Luong v Minister for Immigration, Citizenship and Multicultural Affairs

The Minister's reasons 9 The Minister identified in his reasons dated 10 June 2024 (Reasons) that s 501BA enabled him, acting personally, to set aside a decision of the Tribunal and to cancel a person's visa if he was satisfied that the person did not pass the character test because of the operation of s 501(6)(a) (on the basis of s 501(7)(a), (b) or (c)) or s 501(6)(e) and the Minister was satisfied that the visa cancellation was in the national interest: Reasons [7]. 10 The Minister observed that the rules of natural justice do not apply to a decision under s 501BA(2). The Minister stated that he had decided to proceed to make a decision under s 501BA(2) without giving the applicant an opportunity to be heard, although he was aware that s 501BA(3) did not prohibit him from affording the applicant such an opportunity (Reasons [8]-[9]). The Minister indicated (at Reasons [10]) that he had given consideration to the information given by the applicant in relation to the applicant's original request for revocation and to the information that was before the Tribunal. 11 The Minister found that the applicant did not pass the character test because he had a substantial criminal record as defined by s 501(7)(c) of the Act. Accordingly, the Minister was satisfied that the precondition in s 501BA(2)(a) to the exercise of power in s 501BA(2) was met: Reasons [13]. 12 The Minister considered whether he was satisfied that the cancellation of the applicant's visa was in the national interest. 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) and the expectations of the Australian community. The Minister concluded (at Reasons [54]) that the use of his discretionary power to cancel the applicant's visa was in the national interest. 13 The Minister's determination that he was so satisfied was based upon the following evaluative factual findings: (a) The applicant's criminal conduct involved offending against a child (aged 16 at the time). The applicant stabbed the victim in the back three times with a pair of scissors after the victim had been physically attacked by multiple individuals. If untreated, the victim would have died. As a crime of a violent nature against a child, it was viewed as very serious (Reasons [19]-[28]). (b) There was a risk of reoffending, albeit that the risk was low. Any reoffending of a like kind could have consequences so serious (the potential death of a child) that any risk that it could be repeated was unacceptable (Reasons [29]-[45]). (c) The expectation of the Australian community was that persons who have committed a serious violent crime against a child should not continue to hold visas (Reasons [46]‒‍[52]). 14 The Minister then considered whether there were other considerations that might support a decision not to cancel the applicant's visa on discretionary grounds despite being satisfied that it was in the national interest to do so. The Minister (at Reasons [57]-[94]) had regard to the best interests of minor children, the applicant's ties to Australia, the legal consequences of the decision (noting the applicant had not made any claims requiring assessment in relation to Australia's non-refoulement obligations) and the impediments that the applicant would face if removed from Australia. 15 The Minister ultimately decided to exercise his discretion to set aside the Tribunal's decision and cancel the applicant's visa.

Grounds of application 16 By his amended application dated 10 September 2024, the applicant advances three grounds. Ground 2(b) is not pressed.

