reasoning
37 To consider the grounds of each application it is sufficient to assume that each of the applicants is correct in claiming they are stateless. That is, although the weight of the present evidence on the issue presently favours each of those applicants in that assertion, it is not necessary for the resolution of the applications that a definitive finding of fact be made on the issue.
38 Ignoring relevant material or relying on irrelevant material, of which the High Court has spoken in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]-[82] and in Craig v South Australia (1995) 184 CLR 163 at 179, arises only where the decision-maker disregards or takes account of some matter in the circumstances where the statute or other instrument conferring the relevant power requires that the particular matter be taken into account or ignored as a precondition of the existence of any authority to make a decision in the circumstances of the particular case: Craig at 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
39 Where a discretion is unconfined by the (express) terms of a statute, the Court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act: Peko-Wallsend Ltd at 40 (Mason J).
40 The power which the former Minister exercised to cancel the applicants' visas was that contained in s 501(2) of the Act. That section does not explicitly require that the citizenship (if any) of the visa holder be taken into account as a prerequisite to the decision whether or not to cancel an applicant's visa. To the contrary, the section directs the mind of the decision-maker exercising the discretion to the issue of compliance with the character test. The section is centrally focussed on that precondition alone.
41 The applicants generally submit that nevertheless the s 501 should be understood in the context of the subject matter, scope and purpose of the Act as implicitly requiring the citizenship (if any) of an applicant to be taken into account as a prerequisite to exercise of the discretion to cancel an applicant's visa. This submission has not been supported by reference to any particular provisions. Section 4 sets out the objects of the Act. Object (4) provides that 'to advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act'. Consistently with the other objects, this is based on non-citizenship. The purpose of the Act as seen through its objects clause does nothing to aid the implication which the applicants urge. In my view, room for the implication is not to be found in the subject matter of s 501 nor is it supported by the purpose or other provisions of the Act. It is contrary to the principles set out above from Craig and from Peko-Wallsend.
42 That view is further supported by reference to Al-Kateb v Godwin (2004) 208 ALR 124. There Hayne J said at [227], Heydon J agreeing at [303], of the provisions of the Act concerned with immigration detention and removal (sections 189, 196 and 198):
'Removal is the purpose of the provisions, not repatriation or removal to a place. It follows, therefore, that stateless or not, absent some other restriction on the power to remove, a non-citizen may be removed to any place willing to receive that person.'
See also at [7] Gleeson CJ, dissenting), [33] (McHugh J, relevantly agreeing with Hayne J) and [295] and [301] (Callinan J).
43 The substance of the applicants' submissions are that the fact they were stateless was a relevant consideration going to the issue of the potential difficulty of removing each of them if their visas were cancelled. However, in the light of Al-Kateb,statelessness is not a consideration to be taken into account. Furthermore the statement by the Full Court in Djalic at [87] that there is nothing in the legislative structure to indicate that a potential difficulty in removing a non-citizen must be taken into account by the respondent when deciding whether or not to cancel a non-citizen's visa, is applicable here. While it is correct as the applicants contend that Djalic dealt with different factual circumstances, and that the potential difficulty of removing a non-citizen may be distinguished from a likely actual difficulty, the central point of the Full Court's reasoning in relation to the requirements of the legislative structure remain applicable here.
44 Further it cannot be inferred, as the applicants urge, that the former Minister made his decision 'on the basis' that each of the applicants was a citizen of Burma (Myanmar). The submission that the Embassy of Burma had told applicant VKAC that she was no longer a citizen was annexed to VKAC Issues Paper. Annexed to WAKW Issues paper was a report from the Western Australian Minister for Justice in which his citizenship was left blank although his birthplace was stated to be Burma. The observations in W157/00A of Branson J at [78] and Allsop J at [108] apply here:
'Having regard to the nature and content of the material that was apparently before the Minister at the time that he made his decision, I do not consider that it can be concluded either that he failed to read and consider that material or that the material was insufficient to enable him to take into account [the considerations in that case].' (Branson J)
'The universe of material available to the appellant in the issues document and attachments (taken together) contained sufficient information as to enable the appellant to identify the [considerations in that case] and to take them into account. He may well have done so, The difficulty is that in the absence of reasons for the decision, and in the light of the form of the issues document, it cannot be concluded that the appellant did not take into account the [considerations in that case]. Nor can it be concluded that he did so.'
(Allsop J)
45 Reliance by each of the applicants on the concept of irrelevant consideration does not take their argument any further. The presence of a factual misstatement does not of itself mean that the former Minister took into account an irrelevant consideration. For there to be an irrelevant consideration it would have to be shown that the Act required the particular matter to be ignored as a precondition of the exercise of the discretion. Further I agree with the respondent that in Lu the Court did not characterise the misstatement of the sentences as taking into account the relevant consideration; rather the Court characterised the misstatement as resulting in the failure to take into account a relevant consideration being 'an accurate statement of [the appellant's] criminal record'.