Tanielu v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 On the afternoon of the day upon which Mortimer J handed down judgment in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, the Minister for Immigration and Border Protection ("the Minister") used the power arising under s 501(3) of the Migration Act 1958 (Cth) ("the Act") to cancel the applicant's visa. In the present case, the applicant applies for the Minister's decision to cancel his visa to be set aside on the ground of jurisdictional error, pursuant to the jurisdiction given to this court by s 476A(1)(c) of the Act. That is to say, he invokes the jurisdiction referred to in s 75(v) of The Constitution, this being a matter in which a writ of prohibition is sought against an officer of the Commonwealth. 2 In the interests of expedition, I shall not rehearse the history of the applicant's circumstances prior to the making of the decision now under challenge. Those matters have been sufficiently set out in the judgment of Mortimer J referred to. 3 On 4 July 2014, the Minister's department supplied him with a minute, the stated purpose of which was to seek his decision on whether to cancel the applicant's visa under s 501(3)(b) of the Act. To the extent necessary, I shall refer to the terms of that minute in my reasons which follow. The Minister read and considered the minute, and reached the conclusions required by paras (c) and (d) of s 501(3), namely, that he reasonably suspected that the applicant did not pass the "character test", and that he was satisfied that the cancellation of the applicant's visa was in the national interest. The Minister then exercised the discretion for which the subsection provides, deciding that the visa should be cancelled. He provided and signed a statement of his reasons for reaching those conclusions, and for making that decision. 4 In the present case, the applicant does not challenge the legality of the Minister's conclusions with respect to the character test or the national interest. 5 The applicant's first ground of challenge has two limbs, namely, first, that the power under s 501(3) cannot be exercised at all unless the Minister considers that it is necessary to exercise the power "to prevent a person from remaining in the Australian community without first affording that person natural justice", and/or without considering whether to exercise the power under s 501(2), and secondly, that the actual ministerial exercise of the power in the applicant's case on 4 July 2014 was done for a purpose other than that for which the power was granted. 6 In support of the first of these limbs of the first ground, counsel for the applicant pointed to the identity between s 501(2)(a) and s 501(3)(c) of the Act. It was said that it could not have been the legislative intention that the decision whether to proceed under one provision rather than the other should be no more than a matter of the Minister's "whim", and that the procedural differences between the provisions should, as a matter of construction, inform how the Minister must proceed in a case like the present one, where it is evident that the person concerned does not pass the character test. It was said that the only such difference was the exclusion of the protection of the rules of natural justice under subs (3). It was said, therefore, that, as a matter of construction, the power under subs (3) could be exercised only where the Minister had first satisfied himself that the case was a sufficiently serious one to justify resort to that power rather than that arising under subs (2), that is to say, a sufficiently serious one to justify the exclusion of those rules. 7 With respect to the cancellation (as distinct from the refusal of a grant) of a visa, it is true that the procedural difference between subss (2) and (3) of s 501 is that, under the former, the power arises only after the Minister has given the person concerned the opportunity to contend that he or she passes the character test, while, under the latter, the power arises immediately upon the Minister having the necessary suspicion under para (c) and having reached the necessary state of satisfaction under para (d), the person's opportunity to make representations (such as it is - a subject to which I return below) then arising subsequently under s 501C. But the reason for this difference is that, under subs (3) of s 501, the Minister is satisfied that the cancellation of the person's visa is in the national interest. In a case which national interest considerations potentially arise, there is nothing in the Act, and it would be contrary to the scheme of these two subsections, for the power of the Minister even to address the matters required by subs (3) to be conditioned upon him or her first having considered, and rejected, the possibility of proceeding under subs (2). 8 Similarly, to propose that the Minister may not even embark upon a consideration of the national interest under s 501(3)(d) without first having asked the question whether the case was a sufficiently serious one to justify the exclusion of the rules of natural justice would be to turn the course of the inquiry required by the subsection on its head. What marks out a person's circumstances for consideration under subs (3) specifically is the potential for the national interest to be invoked. In considering that subject, the rules of natural justice do not apply: s 501(4). If the Minister reaches the state of satisfaction for which para (d) of subs (3) provides - and assuming, as is the case here, that character test questions are uncontroversial - he may proceed to make his decision without further reference to the person concerned. If the Minister does not reach that state of satisfaction, he may not exercise the power for which subs (3) provides. 