JNMQ v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-11-27|Before: Jackman J

The amended application dated 13 September 2024 be dismissed.
The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKMAN J: 1 This is an application for judicial review of a decision made personally by the respondent (Minister) on 24 June 2024 pursuant to s 501A(3) of the Migration Act 1958 (Cth) (the Act) to set aside a decision of the Administrative Appeals Tribunal (the Tribunal) and to refuse to grant the applicant a Resolution of Status (Class CD) visa. 2 The applicant is an Iraqi citizen of Kurdish background. The applicant's mother was Christian. On 14 December 2012, the applicant arrived in Australia with his two-year-old daughter who is affected by spina bifida. The applicant converted to Christianity after his arrival in Australia. 3 On 27 September 2016, the applicant was assessed as engaging Australia's protection obligations under s 36(2)(a) of the Act, and both the applicant and his daughter were granted temporary protection visas (TPVs). On 25 September 2019, the applicant lodged an application for a Safe Haven Enterprise (Class XE) visa (SHEV) and included his daughter as a dependent. 4 On 16 December 2019, the applicant was found guilty of two criminal offences and went to prison while awaiting sentencing. On 16 March 2020, the applicant was sentenced to a term of imprisonment of four years. He was only required to serve 16 months of the sentence in prison, on condition that he did not commit another offence punishable by imprisonment within a period of five years after release. The length of the applicant's sentence meant that on 17 June 2020, the applicant's TPV was mandatorily cancelled under s 501(3A) of the Act. 5 On 18 June 2020, the applicant made representations seeking revocation of the mandatory cancelation of the TPV. When the applicant was released from prison on 15 April 2021, the applicant did not have a visa and was detained under s 189(1) of the Act. On 19 August 2021, a delegate for the Minister issued an Indicative Positive Assessment for Safe Haven Enterprise (Class XE) visa. On 6 October 2021, the Minister personally exercised his discretion under s 501CA(4) of the Act not to revoke the decision to cancel the applicant's TPV. 6 On 12 September 2022, a delegate of the Minister exercised the discretion under s 501(1) of the Act to refuse to grant the SHEV. The applicant applied to the Tribunal for review of the delegate's decision exercising the discretion under s 501(1) of the Act to refuse to grant the SHEV. 7 On 14 February 2023, by operation of the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023 (Cth), the applicant's application for a SHEV was taken to be, and always to have been, an application for a Class CD Subclass 851 Resolution of Status Visa. 8 On 8 November 2023, the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 415 ALR 254 was handed down. As a consequence of the orders made in NZYQ, the applicant was released into the community. 9 On 7 December 2023, the Tribunal set aside the delegates' decision of 12 September 2022 and remitted the matter for reconsideration with a direction that the discretion in s 501(1) of the Act to refuse to grant the visa is not to be exercised. 10 On 24 June 2024, the Minister personally made a decision under s 501A(3) of the Act to set aside the decision of the Tribunal dated 7 December 2023 and refuse the applicant's application for a Class CD Subclass 851 Resolution of Status visa. It is that decision which is the subject of the present application.

The Minister's Reasons 11 Before addressing the grounds of the application, it is necessary to summarise the key aspects of the Minister's reasons of 24 June 2024. 12 The Minister identified correctly the basis upon which his power under s 501A(3) arose, namely if the Minister reasonably suspected that the person did not pass the character test and the Minister was satisfied that the refusal decision was in the national interest: [6]. The Minister observed that the rules of natural justice and the code of procedures set out in Subdivision AB of Division 3 of Part 2 did not apply to a decision under s 501A(3) (at [7]) and that the power in s 501A(3) may only be exercised by the Minister personally (at [8]). 13 The Minister noted that he could have instead elected to consider refusal of the applicant's visa application under s 501A(2) which is subject to the rules of natural justice, and he went on to explain the manner in which that power is different: [13]. The Minister stated that he had decided to make a decision under s 501A(3)(b) without natural justice, noting that the exercise of his s 501A(3)(b) power would have real and practical consequence for the applicant and his family: [14]. The Minister indicated that he had given consideration to the materials before him (at [15]) and acknowledged that he had had regard to the fact that the applicant would not have access to merits review of the decision (at [16]). 14 In relation to the substance of his decision, the Minister found that the applicant did not pass the character test because he had a substantial criminal record as defined in ss 501(6)(a) and 501(7)(c): [20]. Accordingly, the Minister was satisfied that the precondition in s 501A(3)(c) to the exercise of power in s 501A(3) was met: [23]. 15 In relation to the question of the national interest, the Minister considered whether he was satisfied that the refusal of the applicant's visa was in the national interest under s 501A(3) of the Act: [24]-[82]. The Minister had regard to matters including the protection of the community (focusing on the seriousness of the criminal conduct and the risk to the Australian community), the expectations of the Australian community, and the legal consequences of his decision. The Minister concluded that the use of his discretionary power to refuse to grant the applicant the visa was in the national interest: [82]. 16 The Minister ultimately decided to exercise his discretion to set aside the Tribunal's decision and refused to grant the applicant the visa: [109]-[110]. 17 In his further amended application dated 13 September 2024, the applicant advances two grounds. Grounds 1, 4, 5 and 6 of the original application are not pressed.

