E.3. Consideration
38 There is a superficial attraction to the applicant's submissions, not least because of the ostensibly discrete manner in which the Minister reasoned that the community protection consideration and the community expectations consideration weighed heavily in favour of cancellation in his statement of reasons. The Minister made those findings at SR [55] (with respect to the community protection consideration) and SR [58] (with respect to the community expectations consideration), without any consideration or acknowledgment that cancellation of the applicant's visa would not result in the removal of the applicant from the Australian community, either by the applicant being placed in immigration detention or his removal from Australia. Rather, the reasoning proceeded on the basis that cancellation of the applicant's visa was necessary for and would relevantly enhance the protection of the community and it would be consistent with community expectations that persons convicted of serious harm should not remain in the community.
39 On balance, however, for the reasons that follow, I am not persuaded that the Minister's reliance on his community protection and community expectations findings to conclude that the cancellation of the applicant's visa was in the national interest was irrational or illogical so as to give rise to jurisdictional error.
40 In JNMQ, Jackman J did not accept a contention raised by the applicant that it was illogical for the Minister to attribute significant weight to the protection of the Australian community in deciding to set aside a decision of the Tribunal and to refuse to grant a visa because the concomitant outcome of the refusal decision would be that the applicant would not be taken into detention but rather would continue to reside in the community by reason of NZYQ. His Honour concluded at [27]:
As the Minister submits, it was logical and rational for the Minister to give significant weight to the protection of the Australian community in assessing whether the national interest favoured the applicant being granted an indefinite right to remain in Australia. As the Minister submits, not only does a permanent visa entitle its holder to an indefinite right to remain in Australia, but permanent residency is one of the criteria for a non-citizen seeking conferral of Australian citizenship: s 22(1)(c) of the Australian Citizenship Act 2007 (Cth). Thus, the question for the Minister's consideration when assessing the protection of the Australian community was not simply whether the applicant would be removed from the community upon the refusal of the visa. This is reflected in the Minister's reasons at [53], in which the Minister referred to the applicant having applied for a Class CD Subclass 851 Resolution of Status Visa for the purpose of remaining permanently in Australia, and stated that he had considered the risk of harm to the Australian community in the context of the permanent stay period and specific purposes of the visa application.
41 The applicant sought to distinguish JNMQ on two principal bases. First, the applicant in JNMQ had applied for a Safe Haven Visa, but as explained below (at [44]) this had been converted into an application for a Resolution of Status Visa (which is a permanent visa), whereas the applicant's Safe Haven Visa was a temporary visa which only gave him the right to apply for a Resolution of Status Visa. Second, in JNMQ the Minister explicitly considered the risk of harm to the Australian community in the context of the permanent stay period for the specific purposes of the visa application, whereas the Minister did not do so in the present case.
42 The effect of the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023 (Cth) (Transition Regulations) is that if a person (a) has an unresolved application on the "TPV/SHEV transition day" (14 February 2023) for a Subclass 785 (Temporary Protection) visa (Temporary Protection Visa) or a Safe Haven Visa, the application will automatically be converted to an application for a Resolution of Status Visa, or (b) holds a Temporary Protection Visa or a Safe Haven Visa that has not been subsequently cancelled, they are able to make an application for a Resolution of Status Visa. A Resolution of Status Visa is a permanent visa.
43 As the holder of a Safe Haven Visa who was in Australia but not in immigration clearance, the applicant had been entitled to apply for a Resolution of Status Visa, had his Safe Haven Visa not been cancelled, because the applicant first entered Australia before the "TPV/SHEV transition day" and the applicant had not previously made a valid application for a Temporary Protection Visa or a Safe Haven Visa that had not been finally determined: see Item 4 in cl 1127AA(3) in Sch 1 to the Migration Regulations. The TPV/SHEV transition day was 14 February 2023.
