Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-10-27|Before: Collier J

Background 8 Mr Tereva was born on 12 September 1963 in New Zealand. He came to Australia with his family when he was 16 years old, and has lived in Australia ever since. He held an Absorbed Person visa (visa) within the meaning of s 34 of the Migration Act 1958 (Cth) (Migration Act). 9 It is not in dispute that Mr Tereva had a lengthy criminal history in Australia, commencing shortly after he had attained his majority. The offences for which he has been convicted involved stealing, possession of suspected stolen property, unlawful assault, breaking and entering a dwelling with intent, various dishonesty offences, unlawful use of a motor vehicle, wilful and unlawful damage to property, breaching bail, mistreatment of an animal, breaches of domestic and family violence protection orders, dishonest application of another's property, driving while being disqualified, and driving a motor vehicle while having an excess concentration of alcohol in his blood. 10 In 2015 Mr Tereva's visa was cancelled, however the cancellation of the visa at that time was revoked by the Minister's delegate. 11 In 2020 Mr Tereva was convicted in the Magistrates Court of Queensland of driving a motor vehicle while disqualified and while having an excess blood alcohol level. He was sentenced to a term of imprisonment of at least 12 months, part of which was to be served in custody. 12 On 6 March 2020 Mr Tereva's visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Migration Act. On 20 October 2020 the delegate made a decision under s 501CA of the Migration Act not to revoke the cancellation decision. 13 Mr Tereva applied to the Administrative Appeals Tribunal (Tribunal) seeking a review of the decision of 20 October 2020. The Tribunal set aside the delegate's decision, and substituted a decision that the cancellation of Mr Tereva's visa be revoked. In so deciding the Tribunal found, materially: 41. In this unusual case, the circumstances of the most recent offending assume particular importance in the weighing of my discretion. Mr Tereva has, no doubt, a very long criminal record but I have concluded that the risk of his reoffending is very low, and I point again to the years since his visa was last cancelled where he had not engaged in any criminal conduct. The most recent criminal conduct in which he has engaged occurred in very unusual circumstances. As I have indicated, I believe I should take into account the circumstances of that offending as a factor which properly informs my evaluation of the likelihood of his reoffending. The lack of moral turpitude in Mr Tereva's most recent offending is a relevant factor in my opinion. When I combine that with the difficulties that could be caused to Mr Tereva's elderly parents were he to depart and with his own interest in living within an established family unit, I believe this is a case where the discretion to revoke cancellation ought to be exercised. 42. I wish to make very clear that if Mr Tereva had driven himself to the social gathering in December 2019, consumed alcohol, and then begun the journey home, I would have viewed his behaviour in a very different light, and I would most probably have affirmed the decision under review. As I have said, however, that is not this case. There was no decision ever taken by Mr Tereva to drive except the decision he took in circumstances he did not anticipate, by which time his judgment had been substantially impaired by alcohol. In that regard, I note that the consumption of alcohol features frequently at Australian social gatherings and that there was nothing legally wrong or morally reprehensible in Mr Tereva's consumption of alcohol at a social gathering where he did not intend to drive himself home. 14 As a consequence of the Tribunal's decision, Mr Tereva's visa was reinstated. 15 Subsequently on 3 March 2021 the Minister set aside the Tribunal's decision. Mr Tereva was informed of this decision by letter from the Department of Home Affairs dated 12 March 2021. It is this decision of the Minister which is the subject of the present proceedings.

Decision of the minister 16 Section 501BA of the Migration Act provides as follows: 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. 17 In his decision of 3 March 2021 the Minister noted that, pursuant to s501BA(3), the rules of natural justice did not apply, and continued: 10. In this case, I chose to proceed without giving Mr TEREVA an opportunity to be heard before making my decision. I am cognisant that as a consequence, Mr TEREVA has not had the opportunity to advance reasons why an adverse decision should not be made, including because of the impact such a decision would have on him and his family. In this instance Mr TEREVA's family includes: his parents, siblings and other members of his extended family. 11. I have, however, given consideration to representations made by Mr TEREVA in relation to the original decision, and in the AAT proceedings which resulted in the AAT revoking the decision to cancel Mr TEREVA's visa. 18 The Minister noted that as a result of the sentence of imprisonment of 12 months received on 20 February 2020 in the Magistrates Court for convictions of Drink driving - exceed general alcohol limit and Driving under disqualification, Mr Tereva was deemed to have a substantial criminal record and did not pass the character test as defined in the Migration Act (at [15]). 19 The Minister then turned to the question whether the cancellation of Mr Tereva's visa was in the national interest. The Minister referred to the decision of the High Court in Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 at [40], and observed that "the national interest" was largely a political question. The Minister continued: 18. …To the same effect, a number of Federal Court decisions hold that the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to his satisfaction (provided that satisfaction is obtained reasonably). 19. I consider that matters of national interest include, amongst other things, the seriousness of the criminal and other serious conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of the criminal conduct. I also find that matters of national interest include a consideration of the risk of a person reoffending and the harm which could flow if such a risk eventuated. Also, in relation to the national interest I take into account the expectations of the Australian community. 20 Turning to the factors identified by the Minister as being of national interest, the Minister decided, in summary, as follows. 21 In relation to criminal conduct the Minister commenced his analysis by observing: 20. I consider that Mr TEREVA has a lengthy criminal history with convictions dating back to 1981. I acknowledge that during that history there have been several long periods without offending. I also acknowledge that the most prominent type of his offending has been driving offences, in particular driving without legal authority, and that he has not caused any actual harm or damage in the course of those offences. However I am of the view that frequent and repeated driving unlawfully, despite being brought before the courts for such matters on many occasions, displays a disregard for the law and a failure to appreciate the importance3 of the system for regulating the use of roads and vehicles, which can pose a very serious potential risk to the community. 