Le v Minister for Immigration and Border Protection

The legislative regime 18 Subsection 501(2) of the Act provides: (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. 19 The nature of the "character test" is set out in subsection 501(6). Relevantly: (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … 20 Substantial criminal record is defined in subsection (7)(c) to mean; relevantly: (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or … 21 The Minister's conclusion that the applicant did not pass the character test is not in dispute. Rather, the dispute concerns the Minister's exercise of his discretion under s 501(2).

Failure to take into account a legal consequence of the decision 22 The applicant's originating application relies on a ground that: 5. The respondent failed to take into account that the applicant after 1 July 2014 would not be a Vietnamese citizen with consequences that the applicant would therefore be detained indefinitely in Australia or for a long period of time. 23 This ground, as argued, was that the respondent failed to take into account a relevant consideration, namely a legal consequence of the decision to cancel: that consequence being that the applicant is liable to indefinite detention in Australia. 24 Counsel for the applicant argued that the ITOA indicated that under Vietnamese law persons in the applicant's position who failed to register for retention of Vietnamese nationality by 1 July 2014 would lose their Vietnamese nationality. Counsel relied on the judgment of the Full Court in NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 for the proposition that the applicant faces indefinite detention, and that this is a consideration that must be taken into account. Counsel pointed out that the Minister's reasons did not mention the issue of whether or not the applicant had lost his Vietnamese nationality. 25 Counsel for the Minister submitted that the applicant has not necessarily lost his Vietnamese nationality, and that the judgment in NBNB does not require the Minister to take into account the possible loss of the applicant's Vietnamese citizenship. Counsel argued that, in any event, the Minister had taken this matter into account. Counsel submitted that even if the applicant has lost his Vietnamese nationality, it is not a necessary consequence that he will be permanently detained in Australia, as he may be granted a visa. Counsel also submitted that the Court should refuse relief in the exercise of its discretion because it was open for the applicant to register for the retention of his Vietnamese nationality, but he failed to do so. 26 There are four issues for the Court to consider: (a) What are the relevant legal, or statutory, consequences of the decision to cancel the visa? (b) Was the Minister bound to take into account those consequences? (c) Did the Minister take into account those consequences? (d) Should relief be refused in the exercise of the Court's discretion? 27 As to the first issue, the ITOA noted that under Vietnamese law, "overseas Vietnamese" without a Vietnamese passport would lose their Vietnamese nationality unless they registered for retention of their nationality by 1 July 2014. The ITOA was dated 16 May 2014 and was before the Minister. The 1 July 2014 deadline had passed by the time the Minister made his decision. There was no material before the Minister suggesting that the deadline had been extended by the Vietnamese government, or that the applicant had obtained a Vietnamese passport, or had registered for retention of his Vietnamese nationality. On the evidence before the Minister, the possibility that any of these events had occurred could only be the subject of speculation. Therefore, the material available to the Minister was consistent only with the applicant having already lost his Vietnamese nationality. 28 There are two judgments of the Full Court highly relevant to the outcome of this case. The first is NBNB, which has already been mentioned. The second is NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1. Both cases concerned the consequences of a decision of the Minister refusing the grant of a protection visa pursuant to s 501(1) of the Migration Act. In each case, there was a combination of four factors at work. First, the applicants were non-citizens who did not hold visas. Second, Australia's non-refoulement obligations meant that the applicants could not be returned to their country of origin. Third, ss 189, 196 and 198 of the Migration Act require the detention of a non-citizen until he or she is removed from Australia. Fourth, the consequence of the High Court's judgment in Al-Kateb v Godwin (2004) 219 CLR 562 was that the applicants faced the prospect of indefinite detention in Australia. 29 On the evidence before the Minister in the present case, the applicant had lost his Vietnamese nationality. A consequence of the cancellation of his visa is that he must be detained until removed from Australia; but he is stateless and cannot be removed from Australia in the foreseeable future. 30 However, counsel for the Minister submits that it is not a necessary consequence of these circumstances that the applicant will be indefinitely detained. Under s 195 of the Migration Act, a detainee may apply for a visa, and under s 195A, the Minister may grant a visa if the Minister thinks it is the public interest to do so. In NBMZ, the Full Court rejected such an argument, saying that the possibility of any visa under s 195A was merely a matter of speculation and the applicant was entitled to have his application determined on the hypothesis that he will be indefinitely detained: Allsop CJ and Katzmann J at [4], Buchanan J at [123]-[129] . The same position applies in this case. 31 It follows that a legal, or statutory, consequence of the Minister's decision to cancel the applicant's visa is that he faces indefinite detention in Australia. 32 The second issue to be considered is whether the Minister was required to take into account that the applicant faces indefinite detention. In NBMZ, Allsop CJ and Katzmann J held: [9] The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal. [10] The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia's obligation of non-refoulement and the terms of the Act. 33 Similarly, in NBNB, Allsop CJ and Katzmann J said: [2] …As in NBMZ, in the five decisions here, the Minister failed to take into account the mandatory consideration of the legal consequences of the decision being made in the context of Australia's obligation of non-refoulement: indefinite detention. 34 Accordingly, the Minister was required to take into account that the applicant would face indefinite detention if his visa were cancelled. 35 The third issue to be considered is whether the Minister did take into account that the applicant faced indefinite detention. 36 The Minister's reasons did not mention the prospect of indefinite detention. The reasons referred to the ITOA only in the context of whether Australia would breach its treaty obligations against non-refoulement by returning the applicant to Vietnam. The reasons did not refer to the information in the ITOA concerning the loss of the applicant's Vietnamese nationality. 37 In NBMZ, the position was similar. Allsop and Katzmann JJ said: [16] What was entirely absent from the briefing note, however, and also from the Minister's reasons was any attempt to confront the binary relational legal consequence of Australia's obligation under Art 33 and Australia's policy of mandatory detention: indefinite detention. It may be accepted, at one level of abstraction, that the Minister was aware of ss 189, 196 and 198 of the Act and of the High Court's decision in Al-Kateb. That, however, is not the point. A material omission from a briefing paper may affect the decision-making process based on it: Peko-Wallsend Ltd at 30-31, 45 and 65-66. Also, the written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [37], [69], [89] and [133]. (Underlining added.) 38 Counsel for the Minister submits that the Minister must be considered to have taken into account the whole of the ITOA, including the discussion of the loss of nationality. Counsel notes that the Minister said in para [41] of his reasons "Having given full consideration to all of these matters, I decided to exercise my discretion to cancel…". Counsel submits that this is an indication that the Minister must have taken into account the discussion in the ITOA concerning loss of Vietnamese nationality. 39 I do not accept that para [41] can be interpreted in this way. The reference to "all of these matters" is to the matters which the Minister had discussed earlier in his reasons. It is not a reference to all of the material that was before him. The Minister's reasons contain no reference to the possible loss of Vietnamese nationality or indefinite detention. 40 Counsel for the Minister also relies on the "catch-all" on the last page of the submission made to the Minister that the Minister had "considered all relevant matters…and all evidence before [him] provided by, or on behalf of, or in relation to Van Linh LE…". Paragraph 34 of the Minster's Statement of Reasons is also in similar terms. The references to "all relevant matters" must be to the matters which the Minister considered were relevant. The matters that the Minister considered were relevant were those set out in the Minister's reasons. Those matters do not include the possible loss of Vietnamese nationality or indefinite detention. 41 The "catch-all" does indicate that the Minister considered "all evidence before [him]". That evidence includes the ITO assessment, and the ITO assessment discusses the possible loss of Vietnamese nationality. I will assume, without deciding, that the "catch-all" is sufficient to indicate that the Minister took that issue into account. However, the ITOA makes no reference to the prospect that the applicant would be liable to indefinite detention in Australia. I therefore infer that the Minister did not take into account that the applicant faced indefinite detention. 42 I consider that the Minister failed to take into account a relevant consideration, namely that a legal consequence of the decision to cancel the visa was that the applicant faced the prospect of indefinite detention in Australia. This was a jurisdictional error. 43 Counsel for the Minister submits that the applicant should be refused relief in the exercise of the Court's discretion because he had not taken the opportunity of registering for the retention of his Vietnamese nationality. It is submitted that this would have avoided the prospect that he would be indefinitely detained in Australia. 44 It is true that the Court may refuse certiorari and mandamus on discretionary grounds. However, to succeed on this basis it would be at least necessary for there to be evidence that the applicant had the opportunity to register for retention of his Vietnamese nationality. This would require evidence that it was open to him to register, and that he could have registered after he became aware of the ITOA and before the deadline. There was no evidence before the Court about the procedure for registering, the time frame in which it could have been done and the practicality of obtaining registration in circumstances in which the applicant had left Vietnam some 29 years earlier. Therefore, the discretion should not be exercised to refuse the applicant relief.

