GROUND TWO
74 This ground is expressed as follows:
2. The Minister in the exercise of his residuary statutory discretion unlawfully failed to have regard to the statutory and/or legal consequences of his decision and acted unreasonably and the Minister failed to have regard to the statutory and legal consequences of visa cancellation under section 501 (3) as opposed to section 501 (1) and section 501 (2) of the Act:
2. 1. The Minister had a discretion to cancel the applicant's visa pursuant to section 501(1), section 501(2) and section 501(3) of the Act
2.2 The Minister was obliged to consider that if the Minister exercised the discretion to cancel the applicant's visa pursuant to section 501(1) or section 501(2) the applicant would be afforded natural justice;
2.3 The Minister was obliged to consider that if the Minister exercised the discretion to cancel the applicant's visa pursuant to section 501(3) the applicant would be denied natural justice
2.4 The Minister was not informed of and did not have regard to the matters outlined in 2.1 and 2.2 above.
2.5 The Minister failed to weigh in the balance the statutory consequence of proceeding under section 501(3) of the Act as opposed to proceeding under section 501(1) or 501(2) of the Act.
75 The "statutory consequence" referred to in [2.5] of this ground is the same as the "no discretion consequence" discussed at [16] of these reasons. I will deal with that issue first.
76 In Roach, Perry J identified the adverse consequences that may be visited upon a visa holder whose visa is cancelled pursuant to s 501(3) of the Act, rather than pursuant to s 501(1) or s 501(2). Her Honour defined the consequences as follows (at [93]):
(1) First, the Minister may (relevantly) refuse a visa application under s 501(3) on character grounds without notice and therefore without affording the applicant procedural fairness (the no natural justice consequence). In the exercise of this power the Minister has a discretion not to refuse the visa application despite finding that the character test is not met and that it is in the national interest to refuse the visa.
(2) Secondly, the Minister has no discretion under s 501C(4) to revoke a decision under s 501(3) if, after receiving representations, she or he remains of the view that the non-citizen fails the character test and, as a result, at no point is the non-citizen given an opportunity to be heard on the exercise of discretion determined adversely to her or him in the refusal decision, in contrast to the alternative process prescribed by ss 501(1) or (2) of the Act (the no discretion consequences). The right to make representations in support of revocation pursuant to an invitation under s 501C(3) therefore ameliorates only in part the lack of procedural fairness afforded at the initial stage of the decision-making process set out in s 501(3). Representations made by the non-citizen at the revocation stage can bear only on the question of whether or not she or he passes the character test.
77 Perry J concluded (at [113]) that the Minister must, in exercising the power under s 501(3) of the Act, have regard to the second of those consequences. Her Honour determined that the Full Court's reasoning in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (NBMZ) both supported and required that conclusion:
It follows that, applying the reasoning in NBMZ, I agree with the applicant that there is an obligation upon the Minister to have regard to the legal consequences prescribed by the Act where the power under s 501(3) is exercised in deciding whether or not to cancel or refuse a visa under that provision as opposed to s 501(1) or (2). Specifically, when it comes to the exercise of residual discretion under s 501(3), the Minister must, in my view, weigh in the balance the 'no discretion consequences' of proceeding under s 501(3). This is not in any way to dictate the outcome of that exercise of discretion; the obligation is only to consider, with such consideration being a mandatory relevant consideration (see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 (Mason J) (Peko-Wallsend)).
78 In NBMZ the Full Court held that the Minister erred by failing to take into account, in refusing to grant a visa, the legal consequence that the visa holder would remain in immigration detention indefinitely.
79 The same question arising for determination before Perry J in Roach had been previously considered and determined by Jessup J in Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154 (Tanielu). His Honour arrived at the opposite conclusion to that arrived at by Perry J (at [15]):
That limb invokes the ground of judicial review identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39:
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR. 363, 375; CREEDNZ Inc. v. Governor-General (1981) I N.Z.L.R. 172, 183, 196-197; Ashby v. Minister of Immigration [1981] I N.Z.L.R. 222, 225, 230, 232-233.
In my view, in exercising the discretion arising under s 501(3), the Minister is not, by the terms of the Act or otherwise, bound to take into account the circumstance that the opportunity to make representations under s 501C(4) would be futile, if that is the situation in the case at hand. The s 501(3) discretion would, in my view, be validly exercised if the Minister gave no thought to what realistic opportunity would arise for the particular visa-holder under s 501C(4). Section 501(3) itself does not require it, and, although every broad discretion must be exercised consistently with the objects of the Act, there is nothing which requires every statutory possibility or potential consequence to be part of the decision-making process.