44 In contrast, the applicant in JNMQ fell into the first category. As at 14 February 2023, his application for a Safe Haven Visa was unresolved, and therefore the application was taken to be, and always to have been, an application for a Resolution of Status Visa: JNMQ at [7].
45 In my view, the distinction is not sufficiently material to distinguish Jackman J's reasoning in JNMQ at [27]. As his Honour there identified, "the question for the Minister's consideration when assessing the protection of the Australian community was not simply whether the applicant would be removed from the community upon the refusal of the visa".
46 Further, contrary to the applicant's submissions, none of the reasoning in BNGP, Taulahi or PLQF stands for or supports the proposition that the Minister in exercising a discretion under s 501 of the Act may only have regard to legal consequences that are "inevitable or certain" or that are the direct and immediate consequence of their decision. Rather, the jurisdictional error identified by Perry J (with whom Bromwich and Kennett JJ relevantly agreed) in BNGP at [101] was a failure to have regard to a legal consequence that was inevitable or certain. Similarly, the jurisdictional error identified by the Full Court in Taulahi at [81]-[86] (Kenny, Flick and Griffiths JJ) (as cited by Perram J in PLQF at [29]) was a failure by the Minister to take into account the direct and immediate legal consequence of their decision.
47 The Minister's reasons, however, did not extend to a concern that it was necessary to cancel the applicant's Safe Haven Visa in order to prevent him from applying for a Resolution of Status Visa and thereby obtaining permanent residency. As the Full Court explained in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [47] (Allsop CJ, Robertson and Mortimer JJ):
The "intelligible justification" must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v R (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not.
48 Nevertheless, I am satisfied that the Minister did provide an intelligible justification for his conclusion on the national interest consideration when his reasoning with respect to the community protection consideration and the community expectations consideration is read in conjunction with his reasons at SR [70]-[71].
49 It is well established that an administrative decision maker's reasons must be read as a whole and not with an eye finely attuned for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Decision makers typically review the whole of the evidence before them, and consider all of the evidence before them before writing anything: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [14] (Gleeson CJ). The expression of a conclusion by an administrative decision maker in a particular sequence does not necessarily indicate that they failed to consider and have regard to the evidence before them as a whole: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43]-[44] (Nicholas, Yates and Griffiths JJ).
50 Any consideration of the rationality of the Minister's community protection and community expectations findings cannot be divorced from and considered independently of the Minister's recognition at SR [69], when considering the legal consequences of the decision, that the cancellation of the applicant's visa, by reason of the decision of the High Court in NZYQ, would not lead to the immediate removal of the applicant from the community and would lead to the following consequences, noted at SR [70]-[71]:
I am aware that if a cancellation decision is made under s 501BA, [the applicant] will not be taken into detention. He will continue to reside in the community. I will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department.
I am also aware that if a cancellation decision is made under s501BA there would be significant restrictions on [the applicant's] ability to apply for another visa. In particular, I understand that [the applicant] would be prevented by s48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s48B, that s48A of the Act does not apply to him). Any application for a visa other than a protection visa would be subject to s501E of the Act, which would apply to [the applicant] as a result of a cancellation decision under s501BA, with the effect that his visa would remain cancelled under s501. This would mean that, without leaving the migration zone, he would not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), for which he could only apply in response to an invitation. I have given this consideration minor weight.
51 Read in context, it is plain that the reference to the consideration given "minor weight" is the consideration that if the applicant's Safe Haven Visa was cancelled the applicant would not be able to apply for any visa other than a Bridging R (Class WR) visa.
52 The Minister's reasoning at SR [70]-[71] makes plain that he appreciated that the applicant would remain in the community but on a different visa and subject to the imposition of conditions following advice from the Department of Home Affairs and that the applicant's ability to apply for alternative visas would be materially reduced. Relatedly in JNMQ, the Minister had set aside a decision of the Tribunal and refused to grant the applicant a Resolution of Status Visa and then deferred consideration of the type of visa to be granted to the applicant "following further advice from the Department": JNMQ at [22(b)].
