Palmer v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia (Full Court)|2024-12-06|Before: Hespe JJ

ip and Multicultural Affairs v Lieu (2023) 297 FCR 162 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582 Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2014) 225 FCR 97 Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552 Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270 Vargas v Minister for Home Affairs (2021) 286 FCR 387 Williams v Minister for Justice and Customs of the Commonwealth of Australia (2007) 157 FCR 286 M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Law Book Co, 7th ed, 2022)

Solicitor for the Appellant: HIV/AIDS Legal Centre

Solicitor for the Respondent: Australian Government Solicitor

BETWEEN: CLAYTON JAMES PALMER Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent

order made by: DERRINGTON, FEUTRILL AND HESPE JJ DATE OF ORDER: 6 December 2024

THE COURT ORDERS THAT:

The appeal be dismissed.
The appellant pay the respondent's costs of the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DERRINGTON AND HESPE JJ:

Introduction

This appeal is from the decision of a judge of this Court made on 19 September 2023 to dismiss an application for judicial review of a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) made under s 501BA(2) of the Migration Act 1958 (Cth) (the Act) to set aside a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had reinstated the appellant's Class TY subclass 444 Special Category (Temporary) visa (the visa) by revoking the prior cancellation of her visa. The effect of the Minister's decision was that the visa would remain cancelled.
The appeal is centrally concerned with the construction of s 501BA(3) of the Act which provides that "[t]he rules of natural justice do not apply to a decision" under s 501BA(2) to set aside a decision of the Tribunal and cancel a visa of a person on national interest grounds. Despite the apparent clarity of s 501BA(3), the appellant claims that the Minister's decision was infected by jurisdictional error because he did not accord her natural justice in the process leading to the making of the decision. That result is sought to be achieved by construing the power in s 501BA(2) as being subject to the rules of natural justice once a Minister invites a party to make submissions in respect of the decision.
The substance of that primary ground of appeal is also sought to be re-characterised as constituting other jurisdictional errors.
For the reasons that follow, the appeal should be dismissed. The appellant's invitation for the Court to rewrite s 501BA(3) or to read it down should be rejected, as should her implicit invitation to resurrect "legitimate expectation" as a foundation of jurisdictional error.

Background

The appellant, Ms Clayton James Palmer, is a citizen of New Zealand who entered Australia in June 2001, and has been ordinarily resident here since July 2006.
On 19 March 2010, the Minister granted her the visa.
On 19 January 2018, Ms Palmer was convicted in the District Court of Western Australia for the offence of doing grievous bodily harm. She was charged with this offence as a result of engaging in sexual relations with an individual, in the course of her work as a sex worker, despite knowing that she had contracted HIV, where the individual subsequently contracted that disease. She was sentenced to six years imprisonment though, on 28 December 2018, the Court of Appeal of the Supreme Court of Western Australia reduced it to four years.
On 13 March 2019, the Minister's delegate mandatorily cancelled Ms Palmer's visa under s 501(3A) of the Act, on being satisfied that she did not pass the character test because she had a "substantial criminal record" under s 501(6)(a) of the Act. Her record was appropriately so characterised on the basis that she had been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act.
Ms Palmer then requested that the cancellation decision be revoked under s 501CA.
On 6 November 2019, the Minister's delegate decided not to revoke the cancellation decision. The delegate was neither satisfied that Ms Palmer passed the character test as required by s 501CA(4)(b)(i) of the Act, nor that there was any other reason as to why the cancellation decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.
On 14 November 2019, Ms Palmer applied for review of the non-revocation decision in the Tribunal.
On 30 January 2020, the Tribunal ordered that the non-revocation decision be set aside and be substituted with a decision that the cancellation of Ms Palmer's visa pursuant to s 501(3A) of the Act be revoked under s 501CA(4)(b)(ii) of the Act.
The foregoing circumstances enlivened the Minister's powers under s 501BA(2) of the Act.

The Minister's decision

It appears that, within the Department, the Minister had indicated his intention that, in exercising the power under s 501BA(2), he would afford Ms Palmer the opportunity to provide further materials and submissions in relation to the proposed exercise of power.
On 24 August 2020, the Department wrote to Ms Palmer and informed her that the Minister was intending to personally consider setting aside the Tribunal's decision and to cancel the visa pursuant to s 501BA(2) of the Act. The letter further informed her that, in making the decision, the Minister would have regard to material previously provided by her, including material relating to the delegate's decision under s 501CA. In accordance with the Minister's wishes, the letter invited her to make further submissions in relation to the issues under consideration. Accordingly, she was advised that any information or material that she wished the Minister to consider should be received within 28 days from the date she was taken to have received the letter.
The letter also advised her that she may wish to consider "Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA", being a direction issued under s 499 of the Act (Direction 79), which referred to issues which might be relevant to the Minister's decision.
On 6 November 2020, the Department again wrote to Ms Palmer and invited her to comment on further information which it had received, including information relating to HIV and AIDS, and further invited her to comment on or provide further information as to whether the Minister should exercise his power to set aside the Tribunal's decision. Again, a response was required within 28 days after Ms Palmer was taken to have received the letter.
On 3 December 2020, Ms Palmer provided to the Department a lengthy statutory declaration which addressed, inter alia, her recent offending, her participation in drug and alcohol courses, an incident in immigration detention, and her fears of returning to New Zealand.
On 11 January 2021, Ms Palmer's solicitors provided lengthy submissions which addressed the matters relevant to Direction 79. These included references to the material which had been before the Tribunal and to that which had been provided in the statutory declaration of 3 December 2020.
A further letter was sent by the Department to Ms Palmer on 1 February 2021 which again invited her to comment on further information which had been received and which may be the subject of consideration in the determination of whether her visa should be cancelled. In particular, the information received by the Department was that on 16 December 2020, Ms Palmer's parole had been suspended due to her use of illicit substances as a result of which she was returned to criminal detention.
A further letter of similar effect was sent to Ms Palmer on 21 April 2021, this time inviting her to comment on a Government of Western Australia Department of Justice "Adult Community Corrections" report dated 26 March 2021, which indicated that she had been returned to custody on two occasions as a result of breaching her parole conditions by the continued use of illicit substances. The Department's letter also enclosed the new "Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (Direction 90) (which replaced Direction 79) and which referred to and identified issues which might be relevant to the Minister's decision. The letter noted that any response from Ms Palmer should be received by the Department by no later than 28 days from the date the letter was taken to have been received.
In relation to the timing of the required response to the request for information, the Department's letter specifically provided: Response You are invited to comment on this information. … If you do not respond in the time specified below, a decision may then be made by the decision-maker based on the information the Department holds. If you wish to submit additional information, provided it is received before the decision is made on whether or not to revoke the original decision to cancel your visa, it will be taken into consideration by the decision-maker. Time for response Any response you make should be received by the Department no later than 28 days from the date you are taken to have received this letter. As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted. (Emphasis in original).
Though there is some possible inconsistency in the letter as to whether material will be taken into account by the Minister in making the decision, it was sufficiently clear that a warning was given that if it was not provided within 28 days it might not be considered.
On 19 May 2021, Ms Palmer provided a further statutory declaration which sought to explain her relapse into drug use and the false statement which she had made in her 3 December 2020 statutory declaration to the effect that she no longer had any substance misuse issues. The provision of this statement was in response to the Department's letters of 1 February 2021 and 21 April 2021. The email from Ms Palmer's solicitors attaching the statutory declaration indicated that: … While we are still in the process of gathering some documents, we hope to have these in no more than 2 weeks and are aiming to provide some brief submissions in response to your letters at that time.
It was not until 29 July 2021 that Ms Palmer's legal representatives provided further submissions to the Department. Those submissions asserted that she had taken active steps to address her use of illicit drugs, that she had secured employment with a cleaning company and that she did not pose a risk to the Australian community given her adherence to her HIV medication.
It was an admitted fact in the proceedings below that the Department had received the supplementary submissions in support of Ms Palmer's case provided on 21 July 2021, but that they were not brought to the Minister's personal attention before he made the decision.
It was also not doubted that the submissions sent on 29 July 2021 went to the issue under consideration, being whether it was in the national interest that Ms Palmer's visa be cancelled. They addressed questions of Ms Palmer's risk of reoffending and whether she was likely to continue to take her medication.
On 5 April 2022, the Minister made his decision, in which he set aside the Tribunal's decision and cancelled Ms Palmer's visa. He was satisfied that she did not pass the character test and that it was in the national interest for him to cancel the visa. In the statement of reasons accompanying his decision, the Minister noted that the rules of natural justice did not apply to his making the decision in question but he was not prohibited from affording an opportunity to be heard. He identified that Ms Palmer had been given that opportunity due to the passage of time since the original decision was made and the desirability of obtaining more up to date information about her personal circumstances. The Minister also noted that he had regard to Direction 90 and the matters contained in it, and that Ms Palmer had made representations on the basis of the Direction and its earlier iteration.
There is no need to detail the Minister's extensive reasons. They will be considered in detail as required.

The application for review

Ms Palmer subsequently applied to this Court for judicial review, in reliance upon a number of grounds. In general terms, it was alleged that by inviting Ms Palmer to comment on the information in the Minister's possession but then failing to consider all her responses, the Minister fell into jurisdictional error in that he denied her procedural fairness, exercised the power under s 501BA unreasonably, and failed to have regard to relevant materials or act on a correct understanding of the law. A further claim was made that the Minister's conclusion that there was "a low likelihood that Ms Palmer will reoffend" was illogical, irrational or unreasonable.
Each of the grounds relied upon by Ms Palmer were rejected by the learned primary judge who also gave extensive reasons for her conclusions. Again, there is no need to recite her Honour's reasoning at this point.

The present appeal

By her notice of appeal dated 17 October 2023, Ms Palmer now seeks to appeal from the decision of the learned primary judge. Although the notice of appeal contains two grounds, the second ground was not supported by any written submissions, and it can be assumed not to be further advanced.
The first ground advanced was that, in circumstances where the Minister had invited Ms Palmer to provide information as to why the Tribunal's decision should not be set aside and told her that any information she provided will be considered, the Minister fell into jurisdictional error because:
he denied Ms Palmer natural justice;
the decision was legally unreasonable;
he failed to have regard to relevant material; and
he acted on a misunderstanding of the law or did not proceed by correct legal principles.
It is alleged that the learned primary judge erred in failing to detect and correct those errors. Each of the alleged errors are addressed in turn below. The essence of the appeal is that invalidity arose in the Minister's decision as a consequence of him extending to her the opportunity to provide information and material, but then not considering everything which was sent to the Department on her behalf.