22 The Minister referred to various instances of convictions of Mr Tereva between 1990 and 2015, and concluded that his history of frequent and repeated offending must be considered serious (at [26]). The Minister examined Mr Tereva's conviction of 20 February 2020, and observed: 32. Given the number of Mr TEREVA's offences, I find that significant cost has been borne by the Australian community when his offending is considered cumulatively. I also find that while many of Mr TEREVA's offences are not individually very serious, cumulatively they impose a considerable burden on the community and, when viewed in totality, amount to serious offending. I find a pattern of breaches and contravention of judicial orders, including repeatedly driving whilst disqualified, shows Mr TEREVA's disrespect of the law, which I also take into account. 33. I also take into account that sentences imposed by the courts for offences are a further indication of the seriousness of the offending, noting that dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy. I note Mr TEREVA's most recent imprisonment of 12 months reflects the seriousness of his offending discussed above. 34. I note the comment of Mr TEREVA's representative that his most recent sentence of imprisonment for a driving offence was only imposed as a deterrent to him continuing such conduct… I acknowledge that there is some validity in this submission, but I consider that the sentence reflects the Court's view that Mr TEREVA's demonstrated disregard for the law is so persistent that only a custodial sentence will suffice to make him realise that his offending is serious… 35. I am cognisant that Mr TEREVA had appeared in court four times for D & FVP breach of order (Domestic and Family Violence orders) on 2 April 2004, 7 April 2004, 13 April 2004 and 13 October 2004; and one of the breaches resulted in a term of imprisonment of one month. I note there are no court documents available to ascertain whether there was any element of violence in this offending, but I accept that present information does not suggest that was the case. I also take into consideration the time that has passed without further offending of a similar nature. Nevertheless, I view any offending related to domestic violence, including court orders designed to prevent such violence, as serious. I note the sentence of one month imprisonment, which I take to indicate the judicial view of the seriousness of the offending. 36. I also take into account the AAT finding that Mr TEREVA has a considerable history of antisocial behaviour with an established tendency to reject the law. The sentences by the court reflect strongly Mr TEREVA's antisocial behaviour and his misconduct on the road. I agree with these finding [sic] and view this behaviour as serious conduct. 23 In relation to issue of risk to the Australian community, the Minister noted the submission by Mr Tereva that his offending was primarily minor traffic offences which did not cause harm to any members of the community, and that he had an extensive period of non-offending after he was warned by the Department in 2016. At [39] the Minister further noted the explanation for Mr Tereva's most recent driving offending, which explanation was accepted by the Tribunal. Referring to the Tribunal's view the Minister continued however: 41. With respect, I disagree with this assessment. I can understand that Mr TEREVA may have believed he was not subject to licence suspension at the time of the incident, but it was his responsibility to make sure of that before driving and I therefore do not accept that doing so was 'coincidental' - it was in fact a culpable error. 24 The Minister found at [43] that if, in future, Mr Tereva consumed alcohol at a time when he did not expect to drive, but circumstances changed, then once again Mr Tereva might not be capable of recognising his incapacity. The Minister at [44] also rejected the submission of Mr Tereva that he did not have an alcohol problem, on the basis that Mr Tereva was unable to judge when he was over the legal limit for driving and considered it acceptable to drive regardless, despite previously having been convicted of drink driving offences. 25 The Minister found at [46] that Mr Tereva's most recent offence (resulting in his 20 February 2020 conviction) was serious, not for the nature of the individual offence, but because it was a repetition of two types of driving offending about which he had received ample warning (but had nonetheless reoffended), and for which he had received a term of imprisonment of 12 months. 26 At [47] the Minister referred to Mr Tereva's assertion that his clean criminal record between 2016 and 2020 was evidence of his rehabilitation, but considered this assertion was refuted by Mr Tereva's latest offending, and that it was not the first time Mr Tereva had reoffended after having "breaks" in his criminal history. The Minister was not persuaded of rehabilitative efforts allegedly made by Mr Tereva (at [48]). 27 The Minister concluded that there was an ongoing likelihood that Mr Tereva would reoffend, and that further offending might result in physical harm to members of the Australian community (including catastrophic harm to road users). 28 The Minister said: 53. In sum, having regard to the above, including the nature and seriousness of his criminal history and the risk to the Australian community, were he to reoffend, I conclude that these matters are of such seriousness that it is in the national interest to cancel Mr TEREVA's visa. 29 In relation to the expectations of the Australian community, the Minister took into account the principle that the Australian community would expect that non-citizens who commit serious crimes in Australia can and should have their visa cancelled (at [54]). The Minister concluded at [55] that Mr Tereva had breached the trust of the Australian community with his convictions for driving, and that given the serious, recidivistic nature of the offending, the Australian community would expect that Mr Tereva should not hold a visa. 30 The Minister also observed that the exercise of the power under s 501BA of the Migration Act was discretionary, and therefore examined whether there were relevant considerations that might support not setting aside the original decision and cancelling Mr Tereva's visa, despite the Minister's satisfaction that Mr Tereva did not pass the character test and that cancellation was in the national interest. In this respect, in summary, the Minister found: In respect of the best interests of minor children, the Minister noted that Mr Tereva did not have any children who were minors. Although Mr Tereva listed six nieces and nephews as minors, the Minister concluded at [58] that the adverse impact on these children was likely to be limited, because Mr Tereva's limited role in their lives. In relation to ties to Australia, the Minister noted that Mr Tereva had arrived in Australia as a child of 16, and that the Australian