiality test drawn from Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31], [46] and [66]-[72].
Second, the court rejected the primary judge's view that, because the Assistant Minister was not bound even to consider inviting submissions, any misapprehension about his ability to do so could not be jurisdictional. Citing R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42 at 430, Buck v Bavone [1976] HCA 24 at 118-9, Re Patterson; Ex parte Taylor [2001] HCA 51 at [189] and [196], Wei v Minister for Immigration and Border Protection [2015] HCA 51 at [33] and Graham v Minister for Immigration and Border Protection [2017] HCA 33 at [68], the court held that a decision-maker required to reach a state of satisfaction must understand the legal limits and attributes of the power. The Assistant Minister's misapprehension went to an important attribute of the decision: whether the Act left open the possibility of hearing the affected person. That was not a mere ancillary or extra-statutory matter; it was part of the correct understanding of how the statutory power could lawfully be exercised.
Third, on Ground 3 the court found the Assistant Minister had conflated Australia's international non-refoulement obligations (rooted in Art 33 of the Refugees Convention and defined broadly in s 5(1)) with the statutory criteria in s 36(2) as amended by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The Assistant Minister responded to detailed claims of harm to Christians in northern Nigeria by stating it was unnecessary to determine non-refoulement obligations because they would be considered in a Protection visa application. He used the language of the Convention, referred to "the international obligations framework" and expressed confidence that the appellant's "protection claims" would be "fully assessed". He did not mention the narrower definition of "refugee" in ss 5H and 5J, nor the exclusion of the internal relocation principle by s 5J(1)(c). The court held that the internal relocation principle remained relevant to Australia's international obligations but could not be considered under s 36(2)(a). Because that difference was material to the appellant's claims, the misapprehension was jurisdictional in the same way identified by the majority in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at [72]. Ground 2 failed because the Assistant Minister's express reliance on Direction No 75 showed he understood that protection criteria would be assessed first but that ineligibility criteria under ss 36(1C) and 36(2C)(b) could still lead to refusal.
The errors were not cured by the fact that non-refoulement was not a mandatory relevant consideration in the strict sense (Minister for Immigration and Border Protection v Le [2016] FCAFC 120 at [41]). The Assistant Minister had in fact turned his mind to the topic and had done so on a flawed legal foundation. The result was a purported but not real exercise of the s 501BA(2) power.
Before and after state of the law
Before this decision the law was settled that a statement that the rules of natural justice do not apply removes any obligation but does not forbid the decision-maker from affording a hearing if he or she chooses (Kioa v West [1985] HCA 81 at 594, 614, 633). It was also settled that ministerial satisfaction under character powers must be formed on a correct understanding of the law (Re Patterson; Ex parte Taylor; Wei). BCR16 had established that it could be legally erroneous to defer non-refoulement claims to a Protection visa application on the assumption that they would necessarily be considered and yield a benefit, because character or security criteria might be reached first. Direction No 75, issued in September 2017, altered the practical position by requiring delegates to assess refugee and complementary protection criteria before character or ineligibility criteria. Cases such as Ali v Minister for Immigration and Border Protection [2018] FCA 650, Greene v Assistant Minister for Home Affairs [2018] FCA 919, Turay v Assistant Minister for Home Affairs [2018] FCA 1487, BKS18 v Minister for Home Affairs [2018] FCA 1731, Sowa v Minister for Home Affairs [2018] FCA 1999 and DOB18 v Minister for Home Affairs [2018] FCA 1523 had applied that change to hold that the BCR16 error was no longer available.
This judgment confirmed that s 501BA(3) does not prohibit affording natural justice and that a positive misunderstanding that it does can vitiate the formation of satisfaction under s 501BA(2). It also clarified that, even after Direction No 75, a decision-maker who uses the language of "non-refoulement obligations" and assumes those obligations map exactly onto s 36(2) without adverting to the post-2014 narrowing (especially the exclusion of internal relocation by s 5J(1)(c)) commits a distinct and material error. The court emphasised that the Assistant Minister's own reasons, read fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at 272), are the primary evidence of his understanding. Departmental briefing notes are relevant but not decisive.
Key passages with plain-English translation
Paragraph [26]: "Section 501BA(3) is to be understood as removing any obligation on the Minister to afford natural justice when exercising the power under s 501BA(2), but not as prohibiting the Minister from doing so."
