Rano v Minister for Home Affairs, Minister for Cyber Security

Was the Minister bound to take into account indefinite exclusion from Australia? 3 It was common ground that in making a decision under s 501(3) of the Act the Minister was bound to take into account the legal consequences of a decision because those consequences are part of the legal framework in which the decision is made: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84]. 4 The Minister submits that the legal consequences to be taken into account are limited to the direct and immediate statutorily prescribed consequences of the decision in contemplation. However, I do not accept that legal consequences are necessarily so limited. The Court in Taulahi said that legal consequences 'include' the direct and immediate statutorily prescribed consequences. Moreover, the Court in Taulahi emphasised that the legal consequences that are part of the legal framework are derived from the well-established principle that broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it: Taulahi at [84]. Therefore, it is the subject matter, scope and purpose of the Act that relevantly determine what legal consequences, whether they be direct or indirect or immediate or more remote, that a decision-maker is obliged to take into account in the exercise of broad statutory discretion. 5 In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1, at [3], [9]-[10] (Allsop CJ and Katzmann J), the Court indicated that the Minister must take into account the Act and its operation and the legal consequences that flow from the decision where those consequences form part of the legal framework of the decision. But, is the 'practical realities' in 'human terms' of the legal consequences that are important rather than the legal consequences in the abstract. In NBMZ the appellant had been found to be a refugee which meant that, because of Australia's obligation of non-refoulement, a legal consequence of the decision to refuse the grant of the appellant a visa and the operation of the Act, as then understood, was that the appellant would be held in immigration detention indefinitely. The Minister had not taken into account indefinite detention as a legal consequence of the decision in that case. 6 It follows that the subject matter, scope and purpose of legislation may well require a decision-maker to take into account indirect and non-immediate legal consequences that form part of the legal framework of a discretionary decision under that legislation where those consequences flow from the decision by operation of the Act. Consideration of legal consequences does not take place in a vacuum. Relevantly, it is the legal consequences for the person affected by the decision under consideration. Legal consequences may have practical realities in human terms for the person so affected. 7 It is common ground that a consequence of the Minister's decision to cancel the applicant's visa under s 501(3) is that he cannot satisfy the special return criteria in cl 5001 of Sch 5 of the Regulations. It is also common ground that satisfying the special return criteria in cl 5001 is a prescribed criterion for any class of visa for which the applicant could apply: cll 143.227 (Contributory Parent (subclass 143) visa), 186.214 (Employer Nominated (subclass 186) visa), 189.212 (Skilled - Independent (subclass 189) visa), 200.227 (Refugee (subclass 200) visa), 309.226 (Partner (subclass 309) visa), 400.216 (Temporary Work (Short Stay Activity) (subclass 400) visa), 482.218 (Temporary Skill Shortage (subclass 482) visa, 500.218 (Student (subclass 500) visa), 601.214 (Electronic Travel Authority (subclass 601) visa), 602.219A (Medical treatment (subclass 602) visa) of Schedule 2 of the Regulations. Another consequence of the Minister's decision is that the applicant became an unlawful non-citizen and, as such, there is an obligation to take him into immigration detention and, ultimately, remove him from Australia as soon as reasonably practicable: ss 189, 196, 198 of the Act. 8 The Minister submits that a consequence of her decision is not to permanently exclude the applicant from travelling to, entering and (or) remaining in Australia because he may be eligible and obtain a special purpose visa under s 33 of the Act and (or) other classes of visa prescribed in Sch 2 of the Regulations to which the special return criteria do not apply. Therefore, so the Minister submits, while the applicant's return to Australia may be highly unlikely it is wrong to characterise it as permanent. 