Statutory scheme

By s 501(3A)(a)(i) of the Act, the Minister must cancel a visa granted to a person if that person does not pass the character test on the basis that they have a substantial criminal record. The expression "substantial criminal record" is prescribed by s 501(6)(a) and includes where a person has been sentenced to a term of imprisonment of 12 months or more.
The relevant parts of s 501 are as follows: 501 Refusal or cancellation of visa on character grounds … (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); … Character test (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 … Substantial criminal record (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 …
When a person's visa is mandatorily cancelled, the cancellation may be revoked if the criteria in s 501CA are satisfied. At all relevant times, that section provided: 501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. (5) If the Minister revokes the original decision, the original decision is taken not to have been made. (6) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. (7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (4) to not revoke, see section 501G.
By s 500, applications may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
By s 501BA, the Minister has power to set aside a decision by a Tribunal or delegate that revokes the mandatory cancellation of a person's visa. It provided, at all relevant times: 501BA Cancellation of visa - setting aside and substitution of non-adverse decision under section 501CA (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person. Action by Minister - natural justice does not apply (2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or (ii) paragraph 501(6)(e); and (b) the Minister is satisfied that the cancellation is in the national interest. (3) The rules of natural justice do not apply to a decision under subsection (2). Minister's exercise of power (4) The power under subsection (2) may only be exercised by the Minister personally. Decision not reviewable under Part 5 or 7 (5) A decision under subsection (2) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (2), see section 501G.
There is no statutory definition of the expression "the rules of natural justice" in the Act, though the use of the expression "natural justice hearing rule" in other parts of the Act such as s 473DA (which was recently repealed but relevantly replicated in s 357A), indicates that it is intended to be wider than simply the audi alteram partem rule - that a person be entitled to a fair hearing before a decision affecting them is made. It may be that the expression is intended to cover both the hearing rule and the bias rule (nemo debet esss iudex in propria sua causa): see M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Law Book Co, 7th ed, 2022) 401 [8.20], but cf Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270, 275 [35] (Tereva). For present purposes, it is only the negation of the hearing rule, including the affording of procedural fairness, which is relevant.
It can be assumed that the negation of the rules of natural justice in relation to the exercise of power under s 501BA(2) has the result that a party affected by the Minister's decision is not entitled to notice of the exercise of power, to present evidence or submissions, or to be heard in relation to the matter.

Judicial observations on s 501BA

For the purposes of the following discussion, it is appropriate to keep in mind the following accepted propositions in relation to the uniqueness of the power in s 501BA(2).
For the purposes of s 501BA(2)(b), it is well accepted that the concept of the "national interest" is broad and evaluative: Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, 30 [57]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 390 [156] - [157] (Carrascalao): and, whilst the decisional freedom is not unbounded, the question is largely a political one: see Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, 46 [40]; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231, 242 [18].
The Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest: Vargas v Minister for Home Affairs (2021) 286 FCR 387, 403 [61] (Vargas); Gubbay v Minister for Home Affairs [2020] FCA 1417 [56]; Candemir v Minister for Home Affairs (2019) 268 FCR 1, 5 - 6 [20] - [21], 7 [24]: and it is therefore a matter for the Minister to determine: Carrascalao at 390 - 391 [158].

Was there a jurisdictional error based upon the alleged denial of natural justice?

The fulcrum of the appeal is whether the Minister's decision under s 501BA(2) was vitiated by reason of the failure to afford natural justice to Ms Palmer as a result of the invitations to her to provide material and the subsequent omission to have regard to the last provided piece of information.

A textual approach to the issue

A purely textual approach to the central issue of this appeal would necessitate the conclusion that the Minister's decision was not vitiated by the failure to afford Ms Palmer natural justice in the manner alleged. The decision in respect of which complaint is made was under s 501BA(2) and the decisional process was one undertaken for the purposes of making that decision. A complaint that some invalidation arises from the failure to afford natural justice to Ms Palmer in the process is inconsistent with the clear words of s 501BA(3) that the rules of natural justice do not apply to the exercise of power under s 501BA(2).
There are no words of ambiguity or equivocation in s 501BA(3) which might indicate that the exercise of power under s 501BA(2) is subject to the rules of natural justice on some occasions or under certain circumstances. There are also no words indicating that the Minister has some Executive legislative power to create a requirement, either intentionally or unintentionally, that the power granted under s 501BA(2) be subject to the affording of natural justice to the visa holder. Moreover, there is nothing in the words of s 501BA(3) which invite the application of some judicial exegesis so that the freedom accorded to the Minister should be overridden and the subsection reformulated such that only on some occasions the rules of natural justice do not apply.
Neither the Courts nor the Executive, through the Minister, have the capacity to re-write Parliament's words. That is ultimately what Ms Palmer asks the Court to do in this case.
There is no suggestion that the deliberate exclusion of the rules of natural justice to the making of a decision under s 501BA(2) is ambiguous or debateable. In Tereva, Mortimer J recognised (at [17]) that "there is no doubt that Parliament intended the power in s 501BA not to be conditioned with any obligation to afford a person an opportunity to be heard": see also NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582, 600 [82]. The legislature's ability to dispense with the obligation to accord natural justice is well established and clear words of necessary intendment appear in this case: see Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, 352 [74], quoting Annetts v McCann (1990) 170 CLR 596, 598.
Similarly, in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, 20 [26] (Ibrahim), s 501BA(3) was identified as "removing any obligation on the Minister to afford natural justice when exercising the power under s 501BA(2), but not as prohibiting the Minister from doing so."
No textual reason was offered as to why s 501BA(3) should be read down and not given its natural meaning. Therefore, on a purely textual approach, the short answer to the question on appeal is that a decision made by the Minister under s 501BA(2) is not vitiated if, in reaching that decision, the Minister fails to afford the visa holder some element of natural justice.

Does the context of s 501BA alter the scope of the limitation?

The context of s 501BA enforces, rather than diminishes, the conclusion that the removal of any obligation to satisfy any requirement of natural justice in its exercise is absolute.
Firstly, the possible exercise of s 501BA(2) is only ever reached following the completion of the process in s 501CA which will usually have involved the making of submissions by the visa holder as to the reasons why they should retain their visa and, in some cases, the process will also involve a hearing before the now Administrative Review Tribunal. If no submissions are made as to why the visa holder's visa should not be cancelled, it will only be a consequence of the visa holder not availing themselves of the opportunity to make them in response to the invitation issued under s 501CA(3)(b). In the ordinary course, for the purposes of making a decision under s 501BA(2), the Minister will have access to substantial information received from or provided by the visa holder in relation to their circumstances and, in particular, those circumstances identified in the relevant direction dealing with the cancellation of visas. This was very much in mind when s 501BA was included in the Act as appears from the terms of the Explanatory Memorandum to the Bill which resulted in the enactment of s 501BA: see Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) at p 15 [84].
A further contextual consideration is that s 501BA is concerned with the promotion of the national interest, being something which is well understood to be within the sole purview of the Executive. Occasionally, it may have to be exercised in exigent or urgent circumstances where the imposition of an obligation to afford a visa holder natural justice would necessarily impede its utility. Indeed, the purpose of the power might be significantly diminished if the Minister was able to bind himself or herself to a process which required some form of natural justice to be afforded to a visa holder prior to its exercise.
On the other hand, the particular aspect of the national interest which may arise in any case can be infinitely variable and the Minister may perceive it appropriate, desirable, beneficial or helpful to make inquiries of the visa holder. Such circumstances render it possible for the Minister, if so desired, to permit the visa holder to provide additional information in relation to a decision. Whether the Minister does so, and to what extent, is a matter which the legislature has left to the Minister's discretion. The way the Minister acquires information from the visa holder in relation to the making of a decision in the national interest and when or how, is solely a matter for the Minister. It would seem to follow that whether the Minister considers the information would also be a matter for them alone.
These contextual matters support according s 501BA(3) its natural meaning, rather than imposing some artificial constraint on its exercise.
In the course of the appeal, reference was made to the observations of Bromwich J in Tereva at 279 [40], where his Honour observed of the power in s 501BA(2) that: It might be thought that the unstated reason for granting such a power was to ensure that real matters of national concern could be addressed urgently and without fetter, and that otherwise the decisions of delegates, and the Tribunal decisions on merits review of delegates' decisions, would apply without being overridden if otherwise lawful. A reasonable expectation by ordinary decent people would be that such an important overriding power would be used by the Minister with self-imposed restraint, confined to circumstances that really called for it. That is not what has happened in this case.
Whilst his Honour correctly noted that some of the circumstances in which the power would be used might involve emergency and that would justify not according natural justice to the visa holder, there is nothing in s 501BA(2) which suggests that its use is limited to those circumstances. Matters of national interest may involve a consideration of information going to national security or the welfare of the nation which, by its nature, is necessarily highly confidential. To accord the visa holder natural justice in circumstances involving those matters is likely to be prejudicial to the very interests which the section is designed to protect. There is nothing in the text or the context of s 501BA which impliedly limits its use to those circumstances where the Minister has some subjective belief that the circumstances warrant its use without according natural justice of some description. There is no threshold which the circumstances must satisfy before the Minister is entitled to use the power according to the manner in which the legislature provided it. Whether the failure to hold such a subjective belief necessarily reveals personal moral obloquy is not relevant to the constructional issues.
In Tereva, Mortimer J separately observed (at 275 [14]) that the power in s 501BA is "draconian". Whilst it may be that some will describe the consequences of its use in some circumstances as being rigorous, harsh, severe, or cruel, it is also one which is to be used in the protection of the national interest, and then only by persons who are a Minister of the Crown. The protection of the national interest is peculiarly within the province of the Executive, and, in the ordinary course, the conduct taken by the Executive for that purpose is not justiciable in the Courts, and that is an important consideration when the Court is asked to find implicit limitations in powers designed for that purpose. As Mortimer J found (at 275 [27]), the words of s 501BA leave no doubt that the power is not conditioned on any obligation to afford a person an opportunity to be heard.
Ms Palmer submitted that a construction contrary to that propounded by her would lead to absurd results. She postulated circumstances where the visa holder is invited to provide information and informed that it will be considered and that important information which would be exculpatory is provided but the Minister then does not consider it. It was submitted that for the Court not to be able to intervene would result in a lack of supervision of the Executive.
That contention cannot be accepted. The legislature has created the legal context in which power under s 501BA(2) is to be exercised. It is to the effect that the rules of natural justice do not apply to a decision under it. Numerous examples could be imagined whereby seemingly anomalous results could arise. For instance, a Minister might invite the provision of materials or submissions and then be faced with repetitious delivery of new and additional information over an extended period of time with indications from the visa holder that they intend to file more material. It could not be said that the Minister was then bound, ever more, to receive any further information.
With deference to those who are of a different opinion, the words of s 501BA are clear. The Parliament has seen fit to impose only one relevant safeguard on its use and that is that the power be exercised personally by a Minister of the Crown. That legislative choice should be accepted.

Can the exercise of the power under s 501BA(2) become conditioned on an obligation to afford natural justice?

Despite the above, it was submitted that the power in s 501BA(2) can become conditioned upon an obligation to afford the visa holder natural justice, or some degree of it, though the precise mechanism by which the absolute unfettered power would be subject to such limitations was not made precisely clear. Importantly, it was made pellucid in the proceedings below and during the appeal that Ms Palmer was not relying upon any estoppel arising from the circumstances which bound the Minister to afford natural justice to her, if that were even possible.
In substance, the submission appeared to be that within s 501BA, the obligation to afford natural justice to a visa holder lay latent and subject to the Minister's choice not to give the visa holder any opportunity to be heard. However, once the Minister indicated a preparedness to give the visa holder some degree of natural justice, whether that be the right to make submissions or otherwise, the suppression of the obligation to afford natural justice was released. So, the submission went, the latent and newly operative obligation remained unless and until the Minister advised the visa holder that he intended to withdraw the affording of natural justice and the visa holder is given an opportunity to be heard in relation to the potential withdrawal. On this basis, it was submitted that, as that did not occur and the Minister did not address the submissions in the letter of 29 July 2021, there was an effective breach of the obligation to accord natural justice.

Is there a latent right to natural justice in s 501BA(2)?