Ground 2 18 In ground 2, the applicant asserts that the Minister erroneously thought that the effect of s 501A(3) of the Act was that he was precluded from affording natural justice to the applicant, and not merely that he was not required to do so, and that the Minister acted on that incorrect understanding of the law in making the visa refusal decision. 19 This ground proceeds on a misreading of the Minister's reasons. The Minister's reasons reveal that he was well aware that he had a power to set aside the Tribunal's decision and refuse the visa requiring procedural fairness, and that he also had power to set aside the Tribunal's decision and refuse the visa without requiring procedural fairness: [6]-[7] and [13]-[14]. The Minister chose the latter, acknowledging the consequences for the applicant of taking that course: [14]-[16]. It is true that the Minister was not prohibited from affording the applicant procedural fairness in connection with the exercise of power under s 501A(3). However, it is plain from the Minister's reasons that the Minister chose deliberately to adopt a decision-making pathway that did not require the applicant to be afforded procedural fairness. That points, obviously, to a choice by the Minister that he would not give the applicant procedural fairness. 20 Contrary to the applicant's submissions, the Minister's reasons at [10]-[12] do not suggest that the Minister believed that by proceeding under s 501A(3) he could not ameliorate the consequences for the applicant of the absence of the provision of natural justice. Rather, those paragraphs of the Minister's reasons indicate that the Minister consciously chose to adopt a decision-making process by which he was permitted to exercise the power without affording the applicant natural justice. That conscious choice and its consequences are evident from the Minister's reasons at [13]-[14]. As the Minister submits, it makes no sense to suggest that the Minister chose to adopt a decision-making course that permits natural justice not to be afforded (as he was free to do), but having done so, then failed to consider affording the applicant natural justice in any event. The Minister's reasons reveal his awareness of the differences between s 501A(2) and (3), and that the latter did not require natural justice to be given to the applicant. 21 Accordingly, ground 2 does not establish jurisdictional error in the Minister's decision.

Ground 3 22 The applicant contends that there is illogicality in the Minister's attribution of significant weight to the consideration of the protection of the Australian community in deciding that it was in the national interest to set aside the Tribunal's decision and to refuse to grant him the visa. The applicant submits that the Minister could not rationally or logically have given significant weight to the protection of the Australian community towards his satisfaction of the national interest in circumstances where: (a) the concomitant outcome of the refusal decision was that the applicant would not be taken into detention and would continue to reside in the community, as the Minister found at [74]; and (b) the Minister deferred his consideration of the type of visa on which the applicant should reside "following further advice from the Department". 23 I should note in passing that it is common ground between the parties that in the first line of [74] of the Minister's reasons, the reference to s 501A(2) is a typographical or clerical error and should refer to s 501A(3). 24 The Minister made the finding at [74] in the context of considering the legal consequences of his decision, which included taking into account the effect on the applicant of the High Court's judgment in NZYQ. The Minister also acknowledged (at [78]) that the applicant was presently the holder of a bridging visa R (granted on 21 March 2024) but that the effect of s 501F(3) of the Act was that any other visas held by the applicant would be cancelled by operation of law ([2]). It was presumably for that reason that the Minister intended to separately consider the type of visa on which the applicant should reside and conditions to be imposed on that visa: [74]. 25 The question of what is in the national interest in a particular case is largely a political question: ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 410 ALR 1 at [11] (Kiefel CJ, Gageler and Jagot JJ), [93] (Gordon, Edelman, Steward and Gleeson JJ). It is common ground that in relation to the Minister's formation of a state of satisfaction as to the national interest under s 501A(3), the state of satisfaction must be reached reasonably: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565 at [140] (Besanko J, with whom Allsop CJ, Kenny, Kerr and Charlesworth JJ agreed). The Minister also accepts that he was required, in forming a state of satisfaction under s 501A(3), to consider the legal consequences of his decision, but limited to the inevitable and direct legal consequences of the decision: BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 110; (2023) 298 FCR 609 at [101] (Perry J, with whom Bromwich and Kennett JJ relevantly agreed); and NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [17] (Allsop CJ and Katzmann J), [177]-[179] (Buchanan J). 26 As the Minister submits, the applicant's submissions cannot be accepted on a fair reading of the Minister's reasons. As I have said above, the assessment of the national interest is an evaluative political judgment reposed in the Minister personally. Irrespective of whether there is a duty to consider the risk to the Australian community, there is no duty or obligation to evaluate that risk in any particular way or to ascribe any particular characterisation to the quality of that risk: AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451 at [53]-[55] (Allsop CJ, Robertson and Griffiths JJ). 27 As the Minister submits, it was logical and rational for the Minister to give significant weight to the protection of the Australian community in assessing whether the national interest favoured the applicant being granted an indefinite right to remain in Australia. As the Minister submits, not only does a permanent visa entitle its holder to an indefinite right to remain in Australia, but permanent residency is one of the criteria for a non-citizen seeking conferral of Australian citizenship: s 22(1)(c) of the Australian Citizenship Act 2007 (Cth). Thus, the question for the Minister's consideration when assessing the protection of the Australian community was not simply whether the applicant would be removed from the community upon the refusal of the visa. This is reflected in the Minister's reasons at [53], in which the Minister referred to the applicant having applied for a Class CD Subclass 851 Resolution of Status Visa for the purpose of remaining permanently in Australia, and stated that he had considered the risk of harm to the Australian community in the context of the permanent stay period and specific purposes of the visa application. 28 The applicant also submits that it was irrational for the Minister not to have reduced the weight to be placed on the protection of the Australian community by reference to the finding at [74] that the applicant would continue to reside in the community in circumstances where the fact of the applicant's continuing residence in Australia was used by the Minister to reduce the weight on other factors that were positive to the applicant. Although the applicant sought to disavow the proposition, the applicant's argument is essentially a challenge to the weight the Minister sought to attribute to the protection of the Australian community, which is well established to be a matter for the decision-maker and which does not result in jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 41 (Mason J, with whom Gibbs CJ and Dawson J agreed). 29 Accordingly, ground 3 also fails to identify jurisdictional error in the Minister's decision. The amended application should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.

Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023(Cth)

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