Ground 1 17 Ground 1 asserts that the Minister acted on an incorrect understanding of the meaning of the term "national interest" and therefore acted outside of his jurisdiction to set aside a decision of the Tribunal under s 501BA of the Act. 18 The applicant contends that there is a limit to what may be described as the "national interest". In the present case there was said to be nothing of national significance in the applicant's offending. The circumstances of that offending were said to be "local" involving a single violent offence committed at a young age that occurred in the context of unwanted sexual advances the victim had made towards the applicant's girlfriend. There was no involvement of organised crime, the applicant was imprisoned for 18 months (although sentenced to three years) and there was nothing about the offending that had national implications. There was nothing in the Minister's reasons that suggested that the Minister had doubted the correctness of the sentencing imposed by the Court or that the Minister had formed a view that the Tribunal erred in its reasoning. 19 The applicant referred to the reasons of Gaudron J in Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [80] where her Honour said that where the same conduct is relied upon for a determination that a person does not pass the character test, and for satisfaction of the national interest criterion: there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned. 20 The applicant's submissions are also consistent with the views expressed by Kirby J in Patterson at [332]. 21 The applicant's arguments are similar to those put by the applicant in NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21 although in that case they were framed in terms of legal unreasonableness. 22 For the following reasons, the applicant's submissions in respect of ground 1 are not accepted. 23 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; 278 CLR 75 at [11] (Kiefel CJ, Gageler and Jagot JJ) and [93] (Gordon, Edelman, Steward and Gleeson JJ). In the context of s 501BA of the Act, the assessment of the national interest is an evaluative political judgment reposed in the Minister personally. In exercising his power, the Minister "may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister's continuance in office": Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231 at [18] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ), citing Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 at [50] (Gaudron, Gummow and Hayne JJ). 24 The Minister's discretion is broad and evaluative but not unbounded (see Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ)). It is not unbounded because, amongst other things, the Minister's formation of a state of satisfaction as to the national interest under s 501AB(3) of the Act must be reached reasonably: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 at [140] (Besanko J, with whom Allsop CJ, Kenny, Kerr and Charlesworth JJ agreed). 25 Although national interest considerations are separate and distinct from the question of whether or not a person passes the character test, the matters which result in a person failing the character test may also (but will not always) provide the foundation for the Minister's satisfaction that it is in the national interest that the person's visa be cancelled: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; 294 FCR 270 at [85] (Thomas J); Patterson at [78]-[80] (Gaudron J). 26 The national interest in the context of s 501BA is essentially a political evaluation for the Minister. The statutory power under s 501BA has been reposed in a Minister personally, a person who is accountable to the electorate and to Parliament. The views expressed by Kirby J in Patterson were not endorsed by the Full Court of this Court in Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326 at [89] (French, O'Loughlin and Whitlam JJ): the bar of national interest does not seem to be set that high by the words of the Act which must be the primary guide to legislative intention. The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained "reasonably". 27 The safety of the community is a rational consideration in determining the national interest. It is logical and rational for the Minister to give significant weight to the protection of the Australian community in assessing whether he was satisfied that it was in the national interest for the applicant's visa to be cancelled. The Minister looked at the nature and seriousness of the conduct of the applicant in forming his state of satisfaction. He did not err in so doing. 28 The expectations of the Australian community are likewise a rational consideration in determining the "national interest". Given the political nature of the question involved, a failure to cancel a visa contrary to community expectations may cause discord in the Australian community and bear upon the political fortunes of the government of which the Minister is a member. The Minister did not err in taking into account the expectations of the Australian community in forming his state of satisfaction in relation to the national interest. 29 It is not a precondition to the exercise of the power in s 501BA of the Act for the Minister to be satisfied that the Tribunal erred. The scheme of the legislation is that the Minister has the power to set aside the Tribunal's decision if the two criteria in s 501BA(2) are met. There was no requirement for the Minister to "rebut" the reasoning of the Tribunal or to form a view that the Tribunal's decision was wrong. As Mortimer J (as her Honour then was) observed in Tereva at [28]: The power in s 501BA is an override power. While it takes as its jurisdictional precondition a favourable decision of the Tribunal, there is nothing in the text, context or purpose of the provision which supports an implication that the Minister is required to "rebut" the reasoning of the Tribunal. Given the precondition, it may be an error for the Minister not to consider the Tribunal's reasoning at all. However, the Minister's power is differently conditioned, by the concept of the national interest, and there is no basis to import into the lawful exercise of that power a requirement that the Minister needs to refute the reasoning of the Tribunal. Indeed, this is a feature contributing to the draconian nature of the power. The Minister is empowered, subject to remaining within the boundaries of the concept of the "national interest", and the boundaries of legal reasonableness and rationality, to simply take an entirely different view of the facts and circumstances to that taken by the Tribunal. 30 The Minister here did consider the Tribunal's reasoning and the findings made by the Tribunal (see Reasons at [28], [41], [51], [68], [88]). He turned his mind to the considerations which the Tribunal took into account. He formed a different view of the facts and circumstances when examined through the lens of the "national interest". 31 At a general level, many of the matters raised by the applicant were in the nature of disagreement with the discretion exercised by the Minister, which included the Minister's judgement and opinion regarding the implications of the applicant's conduct. The task of the Court in this case is not to undertake merits review or to substitute the Court's opinion for that of the Minister. It is to determine whether the decision was one made lawfully. 32 Ground 1 is rejected.

