Consideration
43 The issue raised by the application is whether (as the Minister contends) the Tribunal fell into jurisdictional error by failing to conclude that CBW20's application for a SHEV was invalid. As explained in the Introduction to these reasons, this turns on the validity of the earlier grant of the Temporary Safe Haven visa to CBW20.
44 The following matters are common ground between the parties:
(a) CBW20 is not, and never has been, an unauthorised maritime arrival. It follows that, at least prior to the grant of the Temporary Safe Haven visa, CBW20 was not barred from applying for a protection visa (such as a SHEV).
(b) When purporting to grant the Temporary Safe Haven visa to CBW20, the Minister proceeded on the basis that CBW20 was an unauthorised maritime arrival (which he was not).
(c) It was open to the Tribunal to determine whether the grant of the Temporary Safe Haven visa was valid, so as to determine the validity of the application for a SHEV.
(d) If the grant of the Temporary Safe Haven visa was invalid, then s 91K was not engaged and CBW20's application for a SHEV was valid.
45 Although the Tribunal structured the relevant part of its reasons under three sub-headings - the First Reasoning, the Second Reasoning and the Third Reasoning - in CBW20's outline of submissions in this proceeding it was submitted that the third section did not in fact provide a separate reason. In oral submissions, senior counsel for the Minister accepted that analysis. Accordingly, the "Third Reasoning" can be put to one side for present purposes.
46 Given that the Tribunal's "First Reasoning" and "Second Reasoning" provide alternative bases for the Tribunal's conclusion, senior counsel for the Minister accepted in oral submissions that the Minister needed to show error in both parts of the Tribunal's reasoning in order to succeed in the application.
47 The Minister's submissions in relation to the Tribunal's "First Reasoning" can be summarised as follows:
(a) The Tribunal appears to have reasoned that, because it did not have the power to invalidate the Minister's purported determination under s 46A(2), it could not determine whether the SHEV application, which was made consequent upon the Minister's purported exercise of that power, was invalid. Yet the Tribunal also appears to have reasoned that the SHEV application was made valid by the Minister's purported determination.
(b) However, the determination of the validity of the Minister's purported determination under s 46A(2) was not a condition on the Tribunal's power to determine the validity of the SHEV application. And even if it were, the Tribunal could have formed a view about the validity of the purported exercise of power under s 46A(2) to form a view as to whether the SHEV application was valid. The latter question required the Tribunal to consider whether or not the bar in s 91K was engaged. That question, in turn, required the Tribunal to ask itself whether CBW20 had not left Australia since ceasing to hold a Temporary Safe Haven visa (s 91J). Despite being under a duty to determine the validity of the visa application, the Tribunal did not turn its mind to these questions.
(c) It also appears that the Tribunal elided the distinction between the validity of the visa application, on the one hand, and the validity of the review application made under s 412 of the Migration Act, on the other: see the Tribunal's reasons at [43], [46].
(d) If, as the Minister submits, the bar in s 91K was engaged, CBW20's SHEV application was invalid by force of s 46(1)(e)(v). Insofar as the Tribunal found otherwise, purported to review the merits of the SHEV application, and remitted the matter to the Minister with a direction that the criterion in s 36(2)(a) had been met, the Tribunal purported to exercise powers that it did not have under s 415.
48 The Minister's submissions in relation to the Tribunal's "Second Reasoning" can be summarised as follows:
(a) The Tribunal appears to have considered that the grant of the Temporary Safe Haven visa in October 2014 was invalid for two reasons.
(b) First, the grant of the Temporary Safe Haven visa "was purportedly done to prevent [CBW20] from applying for a protection visa in Australia": Tribunal's reasons, [51]. However, there was nothing in the evidence before the Tribunal, particularly the October 2014 Submission, to support that finding. The evidence was silent as to whether, in granting the Temporary Safe Haven visa to CBW20, the Minister was motivated by the fact that that grant would, at a time when he genuinely believed that CBW20 was an unauthorised maritime arrival, engage the bar in s 91K. In any event, even if one of the purposes of the grant of the Temporary Safe Haven visa was to engage the bar in s 91K, that is not an improper purpose or one which is beyond the power conferred by s 195A: Plaintiff M79/2012 at [41]-[42], [107], [127]-[135].
