Consideration
132 The principles that govern judicial review of discretionary powers conferred under statute are far from new. There have been significant refinements of the principles (following Li as to how unreasonableness operates as a relevant criterion) but their contemporary shape already may be recognised in the observations of Gibbs J (as he then was) in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119:
It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.
133 In this case the Minister submits that the breadth of the discretion conferred on the Minister by s 501(1) stands in the way of a reviewing court proceeding on the basis that a particular factor is a matter that he is required to consider.
134 The Respondent cites Minister for Immigration and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 (Huynh) and Muggeridge v Minister for Immigration and Border Protection [2017] FCA 730 as authority for the proposition that in exercising his discretion there is no requirement that the Minister give consideration to any factor specific to a visa applicant.
135 I note that the Full Court in Muggeridge (Charlesworth J, Flick and Perry JJ concurring) allowed an appeal from the decision at first instance relied upon by the Minister. In doing so Charlesworth J referred to the apparent, but as yet unresolved tension between Huynh and Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 at least in so far as Huynh stands for the proposition now submitted for by the Minister.
136 At [26] Charlesworth J cited the following cases as relevant to that question: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [33]; Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22] (Allsop CJ, Flick and Griffiths JJ); NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [27];SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [18]; Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; (2015) 235 FCR 88 at [37]-[38]; Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [64] and AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451 at [49]-[54]. The Full Court stated (at [31]) it would leave the resolution of that tension for a case in which the outcome depended on it - holding that whether or not the Minister had been obliged to proceed on a particular basis, having committed himself to do so in a way that was acutely fact dependent, his reasons then having demonstrated a want of logic, his decision must be set aside (at [55]-[56]).
137 This case also can be decided without resolving those tensions or expressing a view as to whether, in light of subsequent decisions, Huynh remains binding on a single judge of this Court.
138 Coker establishes that in an appropriate case ignoring significant relevant material can justify a reviewing Court drawing an inference that the decision maker constructively failed to undertake his or her statutory task.
139 As a matter of comity I should apply the ratio of Coker unless I am persuaded that his Honour was plainly wrong.
140 In Coker, Moshinsky J had to decide whether the Assistant Minister had failed to have regard to a report of the Parole Board which had been given to him on the applicant's behalf. If the Assistant Minister had ignored it his Honour then had to decide whether in consequence it could be concluded that the Assistant Minister failed to carry out his statutory task under s 501CA of the Act.
141 The power under s 501CA is not the same as conferred by s 501 but both confer a wide discretion. In my opinion their difference does not reduce the authority of Moshinsky J's reasoning regarding how judicial review principles may be engaged when some fact or matter which has been asserted to be of significance has been ignored by a decision maker exercising a very wide discretion.
142 In Coker, despite there having been a statement in the Assistant Minister's reasons that he had considered all of the applicant's representations his Honour found (at [52]) that the Assistant Minister had not in fact considered the report of the Parole Board:
In my view, the applicant has established that the Assistant Minister failed to consider the submissions and information provided by Holding Redlich about the Parole Board's decision to release the applicant on parole. The Statement of Reasons did not refer to the submissions or information concerning the decision of the Parole Board. Given the potential relevance of this material to the issue of the applicant's risk to the Australian community, an issue discussed at [38]-[42] of the Statement of Reasons, one would expect it to have been referred to if taken into account. Thus the failure to refer to the material at all supports an inference that it was overlooked.
143 His Honour did not then reason that the Assistant Minister's failure to refer to that potentially relevant material required the Court to conclude that the decision maker had fallen into jurisdictional error. His Honour's reasoning was more nuanced. It first addressed why he was not prepared to approach the question in that way:
46. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf), McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) cited (at [82]) the following passage from Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
47. In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT), Robertson J (at [97]), after setting out the above passage, explained: "Thus merely to ignore 'relevant material' does not establish jurisdictional error." His Honour continued: "This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation." This passage from Robertson J's judgment in SZRKT was relied on in the written submissions of both the applicant and the Minister in the present proceeding.
144 At [49] Moshinsky J referred to the reasoning of Kenny, Griffiths and Mortimer JJ in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS).
145 In MZYTS the Full Court had held that the failure of a tribunal to have regard to relevant material could give rise to an implication that the tribunal had constructively failed to exercise its jurisdiction to form the state of satisfaction required by the Act.
146 The like failure of the Assistant Minister to have regard to the report of the Parole Board was held by Moshinsky J to have justified a similar inference being drawn (at [55]-[57]):
55 Further, in my view, the submission concerning the Parole Board decision was "worthy of serious consideration" and was "seriously advanced" on behalf of the applicant (to pick up the language of Jenkinson J in Dennis Willcox). The submission formed a prominent part of Holding Redlich's letter dated 27 February 2015, as indicated by the passages set out at [23] above. The Parole Board is a government body exercising statutory functions under the Corrective Services Act and part of the criminal justice system of Queensland. Even without reference to Ministerial guidelines pertaining to the Parole Board (and there is no suggestion that these were before the Assistant Minister), it would be assumed that the safety of the community would be a priority, if not the highest priority, in deciding whether or not to grant a parole order. Thus, the decision of the Parole Board and the submissions based on it were worthy of serious consideration (even in the absence of reasons for the Parole Board's decision). Of course, the weight to be given to the submissions and information about the Parole Board's decision in the circumstances was a matter for the Assistant Minister.
56 For the same reasons, the information concerning the Parole Board decision, put forward as part of the applicant's representations, was "critical and relevant" to the applicant's case (to pick up the language of Tracey J in Picard at [42]).