53 The applicant submitted that where the Minister has provided reasons in relation to the community protection consideration and community expectations consideration, and did not refer to the matters raised in SR [70]-[71] in those reasons, it should not be inferred that he had regard to those matters in addressing those considerations, citing the passage from Singh set out above at [47].
54 I accept as submitted by the applicant that the Minister's reasons at SR [70]-[71] were part of his consideration of the legal consequences of his decision, and followed his findings that the community protection consideration and community expectations consideration weighed in favour of cancellation. I also accept as submitted by the applicant that these findings were made without any reference to the prospect of the applicant remaining in the community following cancellation or the circumstances considered by the Minister at SR [71].
55 I am not persuaded, however, that this has the necessary consequence that the Minister's satisfaction that it was in the national interest to cancel the applicant's Safe Haven Visa was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. The applicant's offending was objectively serious and logically raised serious potential concerns for the protection of the community and community expectations with respect to the cancellation of a visa. On any view it was open to the Minister to conclude that these considerations were sufficient to support a finding that it was in the national interest to support a cancellation of the applicant's Safe Haven Visa. At the same time, the Minister recognised that the legal consequences of the cancellation decision, given NZYQ, was that the applicant, at least for the foreseeable future, would likely remain in the Australian community.
56 The consideration by the Minister of the legal consequences of a cancellation decision was directed at both Australia's international refoulement obligations (at SR [60]-[67]) and the practical implications of a cancellation decision given the legal effect of NZYQ (at SR [68]-[71]). Moreover, protection of the community and community expectations are not absolute concepts that require or dictate the immediate removal or detention of an applicant in order for them to be engaged or otherwise addressed.
57 The Minister's conclusion that it was in the national interest that the applicant's Safe Haven Visa be cancelled was necessarily an evaluative exercise. In undertaking that exercise the Minister weighed and had regard to the community protection consideration, the community expectations consideration and the legal consequences of a cancellation decision, as made plain by the following reasoning by the Minister at SR [72]-[76]:
Conclusion on national interest considerations
In deciding whether I am satisfied that it is in the national interest to cancel [the applicant's] Class XE Subclass 790 Safe Haven Enterprise visa, I am required to make an evaluative judgement. I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national interest being in large part a political question.
In the specific case of [the applicant] I have considered the nature and seriousness of criminal conduct of which he was convicted of, namely intentionally sexually touch child >=10yrs &<16 yrs. Despite finding the likelihood of [the applicant] reoffending to be low, I have found the nature of this conduct to be very serious and place significant weight on this.
I find that significant weight should also be afforded to the Government's views about the expectations of the community towards a finding that the national interest is enlivened in [the applicant's] case.
I am aware that if a cancellation decision is made under s 501BA, [the applicant] will not be taken into detention, and he will continue to reside in the community.
Having regard to all of the above, I conclude that the use of my discretionary power to cancel [the applicant's] Class XE Subclass 790 Safe Haven Enterprise visa is in the national interest.
58 I do not accept that the decision by the Minister to acknowledge (at SR [70]) that the legal consequences of a cancellation decision would be that the applicant would not be taken into detention or removed from the country in his consideration of the legal consequences of the decision rather than in his consideration of the community protection consideration (at SR [29]-[55]) and the community expectations consideration (at SR [56]-[59]) renders his earlier discrete consideration of those considerations illogical or irrational. Here the alleged illogicality and irrationality was a failure to have regard to the fact that the applicant would remain in the Australian community notwithstanding the cancellation decision. Once the Minister's reasons are read as a whole, including his conclusion on the national interest consideration, it is readily apparent that he was acutely aware and had regard to the fact that the applicant would remain in the Australian community for the foreseeable future but not on a Safe Haven Visa. Rather, as the Minister stated at SR [70], he would determine the type of visa to be issued to the applicant and the conditions to be imposed on that visa after further advice from the Department of Home Affairs.