In the light of the above textual and contextual considerations, it is unlikely that s 501BA(2) has the effect alleged by Ms Palmer. Her preferred construction would require reading s 501BA(3) as providing that the rules of natural justice do not apply to a decision under s 501BA(2) unless the Minister, by his conduct, has made them relevant, in which case he is obliged to comply with them. In this context it is to be remembered that she especially eschewed reliance on the existence of any estoppel.
A pivotal element of Ms Palmer's submission on this issue was derived from some obiter comments of Bromwich J in Tereva. In particular, his Honour's observations at 279 [39]: … By enacting s 501BA of the Migration Act 1958 (Cth), Parliament has chosen to give the Minister an extreme and largely unaccountable power to override decisions of both delegates and the Tribunal to revoke a visa cancellation on character grounds: see ss 501(3A) and 501CA(4). The bestowal of that power expressly excludes any obligation to afford the person affected natural justice, while leaving open an option to grant that otherwise fundamental right: Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at [23]. Relevantly, the pivotal and, as a practical matter largely unreviewable, basis for the exercise of that power is satisfaction that the visa cancellation is in the national interest, being an essentially political evaluation.
It was submitted that Bromwich J there suggested that, whilst the statute provides that the rules of natural justice do not apply to a decision under s 501BA(2), the legislative intent is that the freedom to make the decision without according natural justice is conditional and tempered by the Minister indicating a preparedness to receive and accept material from the visa holder. Once the Minister indicated that preparedness for the purposes of exercising the power under s 501BA(2), he had revived the "fundamental right" and became compelled to comply with the rules of natural justice which would ordinarily apply. Reference was made to the decision in Annetts v McCann at 598 in support of this proposition, though that decision expressly recognises the ability of the legislature to exclude the rules of natural justice, which, in this case, occurred by s 501BA(3).
Undergirding Ms Palmer's submissions was the proposition that s 501BA(3) created a secondary procedure within s 501BA, being one in which natural justice may be accorded to a visa holder. As mentioned, Ms Palmer seemed to rely upon the existence of some latent obligation which is suspended and remains so if the Minister does not indicate that the visa holder will be afforded some aspect of natural justice but, if he does, the power can only be validly exercised if the otherwise inherent right of natural justice is provided.
There is no foundation for such a construction. There is one power in s 501BA, being the Minister's power to make a determination whether to set aside a decision of a delegate or Tribunal and to cancel a visa in the specified circumstances. The rules of natural justice do not apply to the exercise of that power. If the Minister so chooses, he or she may utilise aspects of the rules of procedural fairness for the purposes of reaching a decision in the exercise of that power. In this case, that involved inviting Ms Palmer on several occasions to make submissions, and receiving and considering the material, or some of it, provided in response. That, however, is not some secondary or different procedure as Ms Palmer sought to submit on the appeal. It is merely one of the varieties of the procedure which the Minister might pursue in exercising the power under the section.
Nor is there any foundation for the suggestion that an obligation to accord a visa holder natural justice in relation to the exercise of power under s 501BA(2) lies dormant until animated by the Minister's conduct of seeking information from them or affording them some measure of natural justice. Both textual and contextual considerations are against any such conclusion.

Can the power to make a decision without affording natural justice be exhausted?

A slightly different submission was advanced based on the proposition that s 501BA(3) operates so as to give to the Minister an entitlement not to accord natural justice to a visa holder. On this thesis, if the Minister invites the making of submissions, his power to make a decision without affording natural justice is "spent" or "exhausted", and he is obliged to give the visa holder the natural justice which he indicated he would give.
That submission rests upon a faulty premise. Section 501BA(3) does not give the Minister an entitlement not to afford natural justice to a visa holder; it provides that the rules of natural justice do not apply to the making of the decision at all. That does not prevent the Minister from seeking information from the visa holder and having regard to that information to the extent to which he desires. It may be that the effect of doing so affords the visa holder the same benefit as if some measure of the rules of natural justice had been applied, but that is merely the consequence of the Minister's conduct. There is no valid method of construction which would have the result that s 501BA requires that the visa holder be afforded natural justice, subject to a conditional entitlement of the Minister not to afford it.
In this context, reference was made to the decision in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 (Plaintiff M76). It concerned a particular power under s 46A(2) of the Act which permitted the Minister to "lift the bar" generated by s 46A(1) of the Act. That subsection prevented a person from making an application for a visa if that person was an "offshore entry person" who was in Australia and became an unlawful non-citizen because of that entry. Specifically, s 46A(2) provided that, if the Minister thought that it was in the public interest to do so, the Minister could determine that s 46A(1) did not apply to a specific class of persons. Section 46A(7) provided that the Minister did not have a duty to consider whether to exercise the power under s 46A(2). The High Court held that the exercise of the power in s 46A(2) involved two distinct steps. The first was a decision to consider whether to exercise the power to lift the bar, and the second was a decision whether to lift the bar. It was held that when the Minister had determined to consider making a determination under s 46A(2) of the Act, he was required to conclude that consideration.
Before this Court, it was submitted that the entitlement of the Minister to afford a visa holder natural justice under s 501BA was similar to the power in s 46A such that the Minister, having exercised it, was required to follow through and accord natural justice or withdraw the entitlement to natural justice but only after giving the visa holder an opportunity to be heard on the issue of whether the right to natural justice should be withdrawn.
However, provisions in the nature of s 46A(2) - being ones which provide an express power to engage in specific conduct - are quite different from the ability of the Minister in the present case to depart from s 501BA(3) by granting an indulgence, lenience, favour or courtesy to a visa holder. The Minister's ability to acquire further information from whatever source, including from the visa holder, has no equivalence to the exercise of an express statutory discretion which, having been exercised, cannot be retracted or treated as not having occurred. Section 501BA(3) does not confer a statutory discretion: Ibrahim at 20 [26].
Further, there is nothing in s 501BA(2) or (3) which suggests that the Minister is required to embark upon a two stage process in the course of decision making. The legislative regime imposes no requirement on the Minister to even consider according natural justice when exercising the power. The Ministerial power is exercisable without according natural justice, though if the Minister so chooses, he or she may accord a measure of it to the visa holder. Whether that occurs and to what degree is entirely for the Minister. As was said in Ibrahim, the effect of the section is entirely facilitative to the Ministerial decision-making process.
Reference was also made to the reasons of Gordon J in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 408 ALR 381 (Davis). That case concerned the power of the Minister under s 351(1) of the Act to substitute a decision for a decision of the Tribunal under s 349 of the Act if he or she thinks that it is in the public interest to do so, and the decision made would be more favourable to the applicant. Section 351(7) of the Act expressly provided that the Minister did not have a duty to consider whether to exercise the power, regardless of whether he or she was requested to do so. In the circumstances of that case, the Minister had issued instructions to the Department to the effect that requests under s 351 were only to be referred to him if assessed by officers of the Department as having "unique or exceptional circumstances". The appellants had made requests to the Minister, and each was declined by the relevant officers of the Department. The appellants sought judicial review of the decisions. The High Court concluded that, as a matter of statutory construction, the exercise of power in s 351 cannot be compelled or delegated. When it is exercised, it occurs by the Minister making two distinct sequential decisions. The first, being a procedural one, is to decide whether or not to consider the question of whether it is in the public interest to substitute a more favourable decision to that made by the Tribunal. The second is a substantive decision, being either to think that it is in the public interest to substitute a more favourable decision and to so do, or not to so think and not to do so. Those powers are exclusively vested in the Minister who is to exercise them. It was held that the Minister's direction that applications which did not have unique or exceptional circumstances were to be finalised without reference to the Minister, exceeded the statutory power. In other words, it was only the Minister who might make a determination of whether or not to consider exercising the power in relation to any particular application, and no other person could entertain that question.
The statutory provisions in that case are far from those in the present. The Court there was only concerned with conduct by the Executive which prevented the requests for the consideration of the exercise of power reaching the Minister. That was found to be a delegation of the exercise of the power to unauthorised persons. In this case, no such considerations arise.
Ms Palmer also relied upon some obiter observations of Gordon J in Davis at 407 [98], where her Honour observed: [98] Section 351 is a conferral of statutory executive power on the Minister. The Minister does not have a duty to consider whether to exercise the power under s 351(1) in any circumstances. This means the Minister cannot be compelled to consider whether to exercise the power. It must be recognised, however, that a Minister might put themselves in a position where they are committed to following a certain process and may become obliged to consider exercising the power. (Footnotes omitted).
Her Honour's comments were made in relation to s 351 of the Act and its operative effect in the context of the Act. However, s 501BA as affected by s 501BA(3) has an entirely different operation. It is not one in which the Minister, who has once embarked upon the according of natural justice to some degree, is thereby bound to proceed along those lines.
There is, with respect, nothing in either Plaintiff M76 or Davis which supports the conclusion that, in the exercise of the power under s 501BA(2), the Minister can come under an obligation to accord natural justice to a visa holder.
A similar consideration was addressed in Ibrahim where the Full Court considered the effect of s 501BA(3) on the exercise of the power under s 501BA(2) and, in particular, whether the former conferred on the Minister a discretion to accord natural justice as was the case in Plaintiff M76. That was rejected by the Full Court, which said the following at 20 [26]: We are inclined to think that the appellant's characterisation is inappropriate, as it tends to equate the power with an express statutory discretion. Instead, it is simply an incident of the power vested in the Minister by s 501BA(2). That being so, it is not "extra-statutory". Section 501BA(3) is to be understood as removing any obligation on the Minister to afford natural justice when exercising the power under s 501BA(2), but not as prohibiting the Minister from doing so. It is for the Minister to decide, within the limits of the Act, how he or she will go about making the decision contemplated by s 501BA(2). Just as the Assistant Minister had had the power to seek more information from the Department before making his decision, so also did he have the power to seek information from the appellant.
The consequence of that conclusion is that the power under s 501BA(2) does not have the same stepped characteristics of s 46A(2) as was considered in Plaintiff M76. It did not create a process which, once embarked upon by the Minister considering to exercise the power, bound him to continue doing so. On the contrary, as the Full Court said, the power is facilitative, such that a determination to exercise it is not binding or irrevocable in any way.
To similar effect are the observations of the Full Court in Vargas. In that case, the Minister had determined not to accord the visa holder natural justice when exercising the power under s 501BA(2) and the question arose as to whether that "decision" was a migration decision under s 476A(1) of the Act which the Federal Court had power to review. It was held that it was a decision that could be so characterised because of the expansive meaning given to "decision" by s 474(3). The Minister's choice not to afford natural justice was therefore capable of review with the result being that the Court was entitled to address the reasonableness of the choice not to afford natural justice to a visa holder. However, the following was further held at 397 [32]: The only "decision" to be made by the Minister under s 501BA(2) is whether to cancel a visa that has been granted to a person, if the Minister is satisfied that the cancellation is in the national interest (emphasis added). There is no anterior decision to be made about whether the Minister is or is not satisfied that natural justice should be afforded. Section 501BA(3) states unequivocally that natural justice does not apply to a decision made under subsection (2) (emphasis added). (Emphasis in original).
There, the Court accepted the observations in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 (Chamoun) that the power in s 501BA includes, as an incident, a facilitative power to seek or request further information in order to assist the Minister in reaching the correct or preferable decision by ensuring that she or he has sufficient information to make the necessary findings.
Neither of the above characterisations of the power in s 501BA(2) can be described as wrong, let alone plainly wrong. The Court was not asked to depart from them. Indeed, they are plainly correct. Each decision characterises the power in s 501BA(2) in a manner which is substantially different from the power in s 46A(2) as discussed in Plaintiff M76. The power to afford a visa holder natural justice is not one which the Minister is required to consider using and nor is it one that, if the Minister does consider using it, she or he is prevented from resiling from that position. The mere fact that the Minister grants to the visa holder some opportunities which align with certain elements of natural justice does not affect an alteration to s 501BA(3), which remains operative and intact. There is no authority which suggests otherwise, and it would be surprising were there to be any.
The submissions in this regard were sought to be bolstered by suggesting that the wording of s 501BA was not appropriate to immunise a decision under s 501BA(2) from a breach of natural justice. It was submitted that if that were intended, the legislature could have enacted a provision to the effect that, "a failure to comply with the rules of natural justice does not affect the validity of a decision under subsection (2)", and that would have been effective in this case where the Minister's conduct caused the rules of natural justice to apply, but he failed to fulfil the relevant obligations. That submission, however, misunderstands the effect of s 501BA(3). No provision of the type suggested is required where the rules of natural justice do not apply in any event, including in circumstances where the Minister may invite the visa holder to make submissions.
Ms Palmer further submitted that the binding effect of a Minister agreeing to afford a party natural justice, or some aspects of it, arose from the decision in NRFX at 600 [82], where the following was said: … Here, s 501BA(3) negated any obligation, which might otherwise have existed within that corpus of rules, to afford Child P an opportunity to be heard in relation to the decision under s 501BA(2).
So the submission went, the obligation which was otherwise to be found was the latent right to natural justice which existed in s 501BA(2). On that basis, if the entitlement not to apply the rules of natural justice as provided for by s 501BA(3) is not followed, s 501BA(2) will require that they do apply, even if the extent to which they do is uncertain. On this basis, once the Minister decided to apply the rules of natural justice in some way, not only would the Minister be required to invite the visa holder to make submissions and to consider them, but he may also be required to afford them a hearing in relation to the exercise of power.
There are a number of difficulties with this submission. Most importantly, it misconstrues that which was said in NRFX. The rules which otherwise might have existed, as is referred to in the above passage, are those which the Minister would be required to follow in the absence of s 501BA(3). It is not possible to make some assumption that they otherwise do exist, but that their operation is somehow suspended by reason of s 501BA(3). That subsection is an essential element of the section overall and there is no justification for attempting to construe the section on the assumption that s 501BA(3) is removed.
Ms Palmer also relied upon the Explanatory Memorandum to the Bill that first led to the enactment of identical provisions in the Act to suggest that Parliament's concern was to ensure that the Minister is not required in every case to seek and consider representations made by every person potentially affected by the exercise of power: see Explanatory Memorandum, Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 (Cth). It was suggested that leads to the conclusion that s 501BA(3) does nothing more than relieve the Minister from an obligation to afford procedural fairness in the first place, but that once they offer some natural justice entitlement, they are obliged to accord every element of it to the visa holder. Such a construction does not arise on the words actually used in s 501BA(3) and there was nothing in the Explanatory Memorandum which supported such a construction.