community could afford a higher tolerance of criminal conduct in such circumstances. The Minister also took into account that Mr Tereva had been recognised as an Absorbed Person, signifying strong links with the Australian community. The Minister noted that Mr Tereva had family and social ties to Australia, with family in this country, and that he had lived with and cared for his parents since 2007. The Minister took into account the fact that Mr Tereva attended to his parents' needs, that he had a long employment history in Australia, and that he had made a positive contribution to the community for 27 years. The Minister noted the impediments Mr Tereva would face if he were removed from Australia, and returned to live in New Zealand without family support. The Minister noted the submission that without support from his parents and without employment and accommodation Mr Tereva might return to his old criminal behaviour such as stealing. The Minister observed however that the culture and society of New Zealand were broadly similar to that of Australia, and that Mr Tereva would not face any substantial cultural or work barriers to settlement in New Zealand. The Minister concluded as follows: 74. I am satisfied that Mr TEREVA does not pass the character [sic] because of the operation of, in this case, section 501(6)(a) with reference to s501(7)(c) of the Act. Further, I am satisfied that it is in the national interest to cancel Mr TEREVA's visa. 75. In considering whether or not to set aside the original decision and cancel Mr TEREVA's visa, I gave primary consideration to the best interests of Mr Tereva's nieces and nephyeew and have found that their best interests would be best served by not cancelling the visa. 76. I have also considered the risk posed to the Australian community by Mr TEREVA's continued presence in Australia, taking into account that he has committed a number of offences in Australia including those involving drink driving, for which he has received court dispositions including sentences of imprisonment of up to 12 months. 77. Mr TEREVA has committed serious crimes, including repeated drink driving and unauthorised driving, showing disregard of the law which is designed to protected [sic] road users. Mr TEREVA has an extensive history of offending causing great cost to the Australian community. Non-ciizens such as Mr TEREVA who commit such offences should not generally expect to be permitted to remain in Australia. 78. I find that the Australian community could be exposed to harm should Mr TEREVA reoffend in a similar fashion or continue to breach the law and judicial orders. I could not rule out the possibility of further criminal conduct by Mr TEREVA. The Australian community should not tolerate any risk of further harm. 79. On the other hand I have also considered the impact on family members in particular his elderly parents and friends. I have also considered the length of time Mr TEREVA has made a positive contribution to the Australian community and the hardship to be endured by his family, in particular his elderly parents and other family members. I have also considered the impediments he will face upon return to his home country, noting his long absence and lack of familial support in New Zealand. 80. I am cognisant that where harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel he visa. This is the case even applying a higher tolerance of criminal conduct or other serious conduct by Mr TEREVA, than I otherwise would, because he has lived in Australia for most of his life, or from a young age, arriving at the age of 16. 81. I consider that Mr TEREVA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above. 82. I find that that the above considerations favouring non-cancellation are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the decision of the Administrative Appeals Tribunal dated 12 January 2021, and cancel Mr TEREVA's Absorbed Person visa under s501BA of the Act.

Grounds of the PRESENT application 31 The applicant seeks the following relief: 1. In respect of the decision of the first respondent made 3 March 2021, orders for certiorari to quash that decision, prohibition directed to the first respondent to restrain his giving effect to that decision; 2. Orders in the nature of habeas corpus or by way of habeas corpus, to release the applicant from detention forthwith including by way of bail (in accordance with the Court's jurisdiction under s 476A(2) of the Migration Act 1958 (Cth) and s 33 of the Judiciary Act 1903). 3. To any extent necessary in order to give effect to the primary orders sought, a declaration that the decision made on 3 March 2021 to cancel the applicant's visa is null and void. 4. Such further or consequential orders as the Court considers appropriate. 5. The first respondent pay the applicant's costs and disbursements properly incurred, in accordance with Part 40 of Chapter 5 of the Federal Court Rules 2011. 32 The grounds relied upon by the applicant are: [Each of these grounds is an independent ground for judicial review and each is an independent and alternative basis for establishing jurisdictional error.] 1. The first respondent's discretion under s501BAof the Migration Act 1958 miscarried and/or was not properly exercised. 2. The first respondent did not properly understand the applicant's case. 3. The first respondent failed to properly apply and interpret s501BA of the Migration Act 1958 4. The first respondent's decision was unreasonable; 5. The first respondent took into account irrelevant considerations; 6. The first respondent failed to take relevant considerations into account; 7. There was insufficient evidence or no evidence to support various findings made by the respondent; 8. The respondent's decision was otherwise an improper exercise of power; 9. The respondent addressed the wrong question or questions in making the decision; 10. The respondent's decision involved an error of law; 11. Section 501BA(3) is not a valid enactment in that it violates or excessively interferes with the exercise and/or performance of the constitutional writs under section 75(v) of the Australian Constitution and if s501BA(3) is invalid then the first respondent's decision was infected with jurisdictional error by having failed to accord the applicant natural justice or procedural fairness and that failure was material. 33 Both parties filed detailed submissions in the present proceedings, and were represented by Counsel at the hearing. 34 Mr Johnson for the Minister submitted that there appeared to be three elements to the applicant's challenge to the Minister's decision. Those elements, which appear to me to be referable to specific grounds, are: (1) Misunderstanding of the national interest (referable to grounds 1, 2, 3, 5, 6, 7, 9 and 10 of the Originating Application); (2) Unreasonableness attaching to the exercise of the discretion by the Minister (grounds 4 and 8 of the Originating Application); and (3) The validity of s 501BA (3) of the Migration Act (ground 11 of the Originating Application). 35 Notwithstanding the separate the grounds in the application, I agree with the Minister's summation of the applicant's case and the three elements he identified.

