Pallas v Minister for Home Affairs

1. The appeal is dismissed.
2. The appellant is to pay the first respondent's costs of the appeal to be taxed or as agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 I have had the benefit of reading the reasons for judgment of Derrington J. I agree with the orders proposed by his Honour and I generally agree with his Honour's reasons explanatory of the making of those orders. 2 I simply wish to add these observations. The standard of appellate review to be discharged by the Full Court, in this case, in conducting an appeal by way of rehearing, within the limits of the grounds of appeal identified by the appellant, is the "correctness" standard discussed by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 ("SZVFW"). Thus, the question is whether the primary judge was correct or incorrect, within the limits of the contended grounds of error, in dismissing the application for supervisory review of the decision of the Assistant Minister within the principles defining the grant of the constitutional writs for the purposes of para 75(v) of the Constitution. 3 The decision of the Assistant Minister engaged the exercise of a statutory discretion under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (the "Act"). The Assistant Minister was required to take into account, in the exercise of the discretion, the matters put to him by the appellant in response to the invitation under s 501CA(3)(b) for the purposes of s 501CA(4)(a) of the Act. 4 Before the primary judge, the appellant challenged the exercise of the discretion on grounds of unreasonableness (grounds 3 and 4) and also on the footing that the Minister failed to provide the appellant with "procedural fairness and natural justice". There is no ground of contended error on the part of the primary judge in relation to the primary judge's rejection of the grounds of unreasonableness. 5 The only ground of challenge to the correctness of the primary judge's decision, by way of rehearing, is ground 2 of the grounds of appeal contained within the short phrase "Procedural fairness and natural justice". There are no particulars of that ground and no submissions have been put on by the appellant. 6 Submissions have been made, and received with leave, on behalf of the appellant, from a social worker who is assisting the appellant, Ms Marleen Charan. Those submissions are essentially directed to factors on the merits which are said to support a decision that ought to have been made by the Minister in the exercise of the discretion leading ultimately to a preferred decision of the revocation of the cancellation of the appellant's visa. 7 The appellant's ground of challenge to the correctness of the primary judge's decision on the basis of a failure to provide the appellant with procedural fairness and natural justice has two limbs to it. 8 The first is that the appellant was denied procedural fairness and natural justice by the primary judge in failing to adjourn the principal proceeding because the appellant was not represented by a lawyer: see T, p 8, lns 1-10. For the reasons identified by Derrington J, no error on the part of the primary judge is demonstrated in the exercise of the discretion not to adjourn the proceeding. In the primary judgment, her Honour identifies, in short form, the reasons for refusing the adjournment. 9 The second is that the appellant was denied procedural fairness and natural justice by the Assistant Minister in failing to explain, in the reasons for his decision, a process of reasoning which caused the Assistant Minister to decide that the best interests of the appellant's son, minor step-sons and grandchildren were outweighed by an unacceptable risk of harm to the Australian community represented by Mr Pallas's presence within the community should the cancellation decision be revoked. 10 That challenge requires the Full Court to decide for itself, on all the evidence before the primary judge, whether the primary judge was right or wrong in deciding whether the Assistant Minister has a statutory obligation to expose in the reasons a path of reasoning leading to the conclusion reflecting that balance and whether the reasons are required to expose the factors informing the balance struck in the exercise of the discretion: SZVFW, Gageler J at [56] 11 As a matter of statutory construction of s 501CA(3) and (4), the Assistant Minister is required to consider the representations made by Mr Pallas and to identify the factors leading to the conclusion that Mr Pallas represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs the best interests of his son, minor step-sons and grandchildren (and any other considerations described in the appellant's representations). The Assistant Minister identified those factors in a conclusionary way at paras 63 and 64 of the decision which are discussed more comprehensively throughout the reasons for the decision, in particular paras 37 to 47. To the extent that this second limb of the ground of appeal is the true focus of the appellant's concern as to the correctness of the primary judge's decision, I am satisfied that no error is made out. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.