Plain-English translation: The Act says the Minister does not have to give a hearing, but it does not say the Minister is forbidden from giving one if he thinks it would help him make a better decision.
Paragraph [46]: "The Assistant Minister's reasons do seem to indicate his understanding that proceeding under s 501BA(2) and doing so without providing natural justice is a composite matter."
Plain-English translation: The Minister appeared to think that using this power automatically meant no hearing could be given; he did not realise he could use the power and still ask for more information.
Paragraph [62]: "If the Assistant Minister had a positive understanding that s 501BA(3) precluded him from giving effect to the rules of natural justice by inviting the appellant to make submissions or to provide further material, then that would involve a misunderstanding of the nature of the power he was exercising."
Plain-English translation: Believing the law shuts the door on any hearing is a legal mistake that goes to the heart of the power. It is not a small procedural slip.
Paragraph [111]: "It is apparent that he used the term 'non-refoulement obligations' in [97] of his reasons as a form of shorthand reference to both non-refoulement obligations arising under international law and to protection obligations arising under s 36 of the Act."
Plain-English translation: The Minister used one label for two different legal tests and did not notice they no longer line up because Parliament changed the visa rules in 2014.
Paragraph [115]: "The Assistant Minister's error was material given the potential for the internal relocation principle to be applied in the appellant's circumstances."
Plain-English translation: Because Mr Ibrahim claimed harm only in northern Nigeria, the question whether he could safely live somewhere else in Nigeria mattered under international law but could not be asked under the visa law. That difference could have changed the Minister's mind.
What fact patterns trigger this precedent
The decision is triggered when an Assistant Minister exercises the s 501BA(2) power after a considerable time has elapsed since the affected person last made representations, the Minister acknowledges that circumstances are likely to have changed and that departmental information is limited, yet the reasons reveal an understanding that the Act forbids inviting further submissions or that absence of natural justice is an inseparable feature of the power. It is also triggered where the Minister addresses claims of harm that engage Art 33 of the Refugees Convention, uses the language of "non-refoulement obligations" rather than the language of s 36(2), states that those obligations will be considered in a Protection visa application, and does not advert to the post-2014 narrowing of the statutory refugee definition or the exclusion of the internal relocation principle by s 5J(1)(c). The precedent applies with particular force where the person's claims involve localised harm (for example, risk in one region of the home country) that could engage the internal relocation principle under international law but could not under s 36(2)(a).
The errors are material, and therefore jurisdictional, only if the court can be satisfied that the correct understanding could realistically have led to a different decision. In this case the marriage that post-dated the 2015 submissions, the birth of further children, and the potential application of internal relocation to northern Nigeria claims supplied that materiality.
How later courts have treated it
The judgment itself notes that after it was reserved the parties drew attention to Mortimer J's decision in Omar v Minister for Home Affairs [2019] FCA 279, which considered a similar conflation argument, and to the Full Court's decision in DOB18 v Minister for Home Affairs [2019] FCAFC 63. Neither party sought to make further submissions on those cases, so the present judgment stands as the authoritative statement on both the natural justice misunderstanding under s 501BA(3) and the post-Direction No 75 limits of the BCR16 error. The court treated BCR16 as correctly stating the law but distinguished its application once Direction No 75 required protection criteria to be considered first. It applied the materiality analysis from Hossain without reservation. The judgment has been cited in subsequent authorities for the propositions that (a) a positive misunderstanding that a provision stating natural justice does not apply also prohibits affording it can vitiate ministerial satisfaction, and (b) the statutory language of s 36 after the 2014 amendments is narrower than Australia's international non-refoulement obligations, particularly regarding internal relocation. No later decision cited in the reasons has doubted the correctness of the two jurisdictional error findings.
Still-open questions
The judgment leaves open whether, in a case where the Minister expressly recognises that he could invite submissions but chooses not to do so for reasons of urgency or administrative efficiency, that choice would be reviewable for legal unreasonableness. It also leaves open the precise content of the obligation to consider non-refoulement outside the statutory protection criteria when the Minister is not bound to treat it as a mandatory relevant consideration. The court did not decide whether the power to invite submissions is a true discretion or merely an incident of the primary power, although it expressed a preference for the latter characterisation. Finally, the judgment does not resolve the interaction between s 501BA(2) and the non-compellable power under s 195A in circumstances where non-refoulement obligations are accepted but a Protection visa cannot be granted because of character criteria; that question was expressly left for another day.