9 Further, the Minister submits the decision under s 501(3) did not have the direct and immediate consequence of permanently excluding the applicant from entering Australia. The Minister submits that the legal impediment to obtaining a visa is a consequence that can only be visited upon him if he takes some step in the future (applies for a visa). Whether the applicant will do so is a matter of speculation. In substance, the Minister submits that it cannot be discerned from the subject matter, scope and purpose of the Act that matters of speculation are mandatory considerations in the exercise of power under s 501(3) of the Act: Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [17]-[18]; see, Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [19]. The Minister also submits that, in any event, the Regulations and special return criteria cannot be used to construe the Act. 10 Although the applicant originally characterised the legal consequence of the Minister's decision as permanent exclusion from Australia, in the course of the oral hearing he re-characterised the consequence as a permanent, indefinite or enduring exclusion from Australia or otherwise that a return to Australia was highly unlikely. However characterised, so the applicant submits, it was a legal consequence of the Minister's decision which she failed to take into account. Therefore, in the end, the Minister's attack on the applicant's ground of review, insofar as it is founded on the distinction between permanent and highly unlikely, is not of any real moment for the purposes of this proceeding. 11 As to the question of construction and speculation, in the case of the grant, refusal and cancellation of visas it is artificial to separate operation of the Act from operation of the Regulations when considering the applicable legal framework. The Act establishes two categories of non-citizen: lawful and unlawful. A lawful non-citizen is the holder of a visa that is in effect: s 13, s 14. The Minister may grant a non-citizen a permission (known as a visa) to travel to, enter, and (or) remain in Australia: s 29. The Act identifies certain classes of visa, but also contemplates that there will be other classes of visa prescribed in the Regulations and that the Regulations will prescribe the circumstances in which visas are to be granted and conditions attaching to visas: ss 30-43. Subject to the Act and Regulations, a non-citizen who wants a visa must apply for a visa of a particular class: ss 44-64. Amongst other things, if satisfied that the criteria for the visa prescribed by the Act or Regulations have been met, the Minister must grant the visa: s 65. It follows that if as a result of a discretionary decision of the Minister under the Act a non-citizen becomes ineligible for the grant of a particular class of visa specified in the Regulations, that may be characterised as a legal consequence that flows from the decision of the Minister. 12 Relevantly, the legal consequence of the Minister's decision is that the applicant will be removed from Australia and cannot satisfy the special return criteria in cl 5001 of Sch 5 of the Regulations. In substance, that means that the applicant is ineligible for most classes of visa that would otherwise relate to him. That is not a matter of speculation. It is not necessary to wait for an application for a visa to be made to know that he cannot be granted a visa in any of the applicable classes. Therefore, the practical reality in human terms that flows from the legal consequences of the Minister's decision is that the applicant will be removed from Australia and, thereafter, will be precluded from travelling to, entering and (or) remaining in Australia unless he is able to bring himself within the criteria of a visa class to which the special return criteria does not apply. In much the same way that a legal consequence may be characterised as 'indefinite detention', the legal consequence here may be characterised as removal and 'indefinite exclusion' from Australia. Moreover, in my view, not only is that a legal consequence it is manifestly a purpose of the applicable statutory framework and scheme that includes s 501(3). 13 It is evident that a purpose of specifying that the special return criteria be satisfied for the various visa classes in Sch 2 is that persons who have had their visas cancelled under s 501(3) cannot satisfy the visa criteria and, therefore, cannot be granted visas in those classes and lawfully travel to, enter and (or) remain in Australia. It would plainly defeat a purpose of s 501(3) of the Act if persons who have had their visas cancelled on the grounds of national interest could, upon removal from Australia, immediately be granted a visa and return to Australia because all other criteria for the grant of that visa are satisfied. 14 It follows that the applicant's indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa under s 501(3) of the Act. Accordingly, that was a consideration the Minister was bound to take into account.