An absence of estoppel

There was an implicit concession in Ms Palmer's submissions that it was not possible in the present case to raise an estoppel against the Minister in relation to the power under consideration. As was said in Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552, 565 - 566 [47] (Singh): The second assumption underlying the third argument put on behalf of the appellants is that the officers of the Department (or the Tribunal) might be taken by Mr Young to have power to alter the timeframe for objection laid down by the legislature. That assumption is contrary to the fundamental principle of the separation of powers: that officers of the executive government have no power to alter the state of affairs ordained by the legislature. It is this principle that underlies the proposition that there can be no estoppel against a statute: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 17; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105. … See also Federal Commissioner of Taxation v Wade (1951) 84 CLR 105, 116.
Later in the same paragraph, the Full Court in Singh observed: … To countenance the creation of a substantive right, contrary to express statutory provision, on the basis of a representation made by an officer of the Executive would be a considerable retrograde step in terms of principle and all the more so in under a constitution which expressly provides for a separation of powers. It must be recalled that Art 1 of the Bill of Rights 1688 (Eng) provides, "That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal".
Similar considerations apply in this case, more so because the nature of the power in question and, in particular, the Minister's ability to afford the visa holder some measure of natural justice, is not itself in the nature of an anterior discretionary "decision": Ibrahim at 20 [25] - [26]; Vargas at 397 [32]: being something from which the possibility of an estoppel of some description might arise. As mentioned above, in Ibrahim (at 20 [26]), the Full Court eschewed the suggestion that there existed some separate statutory discretion and that the ability of the Minister to seek further information was merely an incident of the power in s 501BA(2).
It is to be remembered that the power to obtain further information in relation to a matter is merely the power to "seek or request, further information" before making a decision: Chamoun at 96 [79]. The information can be derived from any of several sources including by giving the visa holder an opportunity to provide information or submissions about any particular issue or issues. As Mortimer and Bromwich JJ said (at 96 [79]) in that case: … The information may be sought from the visa holder. It may be sought from a third party or from the Department (for example, country information). It is a facilitative power to assist the Minister in reaching the correct or preferable decision and to assist the Minister to ensure she or he has sufficient probative material to support the findings and conclusions she or he may be inclined to make.
There is nothing especially unique about the power to obtain additional information for the purposes of making a decision under s 501BA(2). As their Honours alluded to, the source of the information is not confined. In a context where the Minister has no obligation to afford the visa holder natural justice, it would not matter whether information on a particular topic was sought from the Department or the visa holder. There is no reason why, if the information was sought from the Department there would be no obligation to afford natural justice but, if the same was sought from the visa holder, some additional obligation would arise. That, however, is the incoherent operation which the section would have if the construction proffered by Ms Palmer were accepted.
All of this underscores the conclusion that no estoppel could arise from an intimation by a Minister that he would afford a visa holder natural justice.

No jurisdictional error by not affording the full scope of natural justice rights

When the question which arises is whether a decision has been vitiated by reason of jurisdictional error, the Court's task is to ascertain the legal limits of the power and whether they have been exceeded. In doing so, the observations of the High Court in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, 521 [30], should be kept in mind: The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation. (Footnotes omitted).
In this case, the invitation of the Minister to Ms Palmer to make submissions in relation to the exercise of power under s 501BA(2) and the subsequent failure to give full effect to that invitation by considering all of the submissions filed could, at most, constitute procedural unfairness in the exercise of power under s 501BA(2). Even if that is assumed to be the case, the consequence of s 501BA(3) is that the omission to accord procedural fairness does not vitiate the exercise of power.
In the result, there was no error by the primary judge in concluding that no jurisdictional error arose by reason of the Minister not affording Ms Palmer natural justice in the making of the decision under s 501BA.

Was the decision legally unreasonable?

Ms Palmer also sought to frame the failure to afford her natural justice as constituting legal unreasonableness. It can be accepted that unreasonableness "is not confined to why a statutory decision is made; it extends to how a decision is made": Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 371 [91] (Li). In addition to there being an "intelligible justification" for the decision, the decision-maker must ensure that their decision is made "through an intelligible decision-making process": see ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439, 451 [20], citing Li at 375 [105]. It follows that the question which requires consideration is whether the power was exercised in a manner that was not reasonable in accordance with the implied legislative intention: Li at 351 [29], 362 [63], 370 - 371 [88] - [92].
The gravamen of the unreasonableness case was that the power in s 501BA(2) was exercised unreasonably where the Minister had represented to Ms Palmer that she should have the opportunity to provide material as to why her visa should not be cancelled and that he would consider any material so provided, and then failing to follow that course. That same submission was rejected by the learned primary judge.
Even if the alleged unreasonableness occurred in the manner in which the power under s 501BA(2) was exercised, being a later decision by the Minister to change course and reverse his decision to receive and consider additional material, her Honour was of the opinion (at [92]) that there was insufficient evidence on which the Court could be satisfied that such a decision had been made. On the contrary, the Minister considered substantial material received by the Department in response to the request for additional material and, to the extent to which some was not considered, it was the result of an oversight by the Department rather than any conscious decision by the Minister.
Her Honour also concluded (at [93]) that there was nothing to suggest that the Minister failed to appreciate his obligation at law in relation to the manner in which he was to respond to the material which was received consequent upon his invitations. Nor was there any sustainable argument, in the absence of any pleaded ground, that the Minister's reasons failed to disclose an evident or intelligible justification for his purported failure to consider the material.
On this issue her Honour further held (at [95]) that, even if Ms Palmer was able to establish that the Minister changed course in relation to the affording of natural justice, the present case was not similar to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam) and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (WZARH), neither of which considered a change of course where the rules of natural justice do not apply. Her Honour was of the view that the issue was a factually intensive one and that consideration must be given to the express statutory preclusion of the rules of natural justice. In that latter respect, her Honour held that s 501BA(3) was not exhausted upon the Minister inviting the visa holder to make submissions or otherwise be afforded some degree of natural justice.
The learned primary judge also concluded (at [99]) that as there was no unreasonableness identified in the Minister's reasons, the only basis on which unreasonableness might be advanced is one based on the outcome of the decision. However, there was nothing which suggested that the outcome was beyond the bounds of reasonableness.
Before this Court, Ms Palmer maintained that the unreasonableness stemmed from the Minister's failure to make the decision under s 501BA(2) in the manner which she was led to believe that he would. Specifically, reliance was placed upon the statement by the Minister in his reasons for decision on 5 April 2022, that:
In this case, Ms PALMER has been given an opportunity to be heard. This was primarily because of the passage of time since the original decision was made and the desirability of obtaining more up-to-date information about Ms PALMER's personal circumstances.
It was submitted that the Minister had provided the invitation to Ms Palmer because he wished to make his decision on the most up-to-date information available and that which was the most up-to-date was that which had been provided in July 2021, which had not been considered. The consequence of this was said to be that the Minister had sought to rely upon more recent material because of the passage of time since the original decision, but had failed to do so.
This submission overstates the approach adopted by the Minister which was merely to obtain more up-to-date information about her circumstances. As the facts referred to above reveal, the Department wrote to Ms Palmer and her solicitors on multiple occasions for the purposes of obtaining further information about her circumstances. In response to some of those requests further information was sent to the Department for use by the Minister in making a decision. Material was sent on 3 December 2020, 11 January 2021, and 19 May 2021, all of which was considered by the Minister. It was only the submissions sent on 29 July 2021, being well after Ms Palmer's solicitors had indicated that they would be sent, which were not addressed. In these circumstances, the Minister's observation that Ms Palmer was given an opportunity to be heard was correct, as was the observation that the decision was made on more up-to-date material.
Ms Palmer's real concern was that the Minister did not consider all that was sent to the Department, such that she was not afforded the full entitlement to natural justice. So much appears from her reliance on the decision in the Full Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 448 [50], where it was held that "an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process."
As the primary judge found, the decision in WZARH provides little comfort for Ms Palmer in the present circumstances. It concerned a determination of whether a person was owed protection obligations under the Convention relating to the Status of Refugees (1951), as amended by the Protocol relating to the Status of Refugees (1967), which unquestionably required that the applicant be afforded natural justice in the process. The applicant was informed that a particular process involving rehearing would be undertaken by a particular reviewer, however a different reviewer assumed responsibility for the determination and adopted a different process which did not include a rehearing. Though the applicant was notified of the changed process, they were not given a further opportunity to supplement the written submissions previously made or to request supplementation of the record by giving further evidence. Though the High Court rejected any revival of the concept of "legitimate expectation", it was concluded that the applicant was denied procedural fairness. The plurality held (at 335 [30]) that: … reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.
Their Honours (at 337 [35]) referenced the decision in Lam (at 9 [25], 12 [33] and 34 [104] - [105]), as follows: In Lam, it was held that a failure by the decision-making authority to adhere to a foreshadowed line of inquiry may, but will not necessarily, amount to a denial of procedural fairness. The manner in which any given administrative process is conducted may generate expectations on the part of the person affected as to how he or she should present his or her case; in some cases, fairness may require that such expectations be honoured. In this regard, Gleeson CJ said: "'when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise … Expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case.'" … (Footnote omitted and emphasis in original).
Similarly, in Lam, the Minister was obliged to afford the applicant natural justice in the making of the decision. There the Minister advised the applicant that he would seek information from the applicant's children about the issues relevant to the cancellation of a visa, but failed to do so. In the particular circumstances of that case, it was held that no procedural unfairness had occurred as the applicant was not deprived of the opportunity to put forward additional material upon which he would otherwise have relied.
The concept of legal unreasonableness in the exercise of power involves giving effect to the legislative intention. A power is to be exercised reasonably and in accordance with the legislative intention with which it is bestowed on the repository of power, which intention is to be discerned from the context of the power: see DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177, 209 [68].
Here, natural justice did not apply to the Minister's decision under s 501BA. As has been identified above, the absence of any obligation remained despite the Minister's conduct in inviting the submission of further material but failing to take all of it into account. Neither the Act nor the circumstances required the Minister to consider the additional submissions. In this context, the consequence of Ms Palmer's submissions is that, whilst she has no entitlement to be afforded natural justice, such rights must be given to her lest the decision made be unreasonable. That, with respect, is seeking to bring in, by the back door, that which is not admissible through the front.
In relation to a submission similar to that which is now advanced, Flick J in CRW16 v Minister for Immigration and Border Protection [2018] FCA 710 [42] held: Both the content of the rules of procedural fairness and the principle of "unreasonableness" must necessarily be constrained by the statutory context. Although unnecessary to resolve the argument, it is difficult to see how "unreasonableness" could so operate as to confer a procedural entitlement upon a claimant which is otherwise excluded, expressly or impliedly, by the terms of Pt 7AA. Not only would such a conclusion potentially run contrary to the scheme set forth in Pt 7AA; it would also potentially prejudice the intended legislative intent behind s 473DA(1). Such a construction would only henceforth invite grounds of review being reformulated to characterise an alleged procedural deficiency as being "unreasonable" rather than a denial of "natural justice". On such an approach, a draftsman could avoid the constraints imposed by s 473DA by re-characterising a ground of review as "unreasonableness" rather than a requirement of "natural justice". (Emphasis in original).
That passage was adopted with apparent approval by Jagot J in EVW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1363 [19].
A not dissimilar scenario arose in EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 492 (EUF20) where, in relation to the exercise of power under s 501(3) of the Act, the Minister did not consider unsolicited material which had been sent to him on behalf of the appellant whose visa had been cancelled. It was held that the Minister was not required to consider the appellant's material as there was no obligation to afford the appellant natural justice. In relation to a submission that the Minister's decision was unreasonable by reason of the Minister's failure to consider it, the Court held at 510 [67]: The Minister aptly describes the appellant's submission as "an attempt indirectly to impose the requirements of natural justice in the face of a clear legislative intention in s 501(5) that exclude such requirements": see for example, Vargas v Minister for Home Affairs [2021] FCA 276 at [33] (appeal dismissed: Vargas v Minister for Home Affairs (2021) 286 FCR 387).
The same applies to the submission made in this case.
As explained above, the only decision made under s 501BA is whether to cancel a visa: Vargas at 397 [32]. The applicant must show legal unreasonableness in conduct that is an incident of the making of that decision: Vargas at 398 [35]: in a legislative context that provides that the rules of natural justice do not apply to the making of that decision. Even if the failure to consider the further submissions could be said to amount to an error in the process of the exercise of power, it is difficult to see how the unintended overlooking of them could amount to legal unreasonableness. In Minister for Immigration, Citizenship and Multicultural Affairs v Lieu (2023) 297 FCR 162, 177 [81], Mortimer CJ identified the nature of an error which can constitute legal reasonableness as follows: 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.
The error relied upon by Ms Palmer does not meet any of these requirements, or have any of these characteristics. There is nothing which reaches the conclusion that the power entirely miscarried. If it did, it would have the consequence that any unwitting procedural misstep would, without more, constitute unreasonableness, even though that would not correspond to the nature of such an error as Mortimer CJ described.
Indeed, if the circumstances of this matter are considered more deeply, it can be seen that great care was given to obtaining information from Ms Palmer prior to the decision being made. Attempts were made to contact her on a number of occasions, some of which went unanswered, but subsequently substantive material was received and nearly all of it was considered. That which was not considered was sent well after the time frame which Ms Palmer's solicitors had identified. Nothing in the conduct of the Minister or the Department approaches anything near to being unreasonable or capricious.