National Interest 36 The Minister cancelled Mr Tereva's visa in circumstances where Mr Tereva failed the character test in the Migration Act (which failure was not in dispute), and where the Minister concluded that it was in the national interest to do so. The issue of national interest, and the Minister's understanding and application of that concept, formed a significant part of the case argued before this Court. 37 In particular the applicant submitted, in summary: The "national interest" question was comprehensively explored by Gaudron J in Re Patterson; Ex parte Taylor [2001] HCA 51, 207 CLR 391 at 418-419. As her Honour observed, where the same conduct is relied upon for both the purpose of the character test and the purpose of ascertaining the national interest, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned. The more draconian or severe the provision is, one would expect the higher the bar for determining what the national interest is. Although the sentence of the applicant following his conviction on 20 February 2020 was 12 months, the parole period fixed by the presiding magistrate meant that the actual term served was 4 months, which was at the lower end of the sentencing spectrum. As explained by the High Court in Graham v Minister for Immigration and Border Protection [2017] HCA 33 at [57], the concept of "national interest" is not unbounded. Although the Minister referred to the "national interest" at [16]-[19] of the reasons, beyond that the Minister did not grapple with the term. The Minister's reasoning at [51]-[53] indicated that the Minister set the bar too low in relation to the application of the "national interest" in Mr Tereva's case. If the applicant was such an imminent risk to the Australian community, the Minister ought to have detained the applicant with some speed, and not waited almost 2 months after the Tribunal's decision to overturn the Tribunal's decision. There is no evidence that the Minister personally read the Tribunal's decision. It is insufficient for the Minister to simply disagree with the Tribunal's decision as s 501BA requires more than mere disagreement. 38 As Gaudron J observed in Patterson at 418 [78], while national interest considerations were separate and distinct from the question whether or not a person passed the character test, matters which resulted in a person failing the character test may also provide the foundation for the Minister's satisfaction that it was in the national interests that that person's visa be cancelled. At 419 [79] her Honour observed that crimes or some of the crimes of which a person had been convicted may be of such a nature as to found a satisfaction that it was in the national interest to cancel the visa. To the extent that the same conduct was relied on for both purposes, there must be something in the nature or seriousness of the conduct, or the surrounding circumstances, to found a satisfaction that it was in the national interest to cancel the visa (419 [80]). 39 Justice Kirby in Patterson set the threshold higher, finding that the "national interest" was not enlivened where: 335. … There was no "emergency". Nor could the particular case of the prosecutor be regarded as involving a significant threat to the nation as a whole or the community of the nation. 40 In Graham v Minister for Immigration and Border Protection [2017] HCA 33, the plurality relevantly observed in respect of "national interest" (albeit in the context of s 501 of the Migration Act): 57. The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister's satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself". (footnotes omitted) 41 In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 the Full Court referred to the decision in Patterson and observed: 89. With respect to [the view of Kirby J], the bar of national interest does not seem to be set that high by the words of the Act which must be the primary guide to legislative intention. The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained "reasonably" - Re Patterson; Ex parte Taylor at 698 (Gummow and Hayne JJ, Gleeson CJ agreeing). Callinan J agreed with Kirby J that the constitutional writs do not entitle the judges to substitute for the satisfaction of the Minister the satisfaction of the judges (755). 42 More recently s 501BA of the Migration Act, and the issue of "national interest" in the context of that section, were examined by the Full Court of the Federal Court in Vargas v Minister for Home Affairs [2021] FCAFC 162. The facts of that case bear striking similarity to those in the proceedings before me, in that in Vargas: A delegate of the Minister cancelled Mr Vargas' visa pursuant to s 501(3A) of the Migration Act. It was not in dispute that Mr Vargas did not pass the character test in s 501(3A)(a)(i) of the Migration Act because of his imprisonment for a term of more than 12 months. Mr Vargas unsuccessfully sought revocation of that decision of the Minister. Mr Vargas sought review of that decision in the Tribunal. The Tribunal set aside the decision of the delegate and Mr Vargas' visa was reinstated. The Minister subsequently set aside the Tribunal's decision and cancelled Mr Vargas' visa pursuant to s 501BA(2) on the basis that cancellation of his visa was in the national interest. 43 In examining the concept of national interest the Full Court in Vargas observed: 58 It is important to understand how the power under s 501BA can be exercised. In Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350 at [57], Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said that the concept of the national interest in s 501(3)(d) (which is an analogue of s 501BA (2)(b)) 'although broad and evaluative, is not unbounded.' Their Honours said at [57]: ...And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself" [R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at 189, citing Sharp v Wakefield [1891] UKLawRpAC 8; [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158." (emphasis added) 59 As Rares J said (albeit forming the minority in the outcome) in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) FCR 636 at [13]: The power conferred on the Minister personally in s 501BA is exceptional. That is because the time at which he can exercise that power arises only after two previous decision-makers have each exercised separate