Failure to take into account other considerations 45 The originating application contains the following grounds: 1. The respondent failed to properly assess the nature of the applicant's involvement in the criminal offence, failed to take into account that the applicant was not the principal offender, that the applicant did not use any firearms and that the applicant received a lesser sentence than the other co-offenders, each of those matters being a failure to take a relevant consideration into account. … 7. The respondent failed to take to a relevant consideration into account namely that the applicant had spent his formative years in Australia. 46 It may be noted that Grounds 1 and 7 are based only on the Minister's alleged failure to take into account relevant considerations, and not upon any allegation that the Minister failed to give proper, genuine and realistic consideration to the merits of the applicant's case. 47 In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, the Full Court considered an argument that the Minister was bound to take into account the remarks of the sentencing judge and appeal court as relevant considerations when deciding whether to cancel a visa under s 501(2) of the Migration Act. In the course of rejecting that argument, Kiefel and Bennett JJ said at [74]: If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister's part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. 48 Each of the factors relied upon by the applicant in Ground 1 comes within the description in Huynh of "circumstances surrounding the offences". The factor described in Ground 7, namely that the applicant had spent his formative years in Australia, is a factor that is "personal to the visa holder". It follows from Huynh, that these are not "relevant considerations" that the Minister was bound to take into account. 49 Counsel for the applicant submitted that Huynh should not be followed, arguing that in the 10 years since that case was decided it has not been followed, or has at least been doubted, by other judgments of the Full Court. 50 In NBMZ, Allsop CJ and Katzmann J at [25]-[26] indicated that the Minister may be obliged to take into account the individual circumstances of the applicant, deriving from the Minister's obligation to undertake a proper, genuine and realistic consideration of the merits of the particular case: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, approved in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at 174-175 [26]. In NBNB at [118]-[123] and NBMZ at [153], Buchanan J took a similar view. In NBMZ, Allsop CJ and Katzmann J said at [27] that the views of the majority in Huynh at [71] - [76] may require reconsideration, but their Honours did not then embark on such reconsideration. Therefore, the views of the majority in Huynh were not departed from. 51 In Moana v Minister for Immigration and Border Protection [2015] FCAFC 54, North J and I decided that the risk of harm to the Australian community posed by the visa holder remaining in Australia is a relevant consideration that the Minister is bound to take into account in exercising the discretion under s 501(2). In Huynh, Keiffel and Bennett JJ held at [74] that the Minister is not obliged to consider "specific factors, personal to the visa holder". The relevant consideration identified in Moana is cast at a higher level of abstraction and a lower level of particularity than the factual matters considered in Huynh: cf Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [22]-[23], per Gleeson CJ and McHugh J. The risk of harm to the Australian community is not a "specific factor, personal to the visa holder". Nothing said in Moana is inconsistent with the view of the majority in Huynh. In fact, in Moana, it was accepted at [74] that Huynh remains direct authority for the proposition that factors personal to the applicant are not relevant considerations that the Minister is bound to take into account. 52 There is no basis for a single judge to fail to apply the judgment of the majority in Huynh. The applicant cannot succeed on the first and seventh grounds of the originating application.

