Kirk v Minister for Immigration and Multicultural Affairs
[2025] FCA 150
•4 March 2025
FEDERAL COURT OF AUSTRALIA
Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150
File number: WAD 170 of 2024 Judgment of: CHARLESWORTH J Date of judgment: 4 March 2025 Catchwords: MIGRATION – judicial review of a decision of a Minister substituting a non-adverse decision of a Tribunal – power of the Minister not subject to rules of natural justice – decision amenable to review on legal unreasonableness grounds – whether Minister acted unreasonably by having regard to representations the applicant had previously made without affording the applicant an opportunity to be heard Legislation: Migration Act 1958 (Cth) ss 474, 501, 501AB, 501BA, 501CA Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
Craig v South Australia (1995) 184 CLR 163
Kirk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4858
Kruger v Commonwealth (1997) 190 CLR 1
LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Vargas v Minister for Home Affairs (2021) 286 FCR 387
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of hearing: 26 February 2025 Counsel for the Applicant: Mr B Tomasi Counsel for the Respondent: Ms C Taggart Solicitor for the Respondent: Australian Government Solicitor ORDERS
WAD 170 of 2024 BETWEEN: WILLIAM PAUL KIRK
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.The amended originating application is dismissed.
2.The applicant is to pay the respondent’s costs of and incidental to the amended originating application in a fixed sum to be determined by a Registrar of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
The applicant is a citizen of New Zealand. He has previously resided in Australia as the holder of a Class TY Subclass 444 Special Category (Temporary) visa issued under the Migration Act 1958 (Cth). By reason of his criminal offending, the applicant is a person who cannot pass the character test defined in s 501(6)(e) of the Act.
On 10 December 2021 a delegate of the now-named Minister for Immigration and Multicultural Affairs cancelled the visa on character grounds in the mandatory exercise of a power conferred by s 501(3A) of the Act (cancellation decision). In response to an invitation given under s 501CA(3), the applicant made representations in which he put forward reasons why the cancellation decision should be revoked. On 21 July 2022 a different delegate decided not to revoke the cancellation decision (non-revocation decision).
On 17 October 2022 the now-named Administrative Review Tribunal determined that the non-revocation decision should be set aside. It revoked the cancellation decision under s 501CA(4) of the Act, with the consequence that the applicant’s visa was restored: Kirk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4858.
Section 501BA(2) of the Act empowered the Minister to set aside the Tribunal’s decision if satisfied that (relevantly) cancellation of the applicant’s visa was in the national interest. Section 501BA(3) expressly provided that the rules of natural justice did not apply to a decision under s 501BA(2).
On 29 May 2024 the Minister set aside the Tribunal’s decision in the personal exercise of that power. In his written reasons, the Minister identified that he was not obliged to afford the applicant an opportunity to be heard in relation to the exercise of the power and identified that he nonetheless had a discretion to do so. The Minister said that he had chosen not to afford the applicant an opportunity to be heard. However, he did have regard to earlier representations the applicant had made to a delegate (and later to the Tribunal) as to why the cancellation decision should be revoked.
This is an application for judicial review of the Minister’s decision.
To succeed on the application the applicant must show that the Minister’s decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163.
The single ground of review is as follows:
The Respondent erred in law by purporting to consider the decision without natural justice in accordance with s 501BA(3), despite taking into account representations made by the Applicant before the Tribunal.