Did the Minister fail to consider relevant material?

Ms Palmer also framed her case on the basis that the overlooking of the material amounted to a failure to consider relevant information. However, that characterisation of the error is also founded upon a denial of the nature of the power in s 501BA(2). The absence of any obligation to accord natural justice to the visa holder has the consequence that the only material which might be sent to the Minister by the visa holder which is legally relevant to the Minister's decision is that which he or she chooses to consider. No error can arise from the Minister ignoring any material received in the absence of any obligation to consider it. As was observed in EUF20 in relation to a relevantly indistinguishable power, being s 501(3) of the Act, there is no free-standing obligation to have regard to new information received by the Minister even if it was possibly relevant. Indeed, given the exceptional nature of the power in s 501BA(2): DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 641 - 642 [13]: and the relative decisional freedom of the Minister as to what might be considered in determining what is in the national interest: Vargas at 403 [61]: any failure of the Minister to consider material which was presumptively relevant to the decision cannot, without more, go to jurisdiction: Vargas at 403 [62].
There is no substance in the submission that the Minister failed to take into account relevant material. This submission was, in any event, merely the re-characterisation of the failure to accord natural justice.

Was there a misunderstanding of the law?

This ground of the appeal is also an attempted recasting of the alleged failure to afford natural justice. As best as it can be understood, the submission sought to be made was that the Minister misunderstood that affording Ms Palmer the opportunity to be heard required that he also consider the material which was provided in response to his invitation. However, there is nothing in the Minister's reasons which suggest that the Minister formed that view. Rather, here, the finding by the primary judge was that the further submissions were not brought to the Minister's attention, and there was no attempt to cavil with that finding.
It follows that there is no foundation for the submission that the Minister misunderstood the law in relation to procedural fairness.
In any event, the assertion that the Minister is required to consider the submissions is wrong. He was not required to afford Ms Palmer natural justice by reading anything she provided to him, whether it was invited or not.

Attempt to tender new evidence on appeal

Ms Palmer sought leave to tender new evidence on the appeal which consisted of an initial departmental submission that was received by the Minister in respect of the possible exercise of power under s 501BA of the Act. It was unclear why that evidence was sought to be tendered. The Court was informed that it evidenced the Minister's determination to afford natural justice to Ms Palmer, however, as that was not in issue, no foundation existed for accepting it. After some brief submissions the Court received the additional material and reserved the question of its admissibility.
Ultimately, the point sought to be derived from the departmental submission concerned the scope of the Minister's agreement in relation to the according of natural justice. It was submitted that the Minister did not merely agree to offer Ms Palmer an opportunity to be heard by receiving written submissions, but that he agreed to "afford Natural Justice" to her. It seems that the point to be made was that, if Ms Palmer's submissions are correct, the Minister would be obliged to give to her the full panoply of rights which are the constituent elements of natural justice. However, that too did not seem to impact the issues in respect of which the parties were in dispute.
In circumstances where it has not been shown that the material was relevant to any issue on appeal and nor was its absence before the trial judge sufficiently explained, leave to adduce the further material on appeal should be refused.
It should be added that the reception of the material on appeal would have made no difference to the outcome.

Conclusion

In the result, all of Ms Palmer's grounds fail and the appeal should be dismissed.
There is no reason why Ms Palmer should not pay the Minister's costs of the appeal, to be taxed if not agreed. I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Derrington and Hespe.

Associate: Dated: 6 December 2024 REASONS FOR JUDGMENT FEUTRILL J:

I have had the advantage of reading the reasons of Derrington and Hespe JJ in draft. I agree, largely for the reasons they have given, that the appeal must be dismissed with costs. I write separately to address two aspects of the appellant's grounds of appeal and to explain my reasons for rejecting the appellant's contentions and submissions on these matters.
First, with respect to ground 1(a) of the notice of appeal (procedural fairness), in my view, s 501BA has the stepped characteristic of s 46A and s 195A of the Migration Act 1958 (Cth) considered in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 and Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319. Further, s 501BA has other features in common with those provisions and with ss 48B, 195A, 351 and 417 (dispensing provisions) considered in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 and Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 408 ALR 381. However, for the reasons which follow, the common characteristic and features of these provisions do not support construing the power in s 501BA(2) of the Act as conditioned by a requirement to observe procedural fairness based on steps taken by the Department or the Minister that are antecedent to the exercise of that power. Otherwise, I agree with the reasons of Derrington and Hespe JJ that ground 1(a) of the notice of appeal must fail.
Second, with respect to ground 1(b) of the notice of appeal (legal unreasonableness), amongst other things, the appellant relies on the judgment of Charlesworth J in LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 in support of a contention that a failure to take into account up to date information in the Minister's actual or constructive possession on a topic that the Minister has identified as relevant to the national interest criterion in s 501BA(2)(b) may be legally unreasonable. Further, that the Minister's failure to take into account up to date information that the appellant had provided in response to the Department's invitations was arbitrary and legally unreasonable. In my view, the legal principle upon which the appellant relies is sound, but she has failed to demonstrate that the Minister's failure to take into account the information in this case meets the high threshold for legal unreasonableness. Otherwise, I agree with the reasons of Derrington and Hespe JJ that ground 1(b) of the notice of appeal must fail.
I agree with the reasons of Derrington and Hespe JJ that grounds 1(c) and 1(d) must fail and that ground 2, in effect, was not pursued and must also fail.

Section 501BA

At the relevant time, section 501BA of the Act provided: (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person. Action by Minister - natural justice does not apply (2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or (ii) paragraph 501(6)(e); and (b) the Minister is satisfied that the cancellation is in the national interest. (3) The rules of natural justice do not apply to a decision under subsection (2). Minister's exercise of power (4) The power under subsection (2) may only be exercised by the Minister personally. Decision not reviewable by application under Part 5 or 7 (5) A decision under subsection (2) is not reviewable by application under Part 5 or 7. Note: For notification of decisions under subsection (2), see section 501G.