Was there a failure to take into account the special return criteria? 15 The Minister's statement of reasons for cancellation of the applicant's visa (MR) makes no express reference to the special return criteria. However, notwithstanding the absence of an express reference, a failure to take into account that a consequence of the cancellation of the applicant's visa were: (1) that he would be removed from Australia; and (2) thereafter, he would not be able to travel to, enter and (or) remain in Australia, does not emerge from her reasons. 16 It is well-settled that in an application for judicial review of administrative action the applicant has the onus of establishing on the balance of probabilities the fact upon which a claim to relief is founded. Where the factual basis for that claim is founded on inferences to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference is to be evaluated having regard to two settled principles. First, it must be read fairly and not in an unduly critical manner. Second, it must be read in light of the content of the statutory obligation, if any, pursuant to which it was prepared: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The Court is not astute to discern error when considering the meaning of reasons. Where the decision-maker is not bound to give reasons, it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the decision-maker. Further, the reasons are not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy maybe gleaned from the way in which the reasons are expressed: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] (French CJ, Bell, Keane and Gordon JJ). See, also, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272, 278, 282 (Brennan CJ, Toohey, McHugh and Gummow JJ). While the Minister was required to notify the applicant of her decision and provide him with certain information relevant to the decision, there is no requirement for the Minister to provide a statement of reasons for her decision: s 501C(3) of the Act; Stevens v Minister for Immigration and Border Protection [2016] FCA 1280 at [39]-[40] (Charlesworth J). 17 As already mentioned, a manifest legal consequence of the Minister's decision under s 501(3) was to prevent the applicant from satisfying the prescribed criteria of most classes of visa. That was an obvious outcome and purpose of specifying that applicants for those classes of visa must satisfy the special return criteria. That was plainly an intended outcome and purpose of the overall legislative scheme that includes the power under s 501(3). It is not necessary for the Minister to have expressly referred to that consequence because it looms large and forms part of the implicit, if not explicit, assumptions and backdrop against which she evaluated all considerations that she thought relevant to the exercise of the power under s 501(3). 18 The Minister acknowledged and understood that the consequence of a decision to cancel the visa would be that his application for a partner visa would be refused and his right to remain in Australia would end. Therefore, implicitly, the Minister understood that the consequence of a decision to cancel would be removal of the applicant from Australia: MR [2]-[3]. 19 When evaluating the national interest, the Minister identified as matters relevant to that consideration the protection of the community, prevention of conduct constituting sexual offending against children and the expectations of the Australian community: MR [19]-[74]. It is evident from the Minister's discussion of that topic, as a whole and in context, that her consideration takes place against an assumption that a decision to cancel the visa will result in the removal and exclusion of the applicant from Australia. In particular, the Minister's evaluation of the risk to the Australian community was undertaken against the backdrop of an implicit assumption that any risk the applicant posed to the Australian community would be mitigated by the applicant's removal and exclusion from Australia: MR [49], [66]-[68]. Likewise, the Minister's evaluation of the expectations of the Australian community reflects an expectation that where there is an unacceptable risk that a non-citizen will engage in serious misconduct the government will not allow such a non-citizen to enter or remain in Australia (i.e., be excluded from Australia): MR [69]-[71]. These were all matters that informed the Minister's conclusion that cancelling the applicant's visa was in the national interest: MR [72]-[74]. 20 The Minister evaluated the impediments that the applicant may face if removed from Australia and returned to the United States. Her consideration of that subject is predicated on the assumption that the applicant will be residing in the United States. That is, he will not be able to return to and reside in Australia: MR [95]-[102]. 21 The Minister evaluated the strength, nature and duration of the applicant's ties to Australia. Within that subject the Minister considered the impact of a decision to cancel the visa on the applicant's wife. The Minister accepted that the applicant's wife may experience emotional, practical and (or) financial hardship as a result of a decision to cancel the visa. That conclusion, again, reflects an assumption that either the applicant's wife will continue residing in Australia without the applicant or be required to leave Australia herself and reside with the applicant in the United States: MR [79]-[82]. 22 In setting out her overall evaluation and conclusion as to why she decided to cancel the visa, the Minister emphasised that Australia had a low tolerance for criminal conduct of persons holding limited stay visas, that the community would expect that non-citizens who have committed serious criminal offences against children should not continue to hold a visa, and that the Australian community could be exposed to significant harm should the applicant re-offend in a similar manner: MR [106]-[107], [110]. The Minister also indicated that she had considered the risk posed to the Australian community by the applicant's 'continued presence in Australia' and that non-citizens such as the applicant 'should not generally be expected to remain in Australia': MR [108]-[109]. Again, this part of the reasons reflects an underlying assumption that the consequence of a decision to cancel the visa would be removal and exclusion of the applicant from Australia. 23 Having regard to the nature of the Minister's statement of reasons and reading them as a whole, in the context of s 501(3) and the purpose and object of the statutory scheme of which it forms a part, and in a fair and not unduly critical manner, no inference arises from the absence of an express reference to the special return criteria that the Minister has failed to take into account that a legal consequence of a decision to cancel the applicant's visa was that he would be removed and excluded from Australia. It is clear that in making her decision, the Minister understood and considered that the applicant would be removed and excluded indefinitely from Australia, and she considered such removal and exclusion was in the national interest. Further, there were no countervailing factors arising from that consequence that outweighed the national interest in the exercise of her discretion. 24 Otherwise, it is unnecessary to consider the question of materiality. It does not arise because no error has been demonstrated.

Disposition 25 The application for judicial review should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.