9 In support of his submission that recourse to subs (3) was available only in cases of sufficient seriousness to justify the exclusion of the rules of natural justice such as would apply under subs (2), the applicant referred to the following passage in the Second Reading Speech for the Bill which introduced the relevant provisions into the Act in 1998: From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community. These people may be threatening violence or some other act of destruction or have a prior history of serious crime. In these emergency circumstances, the Minister, again acting personally, should have the power to act without notice and have them taken into detention. Once the visa is cancelled, the non-citizen will have a right to make a submission to the Minister as to why the cancellation should be revoked. Natural justice will apply in such cases. However, if they cannot satisfy the Minister that they pass the character test, they should be removed immediately. Parliament should be notified of the making of such decisions but the decisions should not be subject to merits review because of their national significance. The Minister is very accountable for his actions - to the Parliament, his colleagues, and to the people of Australia. I do not think that this passage supports the applicant's constructional case. While it explains the legislative purpose in the enactment of subs (3) in terms which differed from those of subs (2), at the point of considering whether the power under the former is limited by reference to some higher standard of seriousness than might be relevant in the general run of cases under the latter, the passage does no more than beg the question. As it seems to me, it is the Minister's view that the cancellation is in the national interest which marks out the point of departure from those cases and, once that view has been formed, the reason for invoking subs (3) is both self-evident and wholly within the intent of the legislation. 10 For the above reasons, the first limb of the applicant's first ground should be rejected. 11 As supported by submissions made on behalf of the applicant, the second limb of his first ground is little more than an elaboration on the consequences of the first, assuming it to be good. It was put that, if the Minister's power was limited as proposed in the first limb, the applicant's visa must have been cancelled "without power and/or for an improper purpose". In the circumstances, this limb of the ground too must be rejected. 12 The applicant's second ground has three limbs, the first of which is that the Minister's decision to cancel his visa was "affected by jurisdictional error in that the [Minister] failed to have regard to a relevant consideration, namely the legal consequences of his decision". The consequence referred to was what was said to be the futility of any representations the applicant might be minded to make under s 501C(3) of the Act. The only way in which those representations could make any difference to a person in the circumstances of the applicant was if the Minister became satisfied that the person did pass the character test. But such a person would not pass that test if he or she had a "substantial criminal record" (s 501(6)), and would be deemed to have such a record if he or she had been "sentenced to a term of imprisonment of 12 months or more" (s 501(7)(c)). The applicant had been sentenced to such a term. The opportunity to make a representation under s 501C was, therefore, a "futility" for him, and this was a "relevant consideration" without regard to which the Minister could not exercise the power arising under s 501(3). 13 The main authority upon which the applicant relied in this regard is Re Patterson; Ex parte Taylor (2001) 207 CLR 391. That too was a case in which it was self-evident that the person concerned did not pass the character test. In a departmental minute to the decision-maker, it was noted that, as soon as any decision under s 501(3) was served upon the person, he would be detained. The minute continued (207 CLR at 455 [193]): He must then be given notice as soon as practicable thereafter of the decision and of relevant information and an opportunity to make representations seeking revocation of the decision, see s 501C(3) and (4). (Emphasis added.) Gummow and Hayne JJ (with whom Gleeson CJ and Gaudron J relevantly agreed) said (207 CLR at 455 [196]): In the absence of any evidence providing a further explanation of the reasons, or the parts of the reasons, for the respondent making her cancellation decision of 30 June, it is to be taken that she exercised her discretion under s 501(3) to cancel the prosecutor's transitional (permanent) visa on an erroneous footing. This is that, if she did cancel the visa, the legislation required there then to be given to the prosecutor, in terms of par 14 of the minute, "an opportunity to make representations seeking revocation of [that] decision". The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3). On that footing, prohibition and certiorari properly lay. 14 From this passage, it may be seen that Taylor was not an instance of a decision-maker failing to have regard to a consideration which was essential to the valid exercise of the power in question. Rather, the jurisdictional error identified by Gummow and Hayne JJ was a "misconception of what the exercise of the statutory power entailed" and thus as not a "real" exercise of that power. I shall return to that aspect of the reasoning in Taylor below (in the context of the second limb of the applicant's second ground). For the moment, I confine myself to a consideration of the first limb as I have identified it. 