Ground 2(a) 33 Ground 2(a) asserts that the Minister acted legally unreasonably in declining to afford the applicant an opportunity to be heard before making his decision to cancel the applicant's visa, given that the Minister made his decision some 13 months after the Tribunal's decision was made and the applicant had been living freely in the community during that period. 34 The Minister's reasons reveal that he was well aware that he had a power to set aside the Tribunal's decision and cancel the visa without affording procedural fairness, although he recognised that s 501BA(3) of the Act did not prohibit him from affording such an opportunity: Reasons [8] (and cf Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12). The Minister acknowledged that as a consequence the applicant did not have the opportunity to advance reasons why an adverse decision should not be made. The Minister chose deliberately to adopt a decision-making pathway that did not require the applicant to be afforded procedural fairness: Reasons [9]. 35 That was a choice that the Minister was free to make under the legislative scheme. Section 501BA(3) of the Act expressly provides that the rules of natural justice do not apply to the making of a decision under s 501BA(2). As was recognised recently in Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154 at [116] (Derrington and Hespe JJ), the content of the rules of procedural fairness and the principles of unreasonableness are constrained by the statutory context. Unreasonableness as a ground of review cannot operate to indirectly confer an entitlement to procedural fairness as a matter of course where the statutory scheme otherwise expressly excludes such an entitlement. 36 Although it is possible that a failure to request further information from an applicant might constitute legal unreasonableness, those circumstances will be exceptional in a context in which the legislature has expressly conferred a power on the Minister to make a decision without requiring the affording of natural justice. The only fact that the applicant pointed to in support of a contention that the failure to afford an opportunity to be heard amounted to legal unreasonableness was the fact that the applicant had been living freely in the community for 13 months since the Tribunal's decision. 37 In the present case, the Minister took into account the material that had been before the Tribunal. He also took into account the fact that since being released into the community from immigration detention (following the Tribunal's decision) the applicant had not been convicted of any further offending and may have since made further rehabilitative efforts: Reasons [42]. The logical inference from the Reasons is that the Minister considered he had sufficient probative material to support the findings he was inclined to make (like the circumstances in Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [36] (McKerracher, Markovic and SC Derrington JJ)). In the circumstances, the Minister did not act outside the bounds of reasonableness in not seeking further submissions from the applicant. 38 Ground 2(a) is not established.

Ground 3 39 By Ground 3, the applicant asserts that the Minister's decision was legally unreasonable because its result is "disproportionate". Its result was described as "taking a sledgehammer to crack a nut," quoting French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [30]. It was submitted that the sentence imposed on the applicant by the County Court of Victoria was proportionate and the decision of the AAT was proportionate. There was nothing particularly outstanding about the behaviour and the possible future risk the applicant may pose for it to be in the national interest for him to be deported from Australia. 40 Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker: Li at [28]-[29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [80] (Nettle and Gordon JJ). A decision which is legally unreasonable is beyond power: SZVFW at [80] (Nettle and Gordon JJ). 41 Legal unreasonableness may be established if the final conclusion is found to be legally unreasonable without necessarily identifying any particular error in the reasoning. The question is whether the result of the decision is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances: Palmer at [159] (Derrington and Hespe JJ). 42 This may be established if the decision falls outside a range of possible, acceptable outcomes which are defensible in respect of the facts and law: SZVFW at [82] (Nettle and Gordon JJ); Li at [105] (Gageler J). Legal unreasonableness is fact dependent. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power: SZVFW at [84] (Nettle and Gordon JJ). 43 In Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; 297 FCR 162, Mortimer CJ at [81] identified the nature of an error which can constitute legal reasonableness: To reach a conclusion that an exercise of power is legally unreasonable involves a level of confidence on judicial review that either the outcome of the exercise of power, or the reasoning that led to that outcome (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]) so departed from the underlying premises of the exercise of public power that it has resulted in the power entirely miscarrying, in effect being an abuse of power. See generally Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) at [80] (Nettle and Gordon JJ). In this context, the term "abuse" of power refers to an exercise of power other than for the purposes and within the limits conferred. 44 As explained at paragraph 24 above, the discretion afforded to the Minister under s 501BA(2) of the Act is broad and evaluative. The bounds of legal reasonableness must take account of that statutory context. A conclusion as to legal unreasonableness is not to be reached lightly: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ), citing SZVFW at [11] (Kiefel CJ), [52] (Gageler J), [89] (Nettle and Gordon JJ) and [135] (Edelman J). In the present case, the Minister's reasons revealed an evident and intelligible justification for the outcome: see Li at [76] (Hayne, Kiefel and Bell JJ). Divergence from the Tribunal's opinions and reasoning was not itself evidence of lack of proportionality, or legal unreasonableness: Tereva at [25] (Mortimer J). The Minister's conclusion cannot be described as an exercise of power that was outside of the scope of the broad power conferred upon him and therefore legally unreasonable. 45 Accordingly, ground 3 fails.

Habeas corpus 46 The relief sought by the applicant included a writ of habeas corpus. The applicant contended that having sought such relief, the onus was on the Minister to prove the applicant's detention was lawful and therefore the onus was on the Minister to prove the lawfulness of his decision to cancel the applicant's visa under s 501BA of the Act. 47 The applicant's submission is not accepted. As a result of the cancellation of his visa, the applicant was prima facie lawfully in detention pending his removal from Australia. There was no claim of non-refoulement. The applicant's detention would become unlawful if the Court were to conclude the Minister's decision was unlawful. The applicant was required to demonstrate that the Minister's cancellation decision was unlawful and has not discharged his initial evidentiary burden of establishing that there is a reason to suppose his detention has ceased to be lawful: Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 at [39] (Kiefel CJ, Keane, Nettle and Edelman JJ); NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 at [59] (the Court). There is no basis for the issue of a writ of habeas corpus.

Conclusion 48 The amended application should be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.