57 In these circumstances, consistently with the authorities discussed at [43] and [46]-[49] above, the failure of the Assistant Minister to consider the submissions and information concerning the Parole Board's decision to release the applicant on parole constituted a constructive failure to exercise jurisdiction, a denial of procedural fairness and a failure to carry out the statutory task. In particular, the failure to consider submissions and information (put forward as part of the applicant's representations) that were "worthy of serious consideration" and that were "critical and relevant" to the applicant's case involved a failure to perform the task conferred on the decision-maker by the legislation.
147 In the circumstances, the Assistant Minister was held to have constructively failed to exercise his jurisdiction.
148 I take the ratio of Coker to be that while a decision-maker's unexplained or unreasoned failure to take account of a significant factor objectively relevant to his or her task will not of itself constitute a jurisdictional error, such a failure can, in an appropriate case, justify a Court drawing an inference that a decision maker has constructively failed to exercise his or her jurisdiction. Understood in that way the observations of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (see above at [143]) do not need to be reconciled with the outcome in Coker - there is no relevant inconsistency.
149 Equally on that premise there is no relevant inconsistency between that reasoning and which of Huynh or Moana should be accepted. Accordingly there is no basis for me to find that Moshinsky J was plainly wrong.
150 I am also unpersuaded by the First Respondent's Supplementary Submissions at [3] that Coker ought to be distinguished as involving a different legal issue.
151 Counsel for the Minister submits that the facts of present case are very different to those considered in Coker, submitting at [4] that, in contrast to the Assistant Minister failing to even refer to the Parole Board's decision in the present case, "the Minister did consider, and discussed in depth, the psychologist's report (eg at [60]-[65]; [77])."
152 That submission is entirely unpersuasive.
153 All that paragraphs [60]-[65] (under the heading "Psychologist report") do is to provide a summary of the contents of Ms Roman's report. Those paragraphs involve no discussion at all, let alone discussion in depth, of any aspect of her report.
154 Nothing is even "noted" by the Minister in respect of Ms Roman's report in those paragraphs. No findings are recorded.
155 Flick J held in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 (Buadromo) at [42] that if there was a failure to give proper, genuine and realistic consideration to a factor relevant to the task asserted to have been undertaken by the Minister, the decision would be flawed by jurisdictional error.
156 The Minister's reasons, in so far as they concern whether Mr Sabharwal passed or failed the character test, conclude at [69].
157 Having found that Mr Sabharwal did not pass the character test, the second half of the Minister's reasons then address whether he ought to exercise his discretion to refuse Mr Sabharwal a visa.
158 The Minister's discussion of that subject commences at [70]. It concludes at [107].
159 There is no reference to, let alone discussion in depth or analysis of any aspect of Ms Roman's report recorded in any of those 37 paragraphs, including [77].
160 Nowhere in the Minister's reasons is there a mention of any possible relevance of Ms Roman's report to the statutory discretion the Minister was exercising.
161 I reject that there is a relevant difference because, unlike in Coker, the Applicant had made no submissions about his mental health; "he simply sent the psychologist's report to the Minister and said no more about it" ("First Respondent's Supplementary Submission" at [4]).
162 Such submissions are not to be considered in the abstract but rather, as in Muggeridge and Coker, having regard to what actually occurred.
163 In the actual circumstances applying, given the Tribunal had found itself unable to make findings in the absence of such material, and had remitted Mr Sabharwal's case back to the Department with recommendations as referred to earlier in these reasons, the suggestion that the Applicant needed to explain to the Minister why Ms Roman's report had been provided before it was required to be treated by the Minister as of significance borders on the absurd.
164 In the light of what actually occurred including the history of Mr Sabharwal's matter in the Tribunal, the circumstances in which Ms Roman's report came to be produced and the absence of any mention of her report by the Minister in his reasons from [70] onwards, I am satisfied that the Applicant has established that notwithstanding the assertion at [101] that consideration had been given to "all other evidence available to [him], including information provided by or on behalf of Mr SABHARWAL", the Minister did not consider Ms Roman's report when exercising his discretion under s 501(1).
165 The Minister's failure to refer to Ms Roman's report in his reasons from [70] onwards given (a) the circumstances in which that report came into existence; and (b) that if Ms Roman's conclusions were to be accepted then they were relevant to the statutory task the Minister stated he was undertaking supports the inference that it was overlooked.
166 If I am wrong that it was overlooked, I am in any event satisfied that it was not considered in the sense that proper, genuine and realistic attention was not given to it: Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 341 ALR 179 at [43]; Buchwald at [72]; Buadromo.
167 I am satisfied that the Minister's unexplained or unreasoned failure to take account of a significant factor objectively relevant to his statutory task, while not of itself a jurisdictional error, in the light of the Minister's statement that he had taken all of the material provided by the Applicant into account, in this case justifies me drawing an inference that the Minister constructively failed to exercise his or her jurisdiction.
168 While the discretion is broad it must be exercised for the purposes for which the power is granted. As Kirby and Callinan JJ stated in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at 503-504:
[W]here a discretion is conferred by statute, it must be exercised in accordance with the language by which it is conferred and to achieve the purposes for which the power has been granted. To talk of "absolute" judicial discretions, at least where such discretions are conferred by an Australian statute, involves a contradiction in terms.
While those remarks relate to discretions conferred in relation to the exercise of judicial power, they apply equally to administrative decision makers.
169 Ground 2 is made out.
170 As Grounds 1B(i) and 2 have been made out, the decision of the Respondent to refuse the Applicant the visa he seeks must be quashed and the Minister ordered to reconsider the Applicant's visa application according to law.
171 The Applicant should have his costs as agreed or as taxed.
I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.