Background and relevant facts

The background and relevant facts are set out in the reasons of Derrington and Hespe JJ and need not be repeated except as is necessary to explain my reasons. I gratefully adopt all those matters. Regarding the appellant's submission of 29 July 2021, the following matters are of relevance to my reasons.
On 13 March 2019 a delegate of a Minister administering the Act made a decision under s 501(3A) of the Act to cancel the appellant's visa. Subsequently, on 6 November 2019, a delegate made a decision not to revoke the visa cancellation under s 501CA(4) of the Act. The appellant applied to the Administrative Appeals Tribunal for review of the delegate's non-revocation decision under s 500(1)(ba) of the Act. On 30 January 2020 a member of the Tribunal made a decision to set aside the decision of the delegate not to revoke the cancellation decision with the result that the appellant held a Class TY, Subclass 444 visa as granted earlier under the provisions of the Act. These facts meant that the precondition to the application of s 501BA was satisfied.
On 24 August 2020 a case officer of the National Character Consideration Centre of the Department of Home Affairs sent a letter to the appellant (through her solicitor). By that letter she was notified that a Minister administering the Act 'will personally give consideration to whether to set aside the original decision of the [Tribunal] and cancel [her] Class TY, Subclass 444 visa under s 501BA(2) of the Act'. The letter identified certain documents to which 'the Minister will have regard' and invited the appellant to comment on the information indicating that she may not pass the character test and that she may want to provide reasons why her visa should not be cancelled even if she does not pass that test. The letter indicated that the appellant was not obliged to respond to the notice, but that if she did not 'a decision may be made on the basis of the information the Department already holds, without further notice to [her]'.
The letter also said: … Even if you do not satisfy the Minister that you pass the character test, this does not mean that your visa will automatically be cancelled. The Minister will consider your reasons along with all relevant available information, before deciding whether or not to set aside the original decision and cancel your visa under s501BA(2). If you wish to provide any information to support your submissions that your visa should not be cancelled even if you do not pass the character test, you should do so within 28 days after you are taken to have received this notice. As indicated above, you are taken to have received this notice at the end of the day it was transmitted to you by email. If you wish to request an extension of time to comment on why your visa should not be cancelled even if you do not pass the character test, please contact the Department at the address or contact details indicated below (see 'Where to send your response') within the 28-day period. Any extension that may be granted for this purpose would not apply to the provision of information or material to satisfy the Minister that you pass the character test. As mentioned above, any information or material to satisfy the Minister that you pass the character test must be received by the Department within 28 days after you are taken to have received this notice. …
The letter indicated that if, after sending the notice and before a decision is made, 'the Department identifies additional relevant information that may be taken into account by the Minister [she] will also be sent the additional information'. Consistently, with that indication, a case officer of the NCCC sent letters to the appellant (through her solicitor) on 6 November 2020, 1 February 2021 and 21 April 2021.
The letter of 6 November 2020 drew the appellant's attention to the national interest criterion in s 501BA(2) of the Act and identified certain further information 'which may be taken into account when making the decision whether or not to cancel [her] visa'. The appellant was invited to comment on that information.
The appellant provided a statutory declaration on 3 December 2020 and a submission on 11 January 2021 to the Department.
The letter of 1 February 2021 indicated that the Department had been informed that on 16 December 2020 Adult Community Corrections had suspended the appellant's parole due to illicit substance use. The letter indicated that the information 'may be taken into account when making the decision whether or not to cancel [her] visa' and invited comment on that information.
The letter of 21 April 2021 indicated that the Department had received information consisting of a report of the Western Australian Department of Justice Adult Community Corrections dated 21 March 2021. A copy of the report was attached to the letter and the letter indicated that the information may be taken into account when making the decision whether or not to cancel the appellant's visa and invited comment on that information.
None of the letters from the NCCC to the appellant made any representation or gave any indication that the appellant's comment or response to the invitations would or may be taken into account when the Minister made the decision whether or not to cancel the appellant's visa. Moreover, each letter indicated that if a response was not received within the time stipulated (28 days from when the appellant was taken to have received the letter or an agreed extension) a decision may be made on the information then held by the Department.
On 19 May 2021 the appellant's solicitor sent the NCCC an email described as a response to 'the natural justice letters sent by [the Department] on 1 February 2021 and 21 April 2021'. The email attached a statutory declaration of the appellant dated 19 May 2021. The email also said: 'While we are still in the process of gathering some documents, we hope to have these in no more than 2 weeks and are aiming to provide some brief submissions in response to your letters at that time.'
On 29 July 2021 the appellant's solicitor sent an email to the NCCC. The email was said to be in response to the Minister's correspondence and attached a letter signed by the appellant's solicitor addressed to the Minister together with letters of reference from Natalie Ross, Clinical Services Manager, Holyoake, Victoria Park dated 12 July 2021, Ryan Oliver of R Services Group dated 13 July 2021 and Sam Gibbings, Board Member, TransFolk of WA dated 15 July 2021.
The submission was directed to two instances where the appellant's parole was suspended by the WA Prisoner's Review Board in December 2020 and March 2021 because of urinary tests revealing the presence of methylamphetamine indicating a breach of a condition of her parole by which she was required to abstain from alcohol and illicit drug use. These instances were referred to the NCCC letter of 1 February 2021 and in the report attached to the NCCC letter of 21 April 2021. The matters raised in the letter of submission may be summarised as follows:
The appellant submitted that her relapse into illicit drug use was not inexcusable in the circumstances in which she found herself. The submission was said to be in addition to the appellant's statutory declaration signed on 19 May 2021.
The appellant submitted that there had been a wide increase in the use of illicit drugs within the Australian community from the commencement of the COVID-19 pandemic in March 2020. In support of that submission the appellant relied on a report of the Illicit Drug Reporting System: Amy Peacock et al, IDRS, Australian Drug Trends 2020: Key Findings from the Illicit Drug Reporting System (IDRS) Interviews (Report, 2021).
The appellant submitted that unlike many others she had taken active steps and continued weekly to monthly counselling to manage her drug use. In support of that submission she referred to Natalie Ross' letter. She also submitted that relapses are part of the journey of recovery from addiction. In support of that submission she relied on a quotation from the Western Australian Department of Health's website published at https://www.health.gov.wa/health-topics/drugs/about-drugs/how-to-reduce-or-quit-drugs.
The appellant submitted that she had obtained employment with R Services Group. In support of that submission she relied on Ryan Oliver's letter. She submitted that employment had a beneficial effect on recovery from substance use disorders. In support of that submission she relied on a research paper published at https://www.researchgate.net/publication/309465252 The_Effects_of_Employment_Interventions_on_Addiction_Treatment_Outcomes_A_Review_of_the_Literature.
The appellant submitted that she has made and continues to make positive contributions towards marginalised communities within Australia and, for that reason, it would be in the national interest for her to remain in Australia. In support of that submission she relied on the letter of Sam Gibbings.
The appellant submitted that she had adhered to her HIV medications which had resulted in her viral load remaining undetectable. That was said to be indicative of remorse, successful rehabilitation and no risk of harm to the Australian community. The appellant appears to have relied on her statutory declaration of 19 May 2021 as the foundation for that submission.
Last, the appellant submitted that, due to the widespread use of illicit drugs in the Australian community, drug use per se cannot be considered a risk of harm to the community. In support of that submission she relied on a webpage of the Australian Institute of Health and Welfare published at https://www.aihw.gov.au/reports-data/behaviours-risk-factors/illicit-use-of-drugs/overview.
None of the letters or documents published on the websites referred to in the appellant's submission of 29 July 2021 was within the information the Minister considered when making his decision to cancel the appellant's visa. That is, the Minister's decision disregarded not only the appellant's submissions on the evidence or materials before the Minister, but also evidence or information that the appellant contended was relevant to the Minister's consideration of whether or not to cancel her visa in the national interest that was provided with her submission of 29 July 2021.

Applicable principles

The exercise of the power in s 501BA(2) is preconditioned upon the Minister's state of mind (satisfaction) in two respects. First, that the person does not pass the character test: s 501BA(2)(a). Second, that cancellation of the person's visa is in the national interest: s 501BA(2)(b). Section 501BA(4) provides that the power of cancellation may only be exercised by the Minister personally. That is, it is not a power that can be delegated or exercised by an agent. Section 501BA(3) provides that rules of natural justice do not apply to a decision under s 501BA(2).

Minister's power to seek (get in) further and current information or material

The effect of s 501BA(3) is to remove the implicit obligation to accord a person procedural fairness that would otherwise arise from a decision to exercise the power to cancel a visa under s 501BA(2). But, absence of an obligation does not prohibit the Minister from according a person procedural fairness in the exercise of the power. The Minister has an implicit power to seek more information before making a decision under s 501BA(2). Thus, the Minister may request further information from the Department, the visa holder or a third party: Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 at [26] (White, Perry and Charlesworth JJ). Here, it is clear that the Minister correctly understood that he could, but need not, invite submissions from the appellant. Therefore, subject to the issue of legal unreasonableness, a decision not to invite submissions or advert to that question at all would not amount to legal or jurisdictional error: Ibrahim at [62]. As to the issue of legal unreasonableness, in Vargas v Minister or Home Affairs [2021] FCAFC 162; 286 FCR 387, the Full Court (McKerracher, Markovic and Sarah C Derrington JJ) accepted that the exercise of the Minister's power under s 501BA(2) is subject to judicial review and that may extend to legal unreasonableness, in substance, in failing to request information from the visa holder before exercising the power. However, on the facts of that case, legal unreasonableness was not established: Vargas at [26]-[43].
The Minister manifestly has power to seek or request further information from the Department, the visa holder or a third party before exercising the power under s 501BA(2). 'It is a facilitative power to assist the Minister in reaching the correct or preferrable decision and to assist the Minister to ensure that she or he has sufficient probative material to support the findings and conclusions that she or he may be inclined to make': Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [79] (Mortimer and Bromwich JJ). The power to seek information may be understood as a reflection of the general principle 'that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker'. Further, in general, 'an administrative decision-maker is required to make his decision on the basis of the material available to him at the time the decision is made': Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 45 (Mason J). Although, no obligation to examine the most recent and accurate information arises unless the factor to which the information is relevant is essential to the exercise of the statutory power (a mandatory relevant consideration): Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [80] (Kiefel and Bennett JJ).

Legal reasonableness

Section 501BA(2) confers a discretion on the Minister. In general, the legislature is taken to intend that such a power will be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [63] (Hayne, Kiefel and Bell JJ).
Legal unreasonableness may arise as an inference from the outcome or through the process by which the outcome was reached. As Allsop CJ explained in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1: 12 Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised. 13 The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
As Derrington and Hespe JJ observe in their reasons, the concept of legal unreasonableness is not confined to why a statutory decision is made, but extends to how it is made: Li at [91] (Gageler J). In addition to an 'intelligible justification' for the decision, decisions must be made 'through an intelligible decision-making process': ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [20] (Kiefel CJ, Bell, Gageler and Keane JJ); Li at [105].
A legally unreasonable decision is one that is beyond power if the statutory power properly construed, having regard to the scope, purpose and objects of that power, has been abused by the decision-maker. The manner in which abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. It is not limited to specific errors or labels such as 'manifestly unreasonable' or 'irrational' or 'bizarre' so that no reasonable person could have arrived at it. In a review that is outcome focussed, it is not necessary to identify any particular error to find a conclusion of unreasonableness. The question is whether the result 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. That does not involve undertaking merits review, but rather asking whether the purported exercise of the power was beyond the permitted scope because it was legally unreasonable. That exercise is fact dependent, requires a careful evaluation of the evidence and, where reasons are provided, they will form the focal point for that assessment: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [78]-[84] (Nettle and Gordon JJ).
While arising in the context of the operation of Pt 7AA, the observations of the High Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) in Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 (at [26]-[27]) are also apposite to the exercise of the implicit statutory power of the Minister to request or seek further information before exercising power under s 501BA(2). There, their Honours said (citations omitted): 26 A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power". 27 As Griffiths J correctly held in the Full Court, there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information. Nor is there any general obligation upon the Authority to get new information. This is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law. However, the power in s 473DC is still subject to the usual implication that it must be exercised within the bounds of legal reasonableness. Hence, this Court has held that a decision can be invalid if it is made in circumstances which exceed the high threshold of legal unreasonableness for the Authority's failure to exercise the power in s 473DC to get new information.
In the context of s 501BA(2), legal unreasonableness is also not to be assessed through the lens of natural justice. But, the failure of the Minister to exercise power to request information from the Department, visa holder or a third party may, in appropriate circumstances, exceed the high threshold of legal unreasonableness. The corollary of that conclusion is that a failure to have regard to the most current material available at the time a decision is made may also, in appropriate circumstances, exceed that high threshold. Further, where the Minister relies entirely on a departmental summary or submission that is the product of a failure on the part of the Department to request information or bring current information to the attention of the Minister, the consequence may be that the Minister's decision is infected with legal unreasonableness and the Minister's state of mind that is a precondition to the authorised exercise of power will not have been formed according to law: e.g., Peko-Wallsend at 30-31 (Gibbs CJ) with respect to a failure to take into account a mandatory relevant consideration as a consequence of reliance on a departmental summary. (The judgment of Mason J (at 44-46) with whom Dawson J agreed (at 71) is to a similar effect. See, also, Brennan J, in dissent, (at 64-67).) But, as is noted in the reasons of Derrington and Hespe JJ, the Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest. Therefore, within the boundaries of reasonableness, the factors that the Minister considered were relevant to his decision were a matter for the Minister to determine. Accordingly, mere failure to consider information, without more, is not indicative of legal unreasonableness or error or abuse of power.

