Taulahi v Minister for Immigration and Border Protection
[2016] FCAFC 177
•14 December 2016
FEDERAL COURT OF AUSTRALIA
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177
File numbers: NSD 585 of 2016
NSD 872 of 2016
SAD 164 of 2016Judges: KENNY, FLICK AND GRIFFITHS JJ Date of judgment: 14 December 2016 Catchwords: MIGRATION – Mr Taulahi’s visa cancelled under s 501(3) of the Migration Act 1958 (Cth) – character grounds – failure to take into account legal consequences of cancellation decision – where passing character test is a condition for revocation of cancellation – futility of making representations
MIGRATION – Mr Taulahi’s and Mr Carrascalao’s visas cancelled – whether cancellation in the national interest pursuant to s 501(3)(d) – formation of reasonable suspicion – has been or is a member of a group which has been or is involved in criminal conduct – misconstruction of legislative provisions – jurisdictional error
MIGRATION – power to provide information to visa holder – whether s 503A prohibits disclosure – natural justice not to apply – limited circumstances in which Minister can disclose s 503A information – no misconstruction of disclosure powers
ADMINISTRATIVE LAW – legal nature of a suspended sentence – whether Minister misunderstood the character of a sentence not involving imprisonment on condition of good behaviour – Minister’s conclusion that conduct was “serious” – need to construe reasons fairly and as a whole
CONSTITUTIONAL LAW – Mr Stevens’ visa cancelled under s 501(3) of the Migration Act 1958 (Cth) – whether Mr Stevens was an alien for the purposes of s 51(xix) of the Constitution – application of Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28
PRACTICE AND PROCEDURE – adjourning grounds raising issues arising under the Constitution – pending High Court hearing
Legislation: Crimes (Sentencing Procedure) Act1999 (NSW), s12
Migration Act 1958 (Cth), ss 14, 501(3), 501(4), 501(6)(a), 501(6)(b), 501(7), 501C, 501C(3), 501C(4), 503A, 503A(1), 503A(2)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Constitution, ss 7, 8, 15, 24, 25, 30, 128, 51(xix)
Cases cited: AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562
Assistant Treasurer v Cathay Pacific Airways Limited [2009] FCAFC 105; 179 FCR 323
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513
AZAFQ v Minister for Immigration and Border Protection [2015] FCA 681
Cayzer v Minister for Immigration and Border Protection [2016] FCAFC 176
Coco v The Queen [1994] HCA 15; 179 CLR 427
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29
Cunliffe v Commonwealth [1994] HCA 44; 182 CLR 272
Grain Pool of Western Australia v Commonwealth [2000] HCA 14; 202 CLR 479
Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; 163 FCR 414
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566
Murphy v Electoral Commissioner [2016] HCA 36; 334 ALR 369
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
Nolan v Minister of State for Immigration and Ethnic Affairs [1988] HCA 45; 165 CLR 178
PlaintiffM64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 327 ALR 8
Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 90 ALJR 297
Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28
Pochi v Macphee [1982] HCA 60; 151 CLR 101
R v Pearson; Ex parte Sipka [1983] HCA 6; 152 CLR 254
Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162
Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391
Roach v Electoral Commissioner [2007] HCA 43; 233 CLR 162
Rowe v Electoral Commissioner [2010] HCA 46; 243 CLR 1
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252
Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28
Stevens v Minister for Immigration and Border Protection [2016] FCA 1280
Tanielu v Minister for Immigration and Border Protection [2014] FCA 1221; 226 FCR 154
Vella v Minister for Immigration and Border Protection [2015] FCAFC 53; 230 FCR 61
Date of hearing: 10 and 11 November 2016 Date of last submissions: 12 December 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 209 Counsel for the Applicant in NSD 585 of 2016: Mr S Lloyd SC with Mr D Hume Solicitor for the Applicant in NSD 585 of 2016: Dobbie and Devine Immigration Lawyers Pty Ltd Counsel for the Applicant in NSD 872 of 2016: Mr D Hume with Ms C Winnett Solicitor for the Applicant in NSD 872 of 2016: Zali Burrows Lawyers Counsel for the Applicant in SAD 164 of 2016: The Applicant appeared in person with the assistance of Mr A Cauchi Counsel for the Respondent: Dr S Donaghue QC with Mr C Lenehan and Mr B Lim Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 585 of 2016 BETWEEN: TOMASI TAULAHI
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGES:
KENNY, FLICK AND GRIFFITHS JJ
DATE OF ORDER:
14 DECEMBER 2016
THE COURT ORDERS THAT:
1.The Respondent’s decision dated 8 April 2016 to cancel the Applicant’s visa be set aside.
2.The Applicant be released immediately from immigration detention.
3.The parties should seek to agree additional orders which give effect to these reasons, including as to costs, and also address the need for the Court to determine and give reasons for judgment in respect of the remaining grounds of review. They should do so within five business days hereof and, if they cannot agree additional orders, each should file and serve within that time their respective proposed orders, together with brief written submissions in support not exceeding three pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 872 of 2016 BETWEEN: HELDER AGAPITO CARRASCALAO
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGES:
KENNY, FLICK AND GRIFFITHS JJ
DATE OF ORDER:
14 DECEMBER 2016
THE COURT ORDERS THAT:
1.The Respondent’s decision dated 17 May 2016 to cancel the Applicant’s visa be set aside.
2.The Applicant be released immediately from immigration detention.
3.The parties should seek to agree additional orders which give effect to these reasons, including as to costs, and also address the need for the Court to determine and give reasons for judgment in respect of the remaining grounds of review. They should do so within five business days hereof and, if they cannot agree additional orders, each should file and serve within that time their