(c) Secondly, the Tribunal appears to have reasoned that the grant of the Temporary Safe Haven visa was unlawful because the Minister acted on an incorrect factual basis, namely, that CBW20 was an unauthorised maritime arrival because he entered Australia by sea at an excised offshore place: Tribunal's reasons, [62]. The statement in the October 2014 Submission that CBW20 (amongst others) was an "illegal [sic] maritime arrival" and, therefore, was prevented from making a valid protection visa application, was factually incorrect in the light of DBB16. However, that incorrect statement was not, itself, sufficient to vitiate the grant of the Temporary Safe Haven visa to CBW20. A decision made by an administrative decision-maker such as a minister of state is not vitiated by the mere fact that it was made consequent upon the receipt of advice from his or her department that was factually incorrect: see Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386 (Arnold) at [130]; Oates v Attorney-General (2001) 181 ALR 559 at [133]; Zentai v O'Connor (No 3) (2010) 187 FCR 495 (Zentai) at [88], [357]; Vasiljkovic v O'Connor (2010) 276 ALR 326 at [95], [110]; Brock v Minister for Home Affairs [2010] FCA 1301 at [71]; O'Donoghue v O'Connor (No 2) (2011) 283 ALR 682 at [32(b)]; Hala v Minister for Justice [2014] FCA 457 at [23]. To vitiate the decision, the incorrect information "must have been supplied … in effect, in bad faith" (Zentai at [362]) or "the matter the subject of the advice is a matter which the statute mandates must be taken into account by the relevant decision maker" (Arnold at [134]). There was no evidence before the Tribunal to support the former proposition. Nor does the latter apply, as it was not an express or implied condition on the valid grant of a Temporary Safe Haven visa that the grantee be an unauthorised maritime arrival.
(d) Further, the present case did not involve the provision to the Minister of a departmental submission that was "seriously misleading as to the facts": see Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 (Barrett) at 133; see also Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [86], [122].
(e) Insofar as the Tribunal relied on Plaintiff S4/2014, the present case is distinguishable. There was nothing in the evidence before the Tribunal to suggest that the Minister had decided to consider whether to exercise the power in s 46A(2) prior to his decision to grant a Temporary Safe Haven visa to CBW20 under s 195A(2). The Tribunal's assumption to the contrary (at [71]) was wrong.
(f) However, even if the Tribunal's assumption at [71] were not wrong, it does not matter, for the power in s 46A(2) was never enlivened in the first place: CBW20 was not an unauthorised maritime arrival. It is a condition on the valid exercise of the power in s 46A(2) that the non-citizen in respect of whom the Minister has decided to consider whether to exercise that power be an unauthorised maritime arrival. Here, CBW20 was not, at any time prior to the grant of the Temporary Safe Haven visa, an unauthorised maritime arrival. Consequently, the Minister could not validly have decided to consider exercising the power in s 46A(2), or to exercise that power. Unlike Plaintiff S4/2014, it cannot be said that the exercise of power under s 195A(2) was required to be read as not permitting the making of a decision that would foreclose the exercise of power under s 46A(2), for the latter never had any operation.
49 In our view, for the reasons that follow, the Tribunal's conclusion in the section headed "Second Reasoning" - namely that the grant of the Temporary Safe Haven visa was invalid - was correct.
50 Section 195A (set out at [18] above) applies to a person who is in detention under s 189: s 195A(1). By s 195A(2), the Minister has the power to grant to a person to whom the section applies a visa of a particular class "[i]f the Minister thinks that it is in the public interest to do so". It has been held that s 195A "stands apart from the regime of tightly controlled official powers, duties and discretions relating to applications for and grants of visas": Plaintiff M79/2012 at [33] per French CJ, Crennan and Bell JJ. The only condition expressly stated for the exercise of the power is that the Minister considers that it is in the public interest to do so: Plaintiff S4/2014 at [36] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.
51 In the present case, the Minister's view that it was in the public interest to grant CBW20 a Temporary Safe Haven visa proceeded on the assumption that CBW20 was an unauthorised maritime arrival. While it is common ground that the assumption was erroneous, there is a dispute between the parties as to whether the error was factual or legal. In our view, the error is appropriately described as legal because the assumption was predicated on a view that the Western Lagoon at Ashmore Reef had been validly appointed a "proclaimed port" under s 5(5).