powers under the Act. Those anterior powers were, first, to cancel the visa in question under s 501(3A), because a delegate of the Minister was satisfied both that the visa holder did not pass the character test (relevantly, in a case like the appellant's, because he or she had a substantial criminal record within the meaning of s 501(6)(a) and (7)) and that the cancellation was in the national interest, and, secondly, to revoke that cancellation under s 501CA(4), because another delegate or the Tribunal (see s 501BA (1)) was satisfied, after the non-citizen made representations in accordance with s 501CA, that the non-citizen passed the character test or there was another reason why the decision under s 501(3A) should have been revoked. Only in those circumstances can the Minister exercise his power to cancel the visa under s 501BA. 60 The Explanatory Memorandum accompanying the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) which, inter alia, introduced ss 501(3A) and 501BA, is instructive. The Explanatory Memorandum, at page 2, makes plain that the amendments were intended to 'strengthen the powers to ... cancel a visa on character grounds' and 'strengthen the Minister's personal powers to cancel a visa' on character grounds. It also states that the amendments were to: • enable the Minister to personally exercise an extraordinary power to set aside the decision of a review tribunal and substitute his or her own decision to cancel a visa; and • clarify that if the Minister exercises a personal power to cancel a visa, that decision is not merits reviewable. 61 The primary judge held, with respect, correctly, that the power under s 501BA fundamentally different from that which is exercised under s 501CA (Reasons at [51]). Section 501CA requires the Minister to invite representations from the applicant and, having received and considered those representations, for the Minister to be satisfied that the person passes the character test or that there is another reason why the decision should be revoked. There is no correlative requirement in s 501BA. To the contrary, as submitted by the Minister, s 501BA does not require the Minister to have regard to any particular matter in forming a view about the national interest under s 501BA(2)(b) or in exercising the discretion in s 501BA (2). As has been observed however in the discussion above in relation to Ground one, should the Minister discern that there is insufficient probative material before him or her, s 501BA(3) does not preclude the Minister from asking for further material. 62 Consequently, failing to consider material that was before the Tribunal during the revocation process (which at best was a permissive factor that bore upon the Minister's state of satisfaction under s 501BA(2)(b)) could not, without more, go to jurisdiction. In any event, as has been described at paras [37]-[41] of this judgment, it is apparent that the substance of the matters in the documents that were before the Tribunal was also before the Minister. There was no submission that the additional matters deposed to in Ms White's affidavit at 6-(i) were before the Tribunal. 63 In Chamoun, the Full Court said, at [81]: ...The construction of a mandatory and a discretionary power may be quite different, and in our opinion it clearly is in these circumstances. Further, an affected visa holder is given a full opportunity to persuade the Minister why a s 501(3A) cancellation should be revoked (see s 501CA(3) and (4)), whereas a person whose visa is cancelled under s 501(3) has no such opportunity. Instead, all such a person has is, in substance, a chance to correct a mistaken conclusion that she or he did not fail the character test - in reality, a highly unusual situation in the context of the exercises of these powers. 64 The same reasoning is apposite in construing s 501BA . 44 Turning now to the case before me, I find as follows. 45 First, the preponderance of authorities, including Graham, Patterson and Vargas, support the proposition that the discretion of the Minister in s 501BA is broad and evaluative. In other words, as explained in Madafferi, the question of what is or is not in the national interest has been entrusted to the Minister by the legislature to determine according to his or her satisfaction, provided that that determination is reasonable. I do not accept that, in order for the Minister to find that cancellation of a visa is in the national interest, the retention of the visa by the non-citizen must enliven some form of emergency, or involve a significant threat to the nation. 46 Second, as was explained in those same authorities, in considering whether it is in the national interest to cancel the visa, it is acceptable for the Minister to have regard to the same considerations as resulted in the failure of the character test on the part of the previous visa holder. However as Gaudron J explained in Patterson, there must be something in the nature or seriousness of the relevant conduct, or the surrounding circumstances, to found a satisfaction in the Minister that it is in the national interest to cancel the visa. 47 In this case I am satisfied that the Minister separately turned his mind to the question whether it was in the national interest to cancel Mr Tereva's visa. I do not accept the submission of the applicant that the Minister failed to successfully grapple with the concept, including specifically in respect of the applicant's case. In so stating, I particularly note: The specific acknowledgment by the Minister at [16] of the reasons for decision of the importance of the distinction between assessment of the national interest and the question of whether Mr Tereva passed the character test. The detailed examination by the Minister of Mr Tereva's history of offending, leading to the Minister's conclusion that there was an ongoing likelihood that Mr Tereva would reoffend in respect of drink-driving and unlicensed driving. The prospect that reoffending by Mr Tereva could result in physical harm to members of the Australian community, and catastrophic harm to road users. The view of the Minister that the sentence of 12 months imprisonment for Mr Tereva's most recent offence reflected the Magistrates Court's view of the seriousness of Mr Tereva's offending. The view of the Minister of the expectation of the Australian community, including his finding that Mr Tereva had breached the trust of the community. 