The applicant’s argument is that the Minister’s decision is affected by legal unreasonableness in the sense that it was made by adopting a process that was illogical or irrational. He submits that the illogicality arises because the Minister had regard to the representations he had made “in a completely different context some two years prior”. He submits that in circumstances where 19 months had elapsed between the Tribunal’s decision and the Minister’s decision, by reason of the Minister taking into account the earlier representations whilst at the same time “purporting to refuse to afford [him] natural justice”, he had been deprived of “a real opportunity to convince the Minister that the power conferred by s 501BA should not be exercised”. The applicant submits that on the proper construction of s 501BA the Minister is presented with a binary choice: to afford procedural fairness or not. The applicant submits that the Minister “adopted an impermissible middle ground”. He submits that the lapse of time between the Tribunal’s decision and the Minister’s decision “had the inevitable outcome that the Minister failed to take into account circumstances that he himself had decided were relevant”. The alleged illogicality was further explained in the applicant’s written submissions as follows:
15.The illogicality may be illustrated by reference to the possible thought processes behind the different determinations made by the Minister:
(a)the Minister was of the view that the representations of the Applicant could make no difference to his determination as to the exercise of power, and therefore his refusal to afford the Applicant an opportunity to be heard is logical;
(b)the Minister was of the view that the representations of the Applicant could make a difference to his determination as to the exercise of power, and therefore his decision to take into account the Applicant’s representations is logical.
16.The permutation which is not logical, which should be illustrated by the foregoing, is that the Minister has formed the view that both 15(a) and 15(b) are true. They cannot be. Either representations could make a difference, or they could not. …
The applicant has emphasised that he does not assert that the outcome of the Minister’s consideration has “strayed from the statutory purpose of the power”. Rather, he submits that the power under s 501BA(2) was conditioned by a requirement that the process by which the Minister reaches a decision have “some logical foundation”. He submits that the particular process by which the decision was arrived at was so illogical that it must be set aside. He emphasised that his submissions should not be understood to import a requirement to afford procedural fairness, acknowledging that such a requirement is expressly precluded by s 501AB(3) of the Act.
CONSIDERATION
Like all statutory powers, the power under s 501BA is conditioned by an implied requirement that it be exercised within the bounds of legal reasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (at [72], [76]). As Gaudron J explained in Abebe v Commonwealth (1999) 197 CLR 510 (at [116]), the obligation to exercise a statutory power reasonably arises as a matter of statutory construction:
… [I]t is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it. …
See also Kruger v Commonwealth (1997) 190 CLR 1, Brennan CJ (at 36); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gummow J (at [126]); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ (at 645).
The Court’s task in identifying jurisdictional error of this kind was explained by Allsop CJ in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 as follows:
11The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
12Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
The source of the power in the present case is s 501BA(2). It is a power that can be lawfully exercised without affording the affected person an opportunity to be heard irrespective of whether unfairness in the ordinary sense may result. By precluding an obligation to afford an affected person a right to be heard, Parliament may be taken to contemplate that the Minister’s decision may lawfully be made in the absence of factually relevant information which the affected person might otherwise be in a position to provide, including information that is more up-to-date than that in the Minister’s possession. If it be within the scope of a power to proceed in an unfair fashion, it must follow that the resulting decision cannot be affected by legal unreasonableness merely by virtue of that unfairness. Expressed another way, the statutory intent to be discerned from s 501AB(3) is that the power in s 501AB(2) can lawfully be exercised in a manner that is procedurally unfair. Unfairness of that kind is within the scope of the power.
To some extent the applicant’s complaint that the Minister’s decision making process was illogical or irrational was articulated in a way that went no further than demonstrating that the process of decision making was unfair. Given what I have said thus far, that part of the applicant’s contentions cannot succeed.
Plainly, the Minister has a discretion to afford procedural fairness to a person affected by the decision. That has been described as a facilitative power and the Minister is generally under no obligation to consider its exercise. In Vargas v Minister for Home Affairs (2021) 286 FCR 387, the Full Court held that where consideration is in fact given to its exercise (as is the case here) the choice not to afford natural justice is amenable to review on grounds of legal unreasonableness.
The applicant submitted that it was illogical (and hence legally unreasonable) for the Minister to have regard to submissions that were outdated in circumstances where no opportunity had been given to the applicant to update them. I understood that submission to impugn the Minister’s procedural decision not to afford procedural fairness. I accept that the Minister made that procedural decision: the Minister disclosed in his reasons a conscious consideration of the discretion and a clearly articulated decision as to how he would proceed and why. In my view, it is that decision that is truly the source of the applicant’s complaint. I accept it is a decision that is amenable to review on the ground of legal unreasonableness. The ground nonetheless fails for factual reasons.