80 His Honour then went on to deal with a further ground of review which contended that the Minister in that case had failed to take into account a legal consequence that the applicant in question "could never be granted a visa to return to Australia". In that context, his Honour said (at [26]):
In presently relevant respects, the applicant relied upon the judgment of the Full Court in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, where it was held that a decision to refuse to grant a protection visa under s 501(1) in the course of which no consideration was given to the reality that the person concerned would thereupon be subject to indefinite detention (because the nation from which he had fled refused to accept him back) was thereby infected by jurisdictional error in the Peko-Wallsend sense. The present case is, however, a far cry from NBMZ. It was not there held that each and every consequence of a decision under s 501 had to be placed on the scales for the contribution it might potentially make to the exercise of the Minister's discretion. The case was concerned with a very specific situation, one which involved Australia's obligations under the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, specifically its non-refoulement obligations. As I read their Honours' reasons, it was critical that the direct and immediate practical consequence of the Minister's decision under s 501 was that the person concerned would be in indefinite detention.
81 Counsel for Mr Stevens submitted that the reasoning of Jessup J in Tanielu is to be properly regarded as obiter. I do not agree. In my opinion, the question of whether the "no discretion consequence" was a consideration to which the Minister must have regard in the exercise of the power under s 501(3) arose directly in the matter before his Honour, and his Honour's reasoning as to the effect of the Full Court's judgment in NBMZ forms a part of his Honour's consideration of all of the legal consequences of the decision under review in that case.
82 It appears that the decision of Jessup J in Tanielu was not brought to the attention of Perry J by either party in Roach. As a consequence, the decision in Roach does not address the question of whether the judgment in Tanielu was plainly wrong.
83 In the circumstances, it is appropriate that I follow the earlier decision of Jessup J. I am not of the view that his Honour's decision is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89. The contention in [2.5] of the grounds on this application is not established for that reason.
84 I would, in any event, independently reason to the same conclusions arrived at by Jessup J in Tanielu at [26] (in relation to the effect of NBMZ) and at [15] (on the proper construction of s 501(3) of the Act). His Honour's conclusions are, in my opinion, consistent with the different criteria conditioning the exercise of the powers conferred under s 501(1), s 501(2) and s 501(3) of the Act.
85 It is not correct to say that a "no discretion consequence" befalls every person whose visa is cancelled under s 501(3) of the Act. The consequence only befalls a person who is unable, on a subsequent revocation request, to satisfy the Minister that he or she passes the character test for the purposes of s 501C(4). Once again, it is to be remembered that in exercising the power under s 501(3) of the Act, the Minister need only reasonably suspect that the visa holder does not pass the character test, that the Minister is under no obligation to afford the visa holder an opportunity to be heard, and that the Minister's reasonable suspicion may be founded upon assumptions of fact and law that are later discovered to be mistaken: see my observations at [14] above. It follows that at the time of the original decision, the Minister will be under no obligation to conclude whether or not any revocation request made by the affected person under s 501C of the Act would be "futile". The implication of a mandatory consideration of the kind contended for by the applicant would, in my opinion, require the Minister to actively speculate that the visa holder, if afforded an opportunity to be heard, will be unable to persuade the Minister to a different position. Nothing in Peko-Wallsend supports the implication of a mandatory consideration of that particular kind.
86 If I am wrong in the conclusions I have expressed in [83] to [85] above, I would find in any event that the Minister did in fact have regard to the "no discretion consequence" in accordance with the requirement expressed by Perry J in Roach.
87 The Minister stated at [3] of the Reasons:
Under subsection 501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection 501(3). However, pursuant to section 501C(3), following a decision under subsection 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be notified of the decision and given information relevant to it (other than 'non-disclosable information') and invited to make representations about possible revocation of the decision. Case law confirms that I am not required to disclose, under section 501C(3), information that is protected by section 503A. By subsection 501C(4), if the person makes representations in accordance with the invitation and satisfies me that they pass the character test, I may revoke the cancellation decision. However, because Mr STEVENS has received a prior sentence of 12 months or more imprisonment, he has a substantial criminal record as provided by s501(7)(c) and objectively fails the character test under paragraph 501(6)(a), any revocation request he makes could not succeed.
88 Counsel for Mr Stevens acknowledged in oral submissions that this paragraph correctly summarises the "no discretion consequence" for the purposes of this ground of review. It is contended, however, that the mere identification of the consequence in the introductory portion of the Reasons is insufficient. It is submitted that the structure of the Reasons supports an inference that the Minister failed to weigh in the balance the relevant statutory consequence at the stage of exercising the residual discretion.