48 Plainly, the Minister did "grapple" with the concept of national interest in reaching his decision. 49 Third, I note that the concept of "national interest" is not unbounded. However I am not persuaded that the Minister adopted "too low a bar" in concluding that the national interest warranted cancellation of Mr Tereva's visa. In my view this submission invites improper substitution by the Court of its view of the national interest over the view of the Minister (see Kirby J in Patterson at 502-503, Lander J in Maurangi v Bowen [2012] FCA 15 at [69]-[70]). 50 Further, and notwithstanding the tenor of Mr Tereva's submission that the nature of his most recent offending was trivial because he was assisting a neighbour in a manner which was unforeseen and coincidental, the fact remains that Mr Tereva was ordered by the Magistrates Court to serve a custodial sentence of 12 months (albeit with parole). It was open to the Minister to form the view that both the nature of Mr Tereva's offending and the sentence he received were serious. 51 I also note that, while there was a period elapsing between the decision of the Tribunal and the decision of the Minister, this of itself does not support a finding in favour of Mr Tereva referable to the national interest (or otherwise) in the retention of his visa. 52 Fourth, I do not accept the applicant's submission that there was no evidence before the Court that the Minister had read the Tribunal's decision. Rather, it is apparent by the repeated reference by the Minister to the Tribunal's reasons that the Minister had read it, and given it careful consideration. I note for example paras [14], [29], [30], [36], [40], [50], [55], [58], [63], [66], [73] of the Minister's reasons where the Minister specifically referred to aspects of the Tribunal's reasoning. 53 In my view the Minister properly understood the concept of national interest in the context of the powers in s 501BA. It was open to the Minister to find, as he did, that it was in the national interest for Mr Tereva's visa to be cancelled.

Unreasonableness attaching to the exercise of the discretion 54 The applicant submitted, in summary, that the decision of the Minister was unreasonable because: the decision was disproportionate; the Minister improperly allocated weight to some matters; and the question arose whether the Minister actually engaged with the facts and arguments advanced by the applicant. 55 It is common ground that the Minister was required to exercise the power in s501BA(2) of the Migration Act in a reasonable manner. 56 As was pointed out by the High Court in Minister for Home Affairs v DUA16 [2020] HCA 46, (referring to the earlier High Court decision in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541): 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". (footnotes omitted) 57 Similarly in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 the Full Court observed: 65. The ground of judicial review known as "legal reasonableness" derives from a statutory implication. The implication that a statutory power be exercised within the bounds of (legal) reasonableness arises through a common law presumption: ABT17 at [19]; Li at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ and [88] per Gageler JJ; SZVFW at [53] per Gageler J, [80] per Nettle and Gordon JJ and [131] per Edelman J. Where a statutory power is exercised in a manner that is legally unreasonable, the exercise of the power is beyond the jurisdiction conferred upon the repository of that power; that is, the repository committed a jurisdictional error: SZVFW at [51] per Gageler J and [80] per Nettle and Gordon JJ. There are different ways of formulating the expression of legal reasonableness. These include that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification (Li at [76]), and that reasonableness is the minimum to be expected of any reasonable repository of the power (SZVFW at [52] and [134]). It has been repeatedly emphasised that the test for unreasonableness is necessarily stringent (Li at [108]; SZVFW at [108]). In ABT17 at [19] Kiefel CJ, Bell, Gageler and Keane JJ said: "[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made" [quoting Li at [91]] such that "[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course"… 66. Importantly for present purposes, French CJ held in Li as follows (at [30]): The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. 58 Allocation of disproportionate weight to one factor over another in reaching a decision can be unreasonable. However, as French CJ explained in Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [76], to achieve such a result the decision itself must lack an evident and intelligible justification. 59 In this case the Minister's decision is not unreasonable simply because the applicant takes the view that more weight should have been attributed by the Minister to other factors. Specifically - the fact that the applicant - or the Tribunal for that matter - took the view that Mr Tereva's offending lacked moral turpitude does not mean that the Minister was required to take a similar view. It was open to the Minister to form the view that Mr Tereva's conduct was serious, particularly against a background of what the Minister considered to be historical disregard of the law by Mr Tereva. 60 Furthermore I reject the applicant's argument that the Minister failed to grapple with the applicant's arguments in support of the retention of his visa. While the Minister declined to give Mr Tereva an opportunity to be heard before reaching a decision, the following militate against the finding urged on me by the applicant: the detailed analysis by the Minister of the relevant facts, the Minister's reference throughout the reasons to the views of the Tribunal, and the specific engagement by the Minister with submissions of Mr Tereva's representative before the Tribunal in support of the retention of the visa (for example at [34], [39], [43], [44], [45], [47], [65], [66] and [69] of the Minister's reasons) 61 The Minister's view that cancelling Mr Tereva's visa was in the national interest had an evident and intelligible justification. It was open to the Minister to disagree with the view of the Tribunal, and reach a different conclusion.