The Court was invited to infer that the applicant’s prior representations were in fact outdated because (and only because) of the effluxion of time.
I accept that the effluxion of time may be relevant in a case where a decision (or a process leading to a decision) is said to be illogical or irrational. However, in the present case it has not been demonstrated that the effluxion of time could support a finding that the Minister illogically or irrationally had regard to information that was out of date, such that the only lawful course available to the Minister was to ignore them, or invite further submissions or information. This Court was not taken to any part of the Minister’s reasons, other than those passages in which he recorded that he would not afford the applicant procedural fairness but would nonetheless have regard to the representation he had previously made. Nothing was said about the substantive content of the representations and there is no evidence to support a finding that they were factually outdated by reason only of the effluxion of time.
To the extent that it was submitted that the applicant’s arguments found support in my judgment in LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299 I reject the submission. In that case I concluded that a decision made under s 501AB(2) of the Act was affected by legal unreasonableness in discrete and unique factual circumstances that do not resemble those of the present case. The illogicality identified in LJTZ lay in the circumstance that the Minister had falsely stated that he had had regard to the most up-to-date material whereas in truth he had relied on dated information from a source going to a critical issue, whilst ignoring up-to-date information within his actual or constructive possession emanating from the very same source. There was no contention in that case that the Minister was under a positive obligation to seek out the most up-to-date information. No such issue arose because the most up-to-date information was already in the Minister’s possession. The arguments presented in that case did not undermine or contradict the express preclusion of procedural fairness as provided for in s 501BA(3) of the Act.
That applicant’s argument that the Minister was faced with a “binary choice” cannot be accepted as a matter of statutory construction. The argument proceeded from the premise that once the Minister had chosen to have regard to the earlier representations, his discretion to afford the applicant procedural fairness could only have been lawfully exercised in one way. On the other hand, it was acknowledged that the Minister could lawfully proceed without having regard to the representations at all.
I confess to having some difficulty understanding this aspect of the applicant’s submissions. However, it seems to me that I am bound to follow the judgment of the Full Court in Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156 in which arguments of the same or similar kind (expressed in a multitude of ways) were rejected. In that case, a visa holder was given notice that the Minister was considering the exercise of the power under s 501BA(2) to set aside a non-adverse Tribunal decision and cancel her visa. She was informed that the Minister would have regard to representations she had previously made and she was also invited to provide further submissions and material. A submission she had sent to the Department administered by the Minister was not brought to the Minister’s attention (because it was submitted later than deadlines imposed) and was not considered by him. The visa holder appealed from an order dismissing her application for judicial review of the Minister’s decision. On appeal, it was argued that the Minister committed jurisdictional error characterised in multiple ways: denial of procedural fairness, legal unreasonableness, misconstruction of the law and a failure to have regard to relevant considerations (being the most up-to-date information contained in the submission).
The Full Court (Derrington, Feutrill and Hespe JJ) rejected each of the appellant’s contentions having regard to the text, context and purpose of s 501BA of the Act. Derrington and Hespe JJ concluded (at [86]):
… The mere fact that the Minister grants to the visa holder some opportunities which align with certain elements of natural justice does not affect an alteration to s 501BA(3), which remains operative and intact. There is no authority which suggests otherwise, and it would be surprising were there to be any.
The Full Court in Palmer otherwise concluded that a complaint that the Minister had failed to have regard to relevant considerations amounted to a re-labelling of a complaint that the Minister had failed to afford the visa holder procedural fairness, a submission that could not succeed given the express exclusion of any procedural fairness obligations under s 501AB(3).
The applicant’s “binary choice” argument must fail because it too involved an exception, qualification or undermining of s 501AB(3) of the Act which the Full Court in Palmer categorically stated cannot occur.
Accordingly, if I am wrong in the analysis set out earlier in these reasons, I would nonetheless consider myself bound to follow Palmer and dismiss this application on that alternative basis.
There will be an order dismissing the application for judicial review with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 4 March 2025
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