Proper, genuine and realistic consideration of the merits of the applicant's case 53 The applicant's originating application contains the following grounds: 3. The respondent failed to properly assess the nature of the offences and hence failed to conduct a proper, genuine and realistic consideration to the merits of the applicant's case which is a jurisdictional error. 4. The respondent failed to properly assess the applicant's rehabilitation and hence failed to conduct a proper, genuine and realistic consideration to the merits of the applicant's case which is a jurisdictional error·. 54 The applicant's counsel did not advance any submissions concerning the fourth ground. 55 The third ground, as argued, was that the Minister failed to understand that the applicant received a lower sentence than his co-offenders and that the applicant's conduct was less serious than that of his co-offenders. The applicant's counsel pointed to para 10 of the Statement of Reasons, where the Minister said: 10. The sentencing judge noted that Mr LE's criminal history was less serious than his co-offenders' but found that the severity of the offending did not warrant a distinction between the penalties to be imposed on his co-offenders. 56 The applicant's counsel submitted that this passage demonstrates a misunderstanding of the sentencing judge's remarks. Counsel submitted that properly understanding the substantial issues in the case is essential to giving proper, genuine and realistic consideration to the merits of the case. 57 I accept that para 10 of the Minister's reasons demonstrates a misunderstanding of the sentencing judge's remarks. The sentencing judge was not satisfied that the applicant had fired a gun. The applicant was sentenced on the basis that his participation was by driving the others to the scene and by remaining and in some way assisting or encouraging the others. His Honour noted that the applicant had the least serious criminal history, but that the differences between the respective criminal histories would not warrant a distinction between the respective penalties "if the circumstances of their offending in this case do not otherwise warrant that". His Honour considered that while the applicant's participation was a very serious matter, his conduct was distinguishable from that of the co-offenders and warranted a somewhat lesser head sentence. The sentencing judge then imposed lesser sentences on the applicant than those of his co-offenders. 58 In summary, the Minister was in error when he said that the sentencing judge found that the severity of the offending did not warrant a distinction between the penalties to be imposed on the applicant and those imposed on his co-offenders. The sentencing judge expressly found that there was such a distinction to be made. 59 Counsel for the Minister submits that the applicant's submissions misunderstand the expression "proper, genuine and realistic consideration" as it is used in the authorities. 60 It is sufficient to say that the applicant has not pointed to any authority which indicates that a mere misunderstanding of a factual matter amounts to jurisdictional error on the basis that the decision maker has failed to give proper, genuine and realistic consideration to the merits of the applicant's case. The Minister's misunderstanding was not a misunderstanding of the statutory scheme or the legal consequences of the decision of the type described by Buchanan J in NBMZ at [153]. The misunderstanding was not one resulting in failure to respond to a substantial argument of the type described in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]. It was an error of fact, and was an error within jurisdiction. In my opinion, the applicant's third ground is no more than an impermissible attempt at judicial review for an error of fact dressed up in the language of jurisdictional error: cf Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], per Basten JA. This ground cannot succeed.

Conclusion 61 I have concluded that the Minister fell into jurisdictional error by failing to take into account a relevant consideration, namely a legal consequence of the decision to cancel the applicant's visa. That consequence was that the applicant faces indefinite detention in Australia by reason of the cancellation of his visa. 62 The Court will order that a writ of certiorari issue directed to the Minister quashing his decision. The Minister should pay the applicant's costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.