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, 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. 16 The second limb of the applicant's second ground is that the Minister's decision was "affected by jurisdictional error in that the [Minister] misunderstood or misconceived his statutory duty". Here the applicant invoked Taylor directly. But, according to submissions made on behalf of the Minister, Taylor was to be distinguished on the basis that, in the present case, the departmental minute specifically adverted to the futility of the invitation for which s 501C(3)(b) provides. The applicant's rejoinder to that defence was to point to another difference between Taylor and the present case: in the present case it is not necessary to infer how the Minister had approached his task from the terms of the departmental minute, since the Minister expressed his own reasons for cancelling the applicant's visa in writing. Those reasons made no reference to the fact that any representations under s 501C(4) would inevitably be futile in the circumstances of the case. These positions adopted by the parties led to a debate about the significance of the departmental minute to the Minister's decision, specifically in the light of the Minister's own written reasons. 17 The minute was divided into parts, Part B being headed, "Use of your s 501(3) power". Some relevant statutory provisions were set out, and it was noted that the rules of natural justice did not apply to a decision made under that subsection. The minute continued: However, section 501C of the Act provides that, following a decision under subsection 501(3) to refuse or cancel a visa, the person who was the subject of the decision must be invited to make representations about possible revocation of the decision and that you may revoke the decision if the person satisfies you that they pass the character test. However such an invitation would be futile in Mr TANIELU's case, given that he is not in a position to satisfy you that he passes the character test. Part C was concerned with "the character test", Part D with "the national interest", and Part E with "the exercise of your discretion". 18 On the final page of the minute there was a heading, "Visa cancellation under subsection 501(3) of the Migration Act 1958 - Decision by the Minister for Immigration and Border Protection". The first paragraph appearing under this heading was: I have considered this issues paper including all of the attachments in relation to the possible cancellation of the Class TY, Subclass 444 Special Category (Temporary) visa, granted to Mr TANIELU. The Minister signed the minute at the foot of this final page. 19 If that were the end of the matter, clearly the present case should be distinguished from Taylor. However, that is not the end of the matter, since the Minister also signed a "statement of reasons" for his decision to cancel the applicant's visa. In the opening section of that statement, before the Minister turned to the character test, he said: By s 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 s 501(3). However pursuant to section 501C, following a decision under s 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be invited to make representations about possible revocation of the decision, noting that the person concerned will not be provided with "non-disclosable information" within the meaning of the Act. This passage in the Minister's reasons goes part of the way to acknowledging what had been put to him in the first of the extracts from the departmental minute referred to above, but omits the department's reference to the futility of the invitation required by s 501C(3)(b). In the limited terms set out in the Minister's reasons, the formula used does, in my opinion, suffer from the vice identified by Gummow and Hayne JJ in Taylor. Any distinction between that formula and the one held in Taylor to have involved a misconception of function is not such as should appeal to a court exercising a supervisory jurisdiction in a case such as the present. 20 Two general lines of argument were advanced on behalf of the Minister in support of his contention that, notwithstanding the terms of his reasons, Taylor should still be distinguished. The first pointed to the nature of the departmental advice given in Taylor: the focus was on distinguishing the power arising under s 501(2) of the Act from that arising under s 501(3). In this context, it was pointed out (by the Department in Taylor) that, unlike the former, the latter power did not involve pre-decisional natural justice, but the advice went on to imply that this distinction might be rendered the less significant because of the scope for the making of post-decisional representations under s 501C. In the present case, it was submitted on behalf of the Minister that Taylor involved a misconception of function where the very subject matter of the departmental minute was the relative features of the two subsections with respect to natural justice. Here, by contrast, there was no reference to subs (2), or to the Minister being required to make a choice as between that provision and subs (3). In his reasons, he simply adverted to one of the features of the single provision under which he was, in effect, being invited to act. 21 Apropos the principle recognised by Gummow and Hayne JJ in Taylor, I think the Minister's point involves a distinction without a difference. That principle is not dependant on the existence of a comparative exercise