Minister's exercise of personal non-delegable powers

The Act confers a number of personal non-delegable powers on the Minister. Section 46A(2) confers power on the Minister to 'lift the bar' and allow a person who is an unauthorised maritime arrival to apply for a visa that the person is otherwise precluded from making under s 46A(1) of the Act. Section 48B(1) confers power on the Minister to determine that a person may apply for a protection visa that the person is otherwise prevented from making under s 48A of the Act. Section 195A(2) confers power on the Minister to grant a visa to a person who is in detention under s 189 of the Act. Section 351(1) confers power on the Minister to substitute a decision that is more favourable to an applicant than a decision of the Administrative Review Tribunal (formerly, the Administrative Appeals Tribunal) made under s 349 (Part 5-reviewable decision). Prior to recent amendments, s 417(1) conferred similar powers with respect to s 415 (Part 7-reviewable decision). These powers may be described as dispensing provisions because they have the effect of dispensing with other provisions of the Act that would otherwise apply to a non-citizen. All these dispensing provisions have the common feature that the power is conferred on the Minister personally, is non-delegable and the Minister is under no duty to consider whether to exercise the power.
Although the dispensing powers are powers that may be exercised in favour, rather than against, a non-citizen they also have many features in common with s 501BA. First, the dispensing powers are personal and non-delegable. Second, the Minister has no duty to consider whether to exercise the dispensing powers. That qualification is necessary because it is implicit that a non-citizen may make a request to the Minister to exercise one or more of the dispensing powers in that person's favour: Plaintiff S10/2011 at [31] (French CJ and Kiefel J). In the case of s 501BA(2), it is implicit that the Minister is under no duty to consider whether to exercise that power. Unlike the dispensing powers, there is no need to expressly qualify the power in s 501BA with a statement that the Minister is under no duty to consider exercising that power because there is virtually no likelihood that a non-citizen would request the Minister to exercise that power to cancel that person's visa. Third, the dispensing powers in ss 48B, 195A and 351 (and the former s 417) have been construed as excluding any obligation on the part of the Minister to accord a non-citizen procedural fairness in the exercise of the power: Plaintiff S10/2011 at [100] (Gummow, Hayne, Crennan and Bell JJ). As already mentioned, in the case of s 501BA, the rules of natural justice are expressly excluded. Last, the dispensing powers may be exercised if the Minister thinks that it is in the public interest to do so. As already mentioned, the power in s 501BA(2) may be exercised if the Minister is satisfied that a person does not pass the character test and that cancellation is in the national interest. The concepts of 'public interest' and 'national interest' are both quintessentially political and the factors relevant to them are matters for the Minister to determine. For these reasons, the power to cancel a visa in s 501BA(2) is analogous to the dispensing powers in the other provisions of the Act.
The dispensing powers have been construed to involve two steps. First, a determination to consider whether it is in the public interest to exercise the power (a procedural decision). Second, if a decision is made to so consider, then a determination of whether it is in the public interest to exercise the power (a substantive decision): Plaintiff M76/2013 at [24]; Plaintiff M61/2010E at [70]; Davis at [14] (Kiefel CJ, Gageler and Gleeson JJ). Both the procedural decision and the substantive decision are personal and non-delegable and the Minister is under no duty to make a procedural or substantive decision: Davis at [12]-[19] (Kiefel CJ, Gageler and Gleeson JJ).
Having regard to the similarities between s 501BA and the dispensing provisions, as a matter of logic and construction, the exercise of power under s 501BA(2) also involves, relevantly, a procedural decision to consider whether it is in the national interest to exercise the power and, if so, a substantive decision as to whether it is in the national interest to do so. However, it does not follow that, as a matter of statutory construction, if the Minister has decided to consider exercising the power under s 501BA(2) and the Department invites a person to comment on the information which the Minister will or may take into account in making the substantive decision, the Minister's power has, thereby, become conditioned by a requirement to accord the person procedural fairness or that the effect of s 501BA(3) is exhausted or spent.

The issue of procedural fairness

Amongst other things, the appellant contends that, because s 501BA is analogous to the dispensing provisions considered in Plaintiff M76/2013 and Davis, relying on the reasons of Gordon J in Davis (at [98]), the Minister (through the Department) might put himself in a position in which he was committed to following a process that required him to accord the appellant procedural fairness.
In Davis, relevantly, Gordon J said: [98] Section 351 is a conferral of statutory executive power on the Minister. The Minister does not have a duty to consider whether to exercise the power under s 351(1) in any circumstances [Section 351(7) of the Migration Act]. This means the Minister cannot be compelled to consider whether to exercise the power. It must be recognised, however, that a Minister might put themselves in a position where they are committed to following a certain process and may become obliged to consider exercising the power [Compare Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; 304 ALR 135; 136 ALD 457; [2013] HCA 53 at [24]-[26], [88]-[91]].
The appellant's contention is that while there is no requirement to afford natural justice to a visa holder before a procedural decision is made, after a procedural decision is made, the Minister may become bound to accord the visa holder procedural fairness in the process by which the Minister is informed of information and takes into account information the Minister considers is relevant to the national interest criterion. The appellant contends, in substance, that by inviting the appellant to comment on the further information identified in the NCCC letters of 1 February 2021 and 21 April 2021 the Minister, through the Department, was committed to a process that then required the Minister to consider and take into account the appellant's responses to the Department's invitations. The appellant contends that the primary judge was wrong to reject that contention: PJ [69].
The references of Gordon J in Davis (at [98]) to Plaintiff M76/2013 (at [24]-[26] and [88]-[91]), in turn, draw on the High Court's judgment in Plaintiff M61/2010E. In Plaintiff M61/2010E the High Court held that officers of the Department were obliged to accord certain visa applicants procedural fairness in connection with assessing and reviewing claims that Australia owed them protection obligations. However, the operation of s 46A and s 195A and the circumstances of that case were quite different to the circumstances and operation of s 501BA in this case.
The background to both Plaintiff M61/2010E and Plaintiff M76/2013 was that the Minister had made an announcement to the effect that the Minister had decided that consideration would be given to exercising the power under s 46A and s 195A in every case in which an offshore entry person claimed that Australia owed that person protection obligations. After the announcement, the Department developed two procedural manuals describing the process for assessment of refugee status in respect of offshore entry persons. The purpose of the process was to advise the Minister whether Australia had protection obligations to offshore entry persons who claimed that Australia owed them such obligations.
On the basis of the Minister's announcement and the Department process, in Plaintiff M61/2010E the High Court held that detention of claimants during the conduct of the Department's inquiries and assessment and review process was lawful because that process was undertaken for the purpose of the Minister considering the exercise of power under s 46A or s 195A. The Court also held that, as detention for that purpose affected the claimant's liberty, it directly affected the rights and interests of those who were the subject of assessment or review. In accordance with well-established authority, in those circumstances, as there were no words of necessary intendment excluding the principles of natural justice, the conferral of the powers under s 46A and s 195A were construed to be understood as conditioned on the observance of the principles of natural justice: Plaintiff M61/2010E at [70]-[79].
Plaintiff M76/2013 followed Plaintiff M61/2010E. In Plaintiff M76/2013 French CJ (at [24]-[26]) expressed the view that a claimant's continued detention was based upon the need to make relevant inquiries in aid of the assessment and review process. It is implicit from his Honour's reasons that he considered that lawful detention depended on that process continuing to a conclusion. Justice Hayne was more explicit. His Honour expressed the view (at [88]-[91]) that once the Minister had decided to consider whether to make a determination under s 46A(2), that consideration had to be concluded. The Minister was committed to following that process because the continued lawful detention of the claimant depended on that process continuing.
It follows that the observations of Gordon J in Davis (at [98]), in context, have no application to the circumstances of the appellant's case or the operation of s 501BA(2). Here, there are express words of necessary intendment in s 501BA(3) excluding the application of the principles of natural justice to the exercise of the power under s 501BA(2) whether that be a procedural or substantive decision under that power. Further, putting to one side the express exclusion of the principles of natural justice, the Minister has taken no statutory step equivalent to those taken in Plaintiff M61/2010E and Plaintiff M76/2013 and there is no circumstance requiring a process to be followed or completed because the lawfulness of some other action depends upon it.
The Department's letter of 24 August 2020 merely indicates that a decision had been made to consider exercising power under s 501BA(2). There is no evidence of the establishment of anything like the process of inquiry, assessment or review, submission and recommendation that applied to the Minister's announcement under consideration in Plaintiff M61/2010E. As was observed in Plaintiff S10/2011 (at [47]), '[t]here are variants, in the public administration, of departmental processes which are anterior to the exercise of statutory powers but do not constitute or evidence their exercise. The assessment and review process considered in [Plaintiff M61/2010E] did not fall within that category.' There is nothing raised in the grounds of review or the grounds of appeal to suggest that the Department's processes in this case were anything other than steps which were anterior to the exercise of the Minister's power under s 501BA(2) following a procedural decision to consider exercising that power. There was no evidence concerning the manner in which the Minister made the procedural decision. Except for the communications from the Department to the appellant and the submission to the Minister, there was no evidence of any process the Department employed to inquire and advise the Minister. There was no evidence of any directions or guidelines given to the Department.
In Plaintiff S10/2011, even in the absence of an express exclusion, the High Court held that the dispensing powers in ss 48B, 195A and 351 (and the former s 417), by necessary intendment, were not attended by the requirements of procedural fairness: Plaintiff S10/2011 at [32], [50] (French CJ and Kiefel J), [100] (Gummow, Hayne, Crennan and Bell JJ). In the reasons of French CJ and Kiefel J their Honours observed: 48 An administrative inquiry may be undertaken and an advice prepared for the purposes of the exercise of a statutory power. If the requirements of procedural fairness constrain the exercise of that power, and the decision-maker relies entirely upon advice proffered in disregard of those requirements, then the statutory decision may be infected by jurisdictional error. … Conversely, if the exercise of power is not constrained or conditioned by the requirements of procedural fairness, it stands to reason that if the decision-maker relies entirely upon advice proffered in disregard of those requirements, the decision cannot be one infected by jurisdictional error on account of a failure to accord procedural fairness.
Davis also concerned the dispensing powers. However, the relevant issue in that case concerned the extent to which, through guidelines the Minister had given to the Department, the Minister had impermissibly delegated part of the personal and non-delegable function of the Minister to determine the public interest in the exercise of power under s 351 of the Act. The point that Gordon J made (at [98]) concerned the absence of any duty on the part of the Minister to consider whether to exercise the power under s 351(1). Her Honour was merely illustrating that, by making a decision to consider the exercise of a substantive power, the Minister could be put in a position in which there was an obligation to complete that process. For example, by reference to Plaintiff M76/2013, where the lawfulness of continuing detention of a person depended upon the Minister's decision to consider exercising the power. Further, it formed part of her Honour's reasons for not accepting, where a non-citizen had made a request to the Minister to exercise a dispensing power, that the Minister is under no obligation to make a procedural decision at all: Davis at [97]-[102]. Thus, Davis and the reasoning of Gordon J have no bearing on the applicability of the principles of natural justice to the exercise of the Minister's power under s 501BA(2) of the Act.
It follows that the analogous nature of the power under s 501BA(2) with the dispensing powers is not a reason for considering that the exercise of power under s 501BA(2) may become conditioned by a requirement to afford a person procedural fairness based on steps the Department has taken or the Minister has taken that are antecedent to the exercise of the procedural or substantive power under s 501BA(2). Indeed, the opposite is the case.
Further, in Plaintiff M61/2010E the Court held that because s 46A and s 195A both state, in terms, that the Minister does not have a duty to consider whether to exercise the power given by the section, mandamus will not issue to compel the Minister to consider or reconsider exercising either power. The unavailability of mandamus entailed that there was no utility in granting certiorari to quash the recommendation which the reviewers had made which were found to have been made in breach of the principles of procedural fairness. However, declaratory relief was granted to the effect that the process undertaken by the reviewers to arrive at the reviewer's recommendations was flawed: Plaintiff M61/2010E at [99]-[104].
The grounds of review and appeal in this case do not directly concern the procedure of the Department and the process by which it made inquiries, obtained information, and made a submission to the Minister concerning the appellant. Therefore, the extent to which the process adopted by the Department to make a recommendation to the Minister after the Minister had made a decision to consider exercising the power in s 501BA(2) could require the Department to accord a visa holder procedural fairness does not arise and need not be explored in this appeal.