89 The phrase "residual discretion" should be employed with some care in this context. There is one discretionary power. Although the preconditions for the exercise of the power must be satisfied before the decision to cancel a visa may be made under s 501(3), it is, in my opinion, artificial to use the language of a "residual discretion" to suggest that there exists a requirement that the Minister mentally move through a series of separate mental steps in a strictly mandated stages. The language of a "residual discretion" has been conveniently adopted in judicial decision-making so as to enable separate analysis of those matters that precondition the exercise of a power and those matters that do not. However, there exists a danger of elevating the parlance of judicial decisions into a rigid and ordered structure in which an administrative decision-maker must think and act. Where, as here, the subject matter of the power is one involving a complex evaluation of countervailing considerations, it is safe to read the reasons for the exercise of the power against an assumption that all matters referred to in the expression of the written reasons have been taken into account in arriving at the final outcome.
90 In the present case, the Reasons (at [3]) demonstrate that the Minister had regard to the "no discretion consequence" of proceeding under s 501(3) of the Act. There is no reason in language or logic to draw the conclusion that the consequence (at least as predicted by the Minister at Reasons [3]) was not weighed in the final balance. I can conceive of no reason why the Minister would refer to the "no discretion consequence" anywhere in the Reasons if not for the purpose of confirming that the predicted consequence was a matter taken into account in the exercise of his discretion.
91 Subparagraph [2.5] of the grounds is not made out.
92 Subparagraphs [2.1] to [2.4] of the grounds raise a separate issue. It is contended that the circumstance that the rules of natural justice do not apply to the exercise of the power under s 501(3) of the Act is a statutory consequence that the Minister was required to consider. As enlarged upon in oral submissions, the ground raises an argument that the Reasons disclose no logical or intelligible reason for the Minister proceeding to cancel Mr Stevens' visa without according him natural justice (under s 501(3)), rather than proceeding under s 501(2). I should add that the reference in ground 2 to s 501(1) of the Act was acknowledged by Counsel to be erroneous, that being a provision concerned only with the refusal to grant a visa to a person.
93 In support of this ground, Counsel for Mr Stevens sought to rely on four affidavits which, it was said, would have constituted the material Mr Stevens could have and would have put before the Minister had the Minister proceeded under s 501(2) of the Act and afforded him an opportunity to be heard. It was submitted that the Minister's "decision" to proceed under s 501(3) rather than under s 501(2) worked a practical injustice upon Mr Stevens similar to that discussed by the High Court in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam) and that the affidavits bore upon that discrete question.
94 I ruled that the affidavits should not be read. The matters to be determined under this ground are different to those determined in Lam. In that case, the High Court held that the rules of procedural fairness will not be breached by a decision-maker's departure (without notice) from a previously foreshadowed procedure where no practical injustice is suffered as a result of the departure. The decision concerns the practical content of the rules of procedural fairness in a given statutory context where the rules of procedural fairness are acknowledged to apply.
95 The ground before me raises different questions. The Act itself contemplates that a visa holder may put before the Minister relevant material weighing against the cancellation of his or her visa under s 501(2) of the Act, not only in relation to the issue of whether the person passes the character test but also on the ultimate question of whether the visa should be cancelled. The questions to be determined are, first, whether the Minister was required to consider that circumstance when proceeding instead under s 501(3) and, second, whether the Minister was required to give reasons expressing or evidencing (in the applicant's words) an "intelligible justification" for proceeding down one statutory route rather than the other. The actual content of the material that Mr Stevens could have and would have provided to the Minister had the Minister proceeded under s 501(2) of the Act does not assist the Court to answer either of those questions.
96 In my opinion, the submissions made on behalf of Mr Stevens do not pay sufficient regard to the important differences between s 501(2) and s 501(3) of the Act identified by Jessup J in Tanielu. The evident purpose of s 501(3) of the Act is to empower the Minister to cancel the visa of a person where it is in the national interest to do so, without first forming a positive state of satisfaction about whether the person passes the character test or not. The statute itself provides the justification for the Minister proceeding to exercise the power under s 501(3) of the Act in preference to the power conferred under s 501(2).
97 The absence of any express explanation given in the Reasons for proceeding under s 501(3) of the Act rather than under s 501(2) does not demonstrate that the Minister did not correctly appreciate the statutory context in which the cancellation decision was to be made: see NBMZ at [142]. It is clear on the face of the Reasons that the Minister appreciated that the decision to cancel Mr Stevens' visa was made "without notice". It is also clear on the face of the Reasons that the Minister considered that the criterion in s 501(3)(d) had been engaged. The Minister was under no obligation explain why he did not proceed under an alternative provision that did not contain the same preconditioning criteria.
98 Ground 2 is not made out.