as between the two subsections of the kind that provided the factual setting for the judgment in Taylor. Rather, it speaks at the point where the decision-maker perceives the features of the power which he or she sets about exercising. The vice in the departmental minute in Taylor was that it gave the decision-maker to understand that the opportunity to make representations under s 501C would, on the uncontroversial facts of that case, be a real rather than a theoretical one. 22 The Minister's second line of argument is of more substance. It focussed on the departmental minute in the present case. That minute had been signed by the Minister. It must be inferred that he read it and understood it. As noted above, measured against the Taylor principle, the minute was unexceptionable. It was submitted on behalf of the Minister that he could not, therefore, have misconceived his function: he knew that the applicant could make representations under s 501C, but he also knew that they would be futile. In advancing this argument, counsel for the Minister invited me to find, in effect, that, despite having made no reference to futility in his reasons, their client well understood the true situation and the features of the section under which he was making his decision. 23 The difficulty with this argument is that it gives insufficient attention to an important aspect of what I have called the Taylor principle: it looks to the decision-maker's own conception of the power being exercised. In Taylor, it was necessary to infer that matter from the terms of the departmental minute because there were no written reasons, the assumption being that, where a decision-maker simply signs off on advice tendered to him or her, his or her reasons for acting are those set out in the advice. In the present case, by contrast, there is a record of the Minister's reasons. In these circumstances, the court should not speculate on what might have been his actual conception of the power he was exercising, beyond the terms of those reasons: Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd (1988) 78 ALR 466, 467. However the Minister was advised in the present case, his reasons demonstrate that his own conception of the relevant power was mistaken, in the way explained in Taylor. 24 For the above reasons, I cannot distinguish the present case from Taylor. I do, therefore, uphold the second limb of the applicant's second ground. 25 Under the third limb of his second ground, the applicant contends that the Minister failed to have regard to the circumstance that, under the "special return criteria" in Sch 5 to the Migration Regulations 1994 (Cth), a legal consequence of the Minister's decision was that the applicant "could never be granted a visa to return to Australia". That the decision did carry such a consequence was accepted by the Minister. It was submitted in response to the applicant, however, first, that this was not a matter which was required to be taken into account in the Peko-Wallsend sense, and secondly, that the Minister did proceed by reference to the assumption, silent though it may have been, that the decision which he was about to make would have permanent consequences for the applicant. 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 Refugee Convention, 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. 27 By contrast, the consequence upon which the applicant relies in the present case would be a practical reality only if he sought to return to Australia from New Zealand, the country of his nationality. That the immediate consequence of the Minister's decision would be the determination of the applicant's right to remain in Australia did, of course, require no elaboration. So too did the Minister take into account, in terms, the fact that his decision would make the applicant "subject to immigration detention". The applicant does not, and cannot, complain about the Minister's failure to take these consequences into account. The "consequences" to which he does refer would, therefore, become relevant when he, as a national of New Zealand residing there some time in the future, decided to apply again for a visa to enter Australia. To the extent that this might be regarded as a "consequence" of the Minister's decision, it does not have the legal proximity or the practical immediacy to that decision to justify the conclusion that, as a matter of law, the decision could not have been validly made without a consideration of it. 28 The regulation-making authority has chosen to make it a "special return criteri[on]" that the person seeking to re-enter Australia not have had a previous visa cancelled under s 501 because of the application of para (a) of subs (6) of that section. That circumstance does not, in my view, introduce itself into the exercise of the Minister's power under s 501 as something to which he or she must, for the valid exercise of that power, have regard. 29 For the above reasons, I do not regard this second limb of the applicant's second ground as coming within the jurisprudence established by NBMZ. In relevant respects, the ground must be rejected. 