FEDERAL COURT OF AUSTRALIA
Ozer v Minister for Home Affairs [2019] FCA 104
ORDERS
VID 145 of 2018 BETWEEN: HAKAN OZER
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
14 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application be dismissed with costs as agreed or assessed.
Note: Entry of orders is dealt with in…
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- Case
- [2019] FCA 104
- Decision Date
CaseChat Overview and Summary
The court dismissed the applicant's application for judicial review and ordered that costs be paid as agreed or assessed. This outcome was based on the court's determination that the Minister's decision to not revoke the cancellation of the applicant's visa was not legally unreasonable and was within the boundaries of power. The court found that the Minister had reached his state of satisfaction in a legally reasonable way and that there was no obligation on the Minister to make further inquiries. The court also noted that the principles guiding the disposition of this application for review supported the Minister's decision. As a result, the applicant's application was dismissed and costs were ordered to be paid as agreed or assessed.
Orders
Orders of the court
1. The application be dismissed with costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Here, had the Minister updated the Contravention Report, no “useful result” would have been yielded, according to the Minister. The applicant may have commenced some degree of compliance with the CCO, but this could not alter the historical fact that he had been in breach of the CCO and had still, by the end of 2017, failed to commence to undertake medical and like treatment. His compliance was tentative and would have made no difference to the outcome. In that respect, the applicant did not dispute that a decision to cancel the Visa based only upon the historical breaches would have been legally reasonable if it had, for example, been made in August 2017.Consideration The following principles are of assistance in the disposition of this application for review:(1)First, by its terms s 501BA does not impose on the Minister any express obligation as to how he or she is to be satisfied of the preconditions to the exercise of the power to cancel a visa. Generally speaking, it is a matter for the Minister to consider such material and to make such inquiries that will permit him or her to reach the required state of satisfaction (see Carrascalao; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; Gbojueh, supra).(2)Secondly, the Minister in reaching that required state of satisfaction is not acting as a tribunal of review.(3)Thirdly, it was accepted by the Minister that it should be implied from the function and purpose of s 501BA that Parliament intended that the Minister reach his state of satisfaction in a legally reasonable way.(4)Fourthly, legal unreasonableness is invariably fact dependent and requires careful evaluation of the evidence: SZVFW at [84] per Nettle and Gordon JJ.(5)Fifthly, the evaluation of whether a decision was made within the boundaries of power (the limits of “decisional freedom”) is conducted by reference to the relevant statute, its terms, scope and purpose in the factual and legal context of the decision in question, as well as from the values drawn from the common law, in particular, of reasonableness: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [7]; SZVFW at [59] per Gageler J, [79] and [88] per Nettle and Gordon JJ, [135] per Edelman J.(6)Sixthly, the statutory scheme here does not suggest that there exists any independent and distinct discretion in s 501BA(2), in addition to the express requirements of that provision, operative as an additional step to be satisfied, and whose exercise is to be informed by ordinary principles of administrative law. The phrase “may set aside” in s 501BA(2) is apt to refer to the conferral of power which can be personally exercised so long as the Minister’s state of satisfaction as to each of the two jurisdictional matters found in subs (2) is validly reached. It is the formation of that state of satisfaction which must be completed in a legally reasonable way. The statutory architecture here is relevantly analogous to s 501CA(4) where the Minister “may” revoke a cancellation decision. In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, Colvin J said at [73]-[74]:Finally, if the Minister is satisfied that there is a reason why the cancellation decision should be revoked then, given the way in which s 501CA(4)(b) is expressed, the Minister must revoke. As the failure to meet the character test will be the only reason why a person’s visa will be revoked under s 501(3A), it would be strange if the Minister was satisfied for the purposes of s 501CA(4)(b)(i) that the person passed the character test, yet there remained a discretion whether to revoke. Such a construction would mean that the power to revoke could be withheld even though the Minister was satisfied that the basis on which the visa had been cancelled was not actually satisfied. Equally, it would be strange if the Minister found that there was another reason for the purposes of s 501CA(4)(b)(ii) why the original decision should be revoked, but nevertheless retained a discretion to refrain from revoking the cancellation of the visa.Therefore, the opening words to s 501CA(4) are in all likelihood an example of those cases where ‘may’ means ‘must’: Marzano [(2017) 250 FCR 548] at [31]; Julius v Lord Bishop of Oxford (1880) 5 App Cas 214; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134-135, 138-139 and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [38]. If there remains a discretion once the Minister is satisfied as to one of the matters in s 501CA(4)(b) it would be a very narrow one that, in most circumstances, could not be reasonably exercised by refusing to revoke the original decision to cancel the visa.Reeves and Rangiah JJ agreed with Colvin J. In my view Colvin J’s observations apply with equal force to the use of the word “may” in s 501BA(2), notwithstanding the observations of Bromberg J in Gbojueh. In my view, and with respect, I am obliged to apply the reasoning of Viane. There is thus no residual discretion and no two-step process: cf Cumins v Federal Commissioner of Taxation [2007] FCAFC 21; 66 ATR 57 at [41] per Ryan, Tamberlin and Middleton JJ. The absence of such a residual discretion, however, does not deny the obligation on the part of the Minister to reach the required states of satisfaction under s 501BA reasonably. As Gageler J observed in Li at [90]:Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty.(Footnote omitted.)(7)Seventhly, s 501BA is a potential final step in a process that commences with the automatic cancellation of a visa under s 501(3A) of the Act because a person has not passed the character test in the prescribed way; that is followed by the giving of an invitation pursuant to s 501CA(3) to that person to make representations to the Minister about the revocation of the cancellation decision; that is then followed either by a decision not to revoke the original cancellation decision pursuant to s 501CA(4) or by a decision to revoke the original cancellation decision; if the former there may be review of the merits of the decision in the Tribunal or judicial review of the decision in this Court (depending on who exercised the power); it is only when the merits of an application for revocation have been reviewed by a delegate of the Minister or by the Tribunal in favour of an applicant that the power conferred by s 501BA is enlivened for the first time. In other words, the power is only exercisable following a decision reached on the merits in favour of an applicant. Grounded thereafter in part on the personal judgement of the Minister as to what is in the “national interest”, I would characterise the power conferred by s 501BA as one of Ministerial intervention to be exercised when the Minister judges it to be in the “national interest” and is satisfied that the applicant fails the identified parts of the character test. As such, it may not necessarily be directed at the same considerations considered for the purpose of s 501CA(4), such as of the best interests of any children, the expectations of the Australian community, the ties to Australia, and the like. It may be concerned, as here, with new or fresh evidence, or with general political oversight of administrative review. For that the Minister is accountable to the Houses of Parliament. In that respect, it is notable that the power is not engaged where a court has quashed a decision of a delegate or the Minister in judicial review proceedings. (8)Eighthly, it follows from the foregoing, and from what was said in Carrascalao, that the boundaries of decisional freedom should be wide and not narrow in the exercise of the power under s 501BA. As Wigney J said in Uriaere v Minister for Home Affairs [2018] FCA 2084, at [48]-[50]:48As for whether the decision could be said to be “plainly unjust”, the subject matter, scope and purpose of the Act, and s 501BA in particular, would tend to suggest that the area of decisional freedom in relation to decisions under s 501BA is very broad indeed. While many decision-makers would not have made the same decision as the Minister, as perhaps evidenced by the Tribunal’s decision, it cannot be concluded that the Minister’s decision was outside the area of decisional freedom. It accordingly could not be said to be plainly unjust. 49In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, the Full Court said (at [103]):Parliament has entrusted the power to cancel a visa on character grounds under s 501(2) of the Act to the Minister. Where the Minister exercises that power personally, Parliament has expressly provided for no merits review of that decision, unlike the situation which prevails if the decision is made by the Minister’s delegate. In such circumstances, the Court must be astute to ensure that it is not seen to engage in a form of impermissible merits review under the guise of the legal unreasonableness ground of judicial review. In such circumstances, one would expect (consistently with the observation of Gageler J in Li at [113]) that in the case of decisions made by the Minister personally, intervention on the ground of legal unreasonableness would be fairly rare and would only occur in relatively clear cases. This was not such a case.50The same applies to the Minister’s exercise of power under s 501BA of the Act … I respectfully agree with his Honour. It follows that the observations of Gageler J in Li at [108] and [111], supra, are applicable. Parliament has reposed the power of intervention in the Minister personally and not in the Court. The Minister must be satisfied that cancellation is in the national interest. The Minister must decide when to intervene. Contrary to the submission of the applicant, the exclusion of the rules of natural justice, in the specific statutory context here, does not confine the boundaries of power for the purposes of determining the content of the implied requirement that the power be exercised reasonably. Rather, the exclusion of the rules of natural justice makes the Minister’s accountability to Parliament all the more important. (9)Ninthly, I do not think it is of assistance to ask, in abstract form, whether there was or was not here a duty to inquire, or whether the test should turn upon whether fulfilment of such a duty “could have” altered the outcome, or “would have” been decisive or critical of the ultimate result. Generally speaking, there is no duty on an administrative decision-maker to inquire or conduct investigations, save in the limited circumstances described by the High Court in SZIAI; Westlake v Attorney-General [2017] FCA 1058 at [27] per Bromwich J; Gondarra at [128] per Kenny J; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [48] per Rares and Robertson JJ. Prescriptions or formulae that make distinctions between what “could have” or “would have” occurred are not apt to define the evaluative analysis a court must undertake with respect to the particular facts before it in determining whether the Minister’s state of satisfaction for the purposes of s 501BA was reached in a legally unreasonable way. Having said that, I accept that the obligation to exercise the power in s 501BA in a legally reasonable way could, in an extreme case, require a decision-maker to make an inquiry. The content and nature of that inquiry would turn upon the particular applicable facts.