The validity of s 501BA(3) of the Migration Act 62 In summary the applicant submitted: At no stage was Mr Tereva given an opportunity to make submissions to the Minister regarding the exercise of power under s 501BA; Section 501BA(3) is too wide; The rules of natural justice cannot be abolished to the extent that they no longer apply to an officer of the Commonwealth in the context of the constitutional writs under s75(v) of the Constitution; To the extent that s 501BA(3) purports to abolish the rules of natural justice - which is one aspect of the Minister's personal decision-making - the section purports to abolish a fundamental ground of judicial review and is therefore invalid. 63 The Minister submitted that this ground is misconceived. I agree. 64 Section 75(v) of the Constitution provides that in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth the High Court shall have original jurisdiction. Section 77 of the Constitution empowers the Parliament to make laws, inter alia, defining the jurisdiction of other federal Courts. In respect of original jurisdiction in the Federal Court, s 39B(1) of the Federal Court of Australia Act 1976 (Cth) mirrors the relief available in the High Court under s 75(v) of the Constitution. Plainly a decision by, for example, the Minister purportedly made under the Migration Act but which was affected by jurisdictional error would not be a decision under that legislation, and the remedies in s 75(v) of the Constitution would apply to such a decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2. 65 Requirements of procedural fairness are of vital importance in the administration of justice, however the availability of procedural fairness in particular cases is subject to an indication of intention to the contrary by the legislature. As Dixon CJ and Webb J observed in Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396; [1958] HCA 6: … [i]t is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v Wandsworth Board of Works Byles J said that a long course of authority established "that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature"…. The general principle has been restated in this Court to a citation of authority in Delta Properties Pty Ltd v Brisbane City Council. It is hardly necessary to add that its application to proceedings in the established courts is a matter of course. But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment. (emphasis added, footnotes omitted) 66 See also Annetts v McCann (1990) 170 CLR 596 at 598; [1990] HCA 57 and Commissioner of the Australian Federal Police v Luppino [2021] FCAFC 43 at [175]. 67 Turning now to the present proceedings, the plain language of s 501BA of the Migration Act excludes the operation of the rules of natural justice. As I have already noted, the Minister was cognisant of the possibility of giving Mr Tereva an opportunity to be heard before making his decision but chose not to. Certainly in such cases as Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12 the Full Court had no concerns about the validity of s 501BA, or the exclusion of obligation on the Minister to provide an applicant with an opportunity to make representations. In Ibrahim for example the Full Court relevantly observed: 22. As already noted, ss 501BA(3) and 501(5) stand in contrast with s 501CA(3).While s 501CA(3) requires that a person who may be the subject of an order under that section be given the opportunity to make representations to the Minister, each of ss 501BA(3) and 501(5) provide expressly that the rules of natural justice do not apply to the decisions to which they refer. 23. However, on its face, the effect of s 501BA(3) is only to remove any obligation on the Minister to apply the rules of natural justice when making a decision under subs (2). It does not oblige the Minister to make the decision without applying those rules. 26. ...[s 501BA (3)] 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 502BA(2)… (emphasis in original) 68 I also note comments of the Full Court in Vargas at [26]-[43], where (like the present case) the Minister demonstrated awareness of refusing the visa applicant an opportunity to be heard, but nonetheless made a decision on that basis. 69 I am not persuaded that the decision of the Minister to set aside the Tribunal's decision and cancel Mr Tereva's visa is affected by jurisdictional error, such as to enliven remedies under s 75(v). 70 Further, in my view the terms of s 75(v) of the Constitution do not invalidate s 501BA(3), as submitted by the applicant. The legislature has plainly excluded the operation of the rules of natural justice in respect of such decisions of the Minister, as it is empowered to do.