30 The applicant's third ground relates to the following passage in the Minister's statement of reasons: Alcohol consumption was a major factor in Mr TANIELU's criminal behaviour and he has advised that his personal circumstances prior to offending led him to consume too much alcohol. The court made no reference to Mr TANIELU's risk of re-offending or rehabilitation prospects, but stated that 'there seems to have been no prior history of offences of this kind - and, thankfully, no subsequent history of offences of this particular kind.' I have noted Mr TANIELU's remorse for his behaviour and resolve not to re-offend. I have also given weight to his good behaviour in prison and his participation in a transition program and Narcotics Anonymous to address his problems with alcohol. I accept that Mr TANIELU has support in the community from his wife, her family and friends. He has a good employment record in Australia and there is no reason to believe he will be unable to find employment on his release. Notwithstanding Mr TANIELU's remorse for his offending, the support of his wife and others, and his good behaviour in prison, I find that there remains a risk, albeit a low one, that he will re-offend in Australia. I find that even a low risk of re-offending is unacceptable, given the great harm that will flow to a member of the Australian community if Mr TANIELU were to re-offend in a similar manner. It was submitted on behalf of the applicant that the Minister's conclusion that "there remains a risk, albeit a low one, that he will re-offend in Australia" was infected by jurisdictional error because there was "no evidence" to support it. 31 The "no evidence" ground as a basis for discerning jurisdictional error in an administrative decision is not entirely unproblematic. Bromberg J and I recently had cause to consider the matter in Australian Postal Corporation v D'Rozario (2014) 222 FCR 303, 318-325 [50]-[67] and 332-334 [106]-[117]. For reasons there stated, the law applied in this court has now probably reached the position where it should be accepted that, for the decision-maker to make a finding that is a critical step in his or her ultimate conclusion without any evidence to support it would normally amount to jurisdictional error. The question, therefore, is whether the Minister's conclusion in the present case with regard to the low risk of the applicant re-offending was such a finding. 32 In my view it was not. The finding was not on a subject which conditioned the exercise of the Minister's power, nor was it otherwise required by the Act. It was a matter which the Minister, following the advice which he received in the departmental minute, thought appropriate for consideration in the exercise of his discretion. There is, of course, no way of knowing whether the finding was "critical" in the sense that the Minister would not have made the decision but for it. In a case such as the present, the court cannot, absent clear indications in the reasons of the decision-maker, rank the importance of considerations taken into account in the exercise of a broad discretion. It is true that the Minister said that "even a low risk of re-offending is unacceptable", from which it may be inferred that a risk of this order would have been sufficient, of itself, to cause the Minister to exercise the power for which s 501(3) provides. But the court is not concerned with the place which a finding of this nature would have occupied in other reasons made in other circumstances. It is concerned with the place which this finding occupies in the reasons which the Minister actually made in the applicant's case. In that context, I am not persuaded that the finding was "critical" in the ultimate conclusion reached by the Minister. 33 I would also reject the applicant's contention that there was "no evidence" of the applicant presenting a low risk of re-offending. Following the format of the applicant's submissions, I have to date treated the Minister's relevant observation as a "finding", but it was not, of course, a finding of primary fact. Rather, it was an evaluation of the likelihood of something happening in the future. So much inheres in the notion of "risk". In her reasons of 4 July 2014, Mortimer J said ([2014] FCA 673 at [9]): On 19 July 2013, the applicant was convicted in the District Court of Queensland of a series of sexual offences, including nine counts of carnal knowledge of a child under 16 years of age and one count of indecent treatment of a child under 16 relating to one victim and one count of indecent treatment of a child under 16 relating to a second victim. These offences occurred between June 2010 and May 2011. Counsel for the Minister submitted that the contention that the Minister had "no evidence" upon which to base his assessment that there was a low risk of re-offending was, in the light of these facts, untenable. I agree. 34 An alternative argument advanced by the applicant with respect to this third ground - that the Minister could not, without jurisdictional error, have reached any conclusion on the question of risk of re-offending unless he was in possession of the opinion of a professional with specialised expertise in the relevant area - derives no support from any of the decided cases and is intuitively at odds with longstanding principles of administrative law. It too should be rejected. 35 For the above reasons, the applicant's third ground must be rejected. 36 The applicant's fourth ground is that the Minister's decision "was not based on up to date information and/or was unreasonable". As supported in argument, this ground involved a blend of two administrative law principles that have been mentioned in the cases. The first was that, where a decision-maker is bound by the statute under which the decision is made to have regard to a particular circumstance, it may involve jurisdictional error if he or she does not take account of the most recent information available to him or her in respect of that circumstance: Peko-Wallsend, 162 CLR at 44-45. The second was that, if a decision depends upon particular facts, if there is in the possession of the decision-maker or reasonably available to him or her information which would contradict, qualify or bear upon the facts as found by him or her, and if he or she declines, or possibly even fails, to look at that information, the decision may be infected with jurisdictional error as on the unreasonableness ground, but as a matter of process rather than of substance: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 170; Luu v Renevier (1989) 91 ALR 39, 49-50; Tickner v Bropho (1993) 40 FCR 183, 198; Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, 321. 