52 Further, in deciding to grant a Temporary Safe Haven visa to CBW20, the Minister may be taken to have proceeded on the (incorrect) basis that CBW20 was already subject to a bar on making an application for a visa, namely the bar in s 46A(1), and that the effect of a decision to grant him a Temporary Safe Haven visa would merely be to substitute one bar (that in s 91K) for another. However, the true position was that CBW20 was not an unauthorised maritime arrival and therefore was not subject to the bar in s 46A(1). This, too, involved legal error.
53 It is established that where the exercise of a statutory power is conditioned on the formation of a state of mind, the decision-maker may fall into jurisdictional error where the state of mind is formed on the basis of an error of law. In the context of powers requiring the formation of a state of mind of suspicion or satisfaction, in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 (Graham), Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ stated at [57]:
The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister's satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself" [fn: R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158].
(Emphasis added.)
54 In Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 (Wei), Gageler and Keane JJ stated at [33]:
The "satisfaction" required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law [fn: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654 [130]-[137], citing R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 and Buck v Bavone (1976) 135 CLR 110 at 118-119]. Equally, it is a state of mind which must be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power. …
(Emphasis added.)
55 The power in s 195A is conditioned on the Minister thinking that it is in the public interest to grant the visa. That is a state of mind analogous to the states of mind referred to in Graham and Wei. Thus it is an implied condition that the state of mind be formed on the basis of a correct understanding of the law.
56 Further, in relation to s 195A itself, in Plaintiff M61/2010E v Commonwealth (Offshore Processing Case) (2010) 243 CLR 319, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) stated at [78]:
The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as "conditioned on the observance of the principles of natural justice". Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.
(Footnote omitted; emphasis added.)
57 In the present case, the Minister's view that it was in the public interest to grant the Temporary Safe Haven visa proceeded on the basis of an incorrect understanding of the law (as described at [51]-[52] above). Those legal errors were fundamental to the Minister's decision. The October 2014 Submission was specifically directed to persons who were believed to be unauthorised maritime arrivals (albeit referred to as Illegal Maritime Arrivals or IMAs). The submission recommended that the Minister exercise the power in s 195A to grant them Temporary Safe Haven visas (and bridging visas) in a context where, it was assumed, they were not entitled to make a valid application for a visa while in detention (see paragraph 14 of the submission). In that (assumed) context, the combined effect of the grant of the Temporary Safe Haven visa and the bridging visa would be that the persons covered by the submission could be released from detention and access Medicare and financial support, while maintaining the (assumed) position that they were subject to a bar on making a valid application for a visa. It is evident, and was conceded by the Minister (T15), that the Minister would not have granted the Temporary Safe Haven visa had he not thought that CBW20 was an unauthorised maritime arrival. The assumption that CBW20 was an unauthorised maritime arrival underpinned the formation of the view regarding the public interest.
58 Further, as noted above, the Minister may be taken to have assumed that CBW20 was already subject to a bar on making a valid application for a visa (namely, the bar in s 46A) and that the effect of a decision to grant a Temporary Safe Haven visa would be to substitute one bar (that in s 91K) for another. However, in truth CBW20 was not subject to any bar, and the effect of the decision was to subject CBW20 to a bar when none previously applied to him.
59 Given the seriousness of the errors of law, and their close connection to the decision to grant the Temporary Safe Haven visa, the errors were jurisdictional. This is not to say that any error of law in relation to an administrative decision will necessarily be jurisdictional: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [80]-[81] per Gaudron J; Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [70] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ; see also Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [23] per Kiefel CJ, Gageler and Keane JJ. Whether or not that is the case will depend on matters including the construction of the relevant power and the circumstances of the exercise of the power. Here, the assumed status of CBW20 as an unauthorised maritime arrival, and the assumed consequences of that status, played an important role in the formation of the view that it was in the public interest to grant him a Temporary Safe Haven visa.
60 The present case is not aptly described as a case where the Minister received advice that was factually incorrect: cf the cases referred to in the Minister's submissions summarised at [48(c)] above. This is a case where, in forming the view that it was in the public interest to grant the visa, the Minister proceeded on the basis that CBW20 was an unauthorised maritime arrival, which involved legal error for the reasons set out above.
61 Accordingly, the Tribunal was correct to conclude (in the section headed "Second Reasoning") that the grant of the Temporary Safe Haven visa was invalid, and that CBW20's application for a SHEV was valid. In light of this conclusion, it is unnecessary to consider the Tribunal's "First Reasoning".
62 The Minister has not established jurisdictional error by the Tribunal.
63 In light of this, it is unnecessary to consider the Commission's contentions.