The issue of legal unreasonableness

The appellant contends that the Minister's decision was legally unreasonable both as to process and outcome.
The appellant submits that the process was unreasonable because the Minister violated the procedure that he said he would follow and gave no rational justification for that course. Further, in adopting the Department's submission he adopted its virtues and vices and was seriously misled as to the facts and thus the nature of the decision made. The appellant cites the following authorities in support of that proposition: Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117; 225 FCR 97 at [94] (Logan J), Williams v Minister for Justice and Customs of the Commonwealth of Australia [2007] FCAFC 33; 157 FCR 286 at [24]-[29] (Gyles, Allsop and Buchanan JJ); Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 388; 18 ALD 129 at 133 (Pincus, Gummow and Lee JJ), Geroudis v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA, 153; 19 ALD 755 at 757 (French J); Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; 154 FCR 365 at [86] (French J); Le v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 51; 215 ALR 521 at [32] (Lee J). The appellant also submits that her case is an example of the type where 'an exercise of power which is said to be legally unreasonable … overlap[s] with an alleged denial of procedural fairness because the result of the exercise of the power may affect the fairness of the decision-making process': Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [50] (Allsop CJ, Robertson and Mortimer JJ).
The appellant submits that the outcome was unreasonable because ignoring the further information provided on 29 July 2021 had the character of arbitrariness. That is, the Minister arbitrarily ignored material that was in his constructive possession.
While expressed as unreasonableness both as to process and outcome, in point of detail, the appellant's case amounts to a contention that it was legally unreasonable for the Minister to ignore, or fail to consider or take into account, the submission and information the appellant provided to the Department on 29 July 2021. However, the difficulty with the appellant's case regarding legal unreasonableness is that the Minister was under no obligation to consider or take into account any information she provided to the Department in response to the invitations in the letters of 24 August 2020, 6 November 2020, 1 February 2021 and 21 April 2021. Further, none of the Department's communications represented that any response would or may be considered by the Minister. It was entirely a matter for the Minister to determine what factors were relevant and what submissions or information he would take into account in considering the national interest and whether or not to cancel the appellant's visa. Further, the appellant did not seek to characterise, nor could she characterise, her further submissions and information as mandatory relevant considerations of the kind that if disregarded may result in jurisdictional error: Peko-Wallsend at 39-43.
Additionally, all the authorities upon which the appellant relies for the proposition that where a Minister is seriously misled as to the facts by a departmental submission it may result in jurisdictional error were cases where the Minister was required to observe the principles of natural justice. Similarly, the example of overlap between legal unreasonableness and procedural fairness to which reference was made in Singh (at [50]) concerned the exercise of a statutory power of adjournment. Li also concerned a legally unreasonable failure to exercise a power to adjourn a hearing. The failure to exercise an adjournment power may be both legally unreasonable and result in a failure to afford a person procedural fairness. Plainly, an adjournment power that can be exercised in the context of a hearing (that is, in the course of giving effect to the hearing rule of natural justice) is quite different from the power in s 501BA(2). Therefore, all these authorities are distinguishable and are of no assistance to the appellant.
For the reasons given by Derrington and Hespe JJ, I agree that this aspect of the appellant's contentions and submissions should be rejected.
The appellant also contends that the Minister identified the appellant's risk of reoffending as relevant to his evaluation of the national interest. In considering that issue the Minister had regard to the information the appellant provided on 3 December 2020 and 19 May 2021, but not the information provided on 29 July 2021. The appellant submits that the failure to take into account the 29 July 2021 information fell outside the area of decisional freedom conferred on the Minister under s 501BA(2) and was arbitrary. In substance, the appellant contends that having identified the topic of reoffending as relevant, it was not open to the Minister to have selective regard to the material in his possession and ignore more up to date material from the same source (the appellant) that bore on that topic. In this regard, the appellant relies on LJTZ at [79]-[87] (Charlesworth J). The appellant contends that the primary judge was in error for failing to accept her contentions and that the primary judge's reasons for distinguishing LJTZ were not compelling.
The primary judge rejected the appellant's contentions and submissions that were founded on LJTZ as follows. 97 I note that Ms Palmer submitted that legal unreasonableness can be discerned from the Minister's failure to consider the 29 July 2021 material despite having identified that Ms Palmer's risk of reoffending was a relevant consideration to the Minister's evaluation of the national interest (see MD[19]-[20]). Ms Palmer submitted that her material went to that consideration. Ms Palmer acknowledged that the matters which the Minister had identified as being relevant to his evaluation of the national interest criterion were not mandatory considerations: see Vargas at [61]. However, she submitted that this was of "no relevant consequence" (see LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209), as what made the Minister's failure to have regard to the material unreasonable was the fact that the material provided the most up-to-date information regarding Ms Palmer's employment status, her contributions to the community, the steps she had taken to address her drug use and her medical treatment (cf LJTZ at [86]). 98 Ms Palmer conceded that the 29 July 2021 material, whilst going to relevant considerations, did not relate to mandatory relevant considerations. Further, an asserted obligation to have regard to the most up-to-date material is "only applicable where that material is essential to the exercise of power, or in other words, it must relate to a mandatory consideration": Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758 at [55]. I accept the Minister's submission that whilst the overlooked information may have been relevant to the considerations identified by the Minister, this did not mean that the Minister did not already have sufficient probative material to support his findings: Chamoun at [79], quoted in Vargas at [33]. 99 LJTZ is distinguishable from Ms Palmer's case. There the Court held that the Minister had acted unreasonably and irrationally by falsely stating that he had considered certain material, which is not what occurred in Ms Palmer's case: LJTZ at [14], [36], [45]. Further, in LJTZ, the Minister relied on the impugned statement as a basis for declining to afford the applicant procedural fairness (at [53]), which is not what occurred in Ms Palmer's case. I accept the Minister's submission that here, unlike LJTZ, there is no particular unreasonableness or illogicality identified in the Minister's reasons. Accordingly, the claim relates to outcome not process unreasonableness. The question is then whether the ultimate decision was within the bounds of reasonableness. To descend into a more granular review amounted to an attempt to run an impermissible procedural unfairness complaint under a different name so as to avoid the effect of s 501BA(3): Unreasonableness is not to be judged through the lens of procedural fairness: DUA16 at [26]. Whilst claims of procedural unfairness and legal unreasonableness may overlap, this does not mean that procedural unfairness amounts to unreasonableness without having regard to the particular power in question and the particular complaint made.
In LJTZ Charlesworth J concluded that, in the exercise of the power under s 501BA(2), having identified the topic of the visa holder's rehabilitation efforts as relevant, it was not open to the Minister to have selective regard to the material before the delegate but ignore more up to date material from the same source in his actual or constructive possession that bore upon the topic. The material the Minister evidently took into account was contradicted by the more up to date material. Her Honour was of the view that the Minster employed an arbitrary process of reasoning and that was not authorised by s 501BA(2). Central to her Honour's reasoning were the propositions that: (1) s 501BA(2) has a temporal component that required the Minister to form a state of mind about the national interest at the time that the power is exercised, not what it might have been at some earlier point in time; (2) the Minister is required to make findings of fact about the matters that he considers to be relevant to the national interest and that fact-finding is to be exercised within the bounds of legal reasonableness; and (3) a false statement in the Minister's reasons to the effect that he had given consideration to up to date material that was, in truth, ignored and therefore, demonstrated illogical or irrational reasoning in the Minister's fact-finding: LJTZ at [14], [36], [45]-[50], [79]-[87].
To the extent that the reasons in LJTZ were based on illogical or irrational fact-finding because of the false statement in the Minister's reasons in that case, I agree with the primary judge that LJTZ is distinguishable from the appellant's case. But, I do not regard the particular manner in which Charlesworth J found that the Minister's reasons were illogical or irrational to mean that her Honour's reasoning in LJTZ does not expose principles of more general application.
Further, while I accept that an asserted obligation to have regard to the most up to date material is only applicable where that material is essential to the exercise of power, I do not understand the appellant to be contending in this case that the Minister was under an obligation to consider the most up to date material. Rather, the substance of the appellant's complaint is that the Minister's failure to take into account the most up to date material on a topic that the Minister had identified as material and relevant to his decision was arbitrary. That alleged failing could also be described as illogical or irrational. In this regard, in my view, that the Minister may have had sufficient probative material to support his findings is not to the point if he arbitrarily disregarded other material information in his possession in reaching those findings.
In my view, a failure on the part of the Minister to consider or take into account current information (information current at the time of the decision) within his actual or constructive possession that is of a kind that the Minister has identified as relevant to the national interest and is of a similar kind to information that was taken into account when exercising power under s 501BA(2) to cancel a person's visa may amount to legal unreasonableness where the Minister's process of reasoning for disregarding that information is illogical or irrational: LJTZ at [14], [36], [45]-[50], [79]-[87] (Charlesworth J). That is, the exercise of power under s 501BA(2) may approach the high threshold of unreasonableness and meet the description of arbitrary, capricious, illogical, irrational or unreasonable if current information in the Minister's actual or constructive possession that was manifestly material and relevant to the decision as made was ignored or overlooked in the Minister's fact-finding process.
However, beyond an assertion that disregarding the submissions and information provided on 29 July 2021 was arbitrary, the appellant has not particularised the manner in which it is alleged, if at all, that taking into account earlier information and disregarding the later material was illogical or irrational. Specifically, the appellant has not identified the manner in which it is alleged, if at all, that the disregarded information was so material or relevant to the topic the Minister had identified that to ignore the information would defy logic or rationality and meet the description of arbitrary or capricious decision-making. The appellant has not identified the manner in which it is alleged, if at all, that the disregarded information contradicted or affected in some material way the information the Minister actually took into account in making his decision. Nor has she sought to demonstrate the manner in which it is alleged that failure to provide the submission and information to the Minister resulted in him being 'seriously misled as to the facts'.
It was not the role of the primary judge and it is not the role of an appellate court to rake through the appeal books in an attempt to divine the manner in which it could or might be said that the 29 July 2021 information was so material that to disregard it was illogical, irrational or otherwise manifestly unreasonable. In circumstances in which the Minister had no duty to request information from the appellant, no duty to consider information provided by the appellant and no duty to consider the most up to date information about any factor he considered relevant, mere disregard of information provided to the Department does not bespeak arbitrary or capricious decision-making or an illogical, irrational, or manifestly unreasonable exercise of power under s 501BA(2). Therefore, while I am of the view that there is a sound legal principle underpinning the relevant aspect of ground 1(b) of the notice of appeal, the appellant has failed to demonstrate that the primary judge was in error for rejecting her contention that the Minister's failure to take into account the 29 July 2021 submission and information was legally unreasonable and resulted in an unauthorised exercise of power under s 501BA(2) of the Act. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.

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