37 These principles are distinct. For the first, the reference point is what the decision-maker is required take into account for there to be a valid exercise of the power in question. If, in the course of exercising a discretion, the decision-maker relies upon some other circumstance or feature of the case in hand - ie "other" in the sense that it is not required to be taken into account - this principle says nothing about the decision-maker's obligation to take account of the most recent information available to him or her. For the second principle, the reference point is what the decision-maker has in fact taken into account, even if not required to do so by the statute. Here there is no general obligation of the Peko-Wallsend kind, but, depending on the facts, the decision-maker's failure to avail himself or herself of information which is readily to hand may justify the conclusion that the decision is unreasonable in the manner of its making in the Prasad sense. 38 The case presented by the applicant here involves a Prasad question rather than a Peko-Wallsend one. The information which it is said that the Minister failed to take into account was not, and was not related to, a circumstance or consideration which he was required to take into account for there to be a valid exercise of the power under s 501(3) of the Act. 39 The information which, in the submission of the applicant, was reasonably available to the Minister but not considered fell into two categories. The first was information which the applicant himself had obtained in the days following his return to immigration detention after having been released pursuant to the orders made by Mortimer J. Much of that was in the nature of supporting letters and testimonials by friends, family members and medical and teaching professionals, for instance. The common feature of this information was that it did not exist when the Minister made his decision under s 501(3), but came into existence very soon thereafter. The submission made on behalf of the applicant was that, if the applicant was able to gather together information of this kind so easily, it would have been readily available to the Minister had he only sought it, and his failure to do so was, therefore unreasonable and vitiating in the jurisdictional sense. 40 That submission cannot be accepted. The principle invoked by the applicant is concerned with information which existed at the time when the decision in question was made, and perhaps only with information which was immediately to hand, or at least readily available. The principle cannot be pressed into service to impose upon the decision-maker the obligation, in effect, to seek out information, particularly information which would have to be brought into existence as a usable artefact before it could be considered by him or her. 41 The second was information contained in the applicant's affidavit in the proceeding before Mortimer J. Because that affidavit was not mentioned either by the Minister in his reasons or in the departmental minute, it should be inferred that the Minister "failed to have regard to it". This was said to be a Peko-Wallsend kind of error. However, as I have noted above, Peko-Wallsend has nothing to say about the present case. The applicant does not challenge the Minister's conclusion with respect to the two matters that must be considered under s 501(3), the character test and the national interest, his challenge being confined to the general discretion which arises thereafter. There is nothing in the Act that obliged the Minister to base his decision upon a consideration of the discretionary circumstances to which the applicant referred in his earlier affidavit. He would, of course, have been obliged to give the applicant the opportunity to put discretionary matters before him if the rules of natural justice applied, but that is not the present case. 42 I would also accept submissions made on behalf of the Minister that the applicant has not established, as a matter of evidence, that the Minister did not consider the information which had been contained in the applicant's earlier affidavit. The affidavit itself was mentioned neither in the departmental minute nor in the Minister's reasons, but I would not infer from the circumstances that such discretionary factors as may have been the subject of evidence in that affidavit were not canvassed in the minute, and considered by the Minister. In their written outline, counsel for the Minister referred to some that were. In the administrative law context, it was not, in my view, sufficient for the applicant to point to the absence of any reference to the affidavit as such in the minute and the reasons as a basis for establishing jurisdictional error on the part of the Minister. 43 For the above reasons, the applicant's fourth ground must be rejected. 44 However, because I have upheld the applicant's second ground in one respect, he has made good his case for certiorari. There is no reason to grant prohibition. I was informed by counsel that there were no reasons why costs should not follow the event in this proceeding. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.