Habeas Corpus and bail 71 The applicant sought a writ of habeas corpus, submitting in summary: the onus was on the Minister to prove the applicant's detention remained lawful, and that there was no jurisdictional error; and notwithstanding the decision of the High Court of Australia in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, there has never been a suggestion that a court cannot grant bail in relation to habeas corpus in the particular circumstances of this case where: • it was the decision of the Minister which placed the applicant in detention, and • if that decision be incorrect, then at all material times he was a lawful non-citizen. 72 In my view these submissions are flawed, for the following reasons. 73 First, an evidential onus of proof rests on an applicant for habeas corpus. This issue in the context of administrative detention was recently examined by the Full Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223. As Allsop CJ explained in that case: 60. Modern cases have used the expression "prima facie" case: Dien at 418-419; Te v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 15; 204 ALR 497 at 512 [61] (French, Sackville and Hely JJ); and Yoxon v Secretary to the Department of Justice [2015] VSC 124; 50 VR 5 at 14-15 [38]. That expression of the matter should not, however, be seen to be a restriction or constriction upon the utility and efficacy of the remedy. It should be seen as another way of expressing the practical requirement for demonstrating reasonable justification or probable cause and for requiring the detainer to justify the detention by proving its lawful character. This can be seen by the way Kiefel CJ, Keane, Nettle and Edelman JJ put the matter in Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 at [39] (where Yoxon was approved), as the plaintiff carrying "at least an evidential burden of establishing that there is a reason to suppose that his detention has ceased to be lawful." It can also be seen by the way the Full Court (Black CJ, Sundberg and Weinberg JJ) expressed the matter in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 at 97 [176]: "... it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities." … Another way of expressing the question is whether the party seeking relief has shown a case fit to be considered by the court: Ex parte Khawaja [1984] AC at 111 (also cited in Yoxon at [39]). The necessity not to define precisely or overly finely in the abstract what has to be proved by the applicant can be appreciated if one recognises that in respect of some detentions (such as in Al Masri which concerned the possible exhaustion of the Constitutional purpose of the power to detain or, as here, where the detention is based on a mental state of the detainer required to be reasonably founded) the incidents or aspects of the lawfulness of the detention are within the knowledge and power of proof of the detainer… (emphasis added) 74 Second, as a result of the cancellation of his visa by the Minister, prima facie Mr Tereva was lawfully in administrative detention under the Migration Act. The Migration Act specifically provides for administrative detention of unlawful non-citizens prior to removal from Australia. Section 189(1) of the Migration Act provides: (1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. 75 Section 196 of the Migration Act provides: (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa. (4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. (4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful. (5) To avoid doubt, subsection (4) or (4A) applies: (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. (5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply. (6) This section has effect despite any other law. (7) In this section: "visa decision" means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa). 76 As I noted earlier in this judgment, the Minister accepted that, if the Court were to find that his decision was affected by jurisdictional error, the applicant would be immediately released from detention without the need for the Court to issue a writ of habeas corpus. 77 However, the grounds on which the applicant relied were not substantiated, and it follows that, in fact, the decision of the Minister was valid. As matters stand, it is clear that the applicant is in lawful administrative detention under the Migration Act. No basis has been advanced by the applicant for the grant of a writ of habeas corpus, or the grant of "bail", and such relief should be refused.

Conclusion 78 The relief sought by the applicant in his originating application is refused. 79 The interlocutory application is dismissed. 80 The Minister sought costs. In my view costs should follow the event: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.

Migration Amendment (Character and General Visa Cancellation) Act 2014(Cth)

Migration Act 1958(Cth)ss 189, 196, 501BA

COLLIER J 1 Before the Court are an Originating Application filed on 21 May 2021, and an interlocutory application filed on 15 October 2021. Both applications were filed by the applicant, Mr Tereva. 2 In the Originating Application Mr Tereva sought in summary orders to quash a decision of the Minister made 3 March 2021 and orders in the nature of habeas corpus. In the interlocutory application Mr Tereva sought, relevantly, that he be granted bail as ancillary to or as part of the proceedings for habeas corpus. Clearly this relief sought by Mr Tereva relates to the second prayer in the Originating Application, namely: 2. Orders in the nature of habeas corpus or by way of habeas corpus, to release the applicant from detention forthwith including by way of bail (in accordance with the Court's jurisdiction under s476A (2) of the Migration Act 1958 (Cth) and s33 of the Judiciary Act 1903). 3 I note that the interlocutory application was filed at 3.51pm on Friday 15 October 2021, being 4 days before the hearing. It is unclear when the Minister was served with the interlocutory application, although my Chambers were advised thereof at 4.15pm the same day. No separate submissions were filed concerning the interlocutory relief sought. 4 It is my understanding from submissions of Counsel for the applicant that the motivation of the applicant in filing the interlocutory application was to assist the Court, by facilitating the grant of interim relief in the event that the Court was persuaded of the existence of a prima facie case for the grant of habeas corpus (in terms of principles articulated by the High Court of Australia in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57); and in such a case, to allow the applicant to be released while the Court adequately considered the primary application. 5 While I note the apparent intention of the applicant, in my view: the interlocutory application simply duplicates relief already sought in the second prayer of the Originating Application; the filing of the interlocutory application so proximate to the substantive hearing, in the apparent absence of urgent reasons (beyond the substantive relief already sought) merely - and unnecessarily - complicates the issues before the Court. This is particularly so given the similarity of relief already sought and the lack of time and opportunity for the parties to file submissions referable to the interlocutory application; as a general proposition, if the Court was of the view that the applicant was improperly detained, the Court could grant habeas corpus anyway; and the Minister is correct in submitting that, if the applicant is entitled to relief by way of certiorari because of jurisdictional error in respect of the primary decision, the applicant would be entitled to be released from migration detention in any event, and "bail" would not be necessary. 6 Further, and in any event, I have significant doubts concerning the ability of the applicant to seek "bail" (an order sought in criminal proceedings) in the present administrative context, particularly in light of such authorities as Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562. No authority supporting the grant of "bail" was drawn to my attention by the applicant, in the interlocutory application itself or otherwise. 7 Having raised these issues with the parties at the hearing, I considered the proper way forward was for me to hear argument on and determine the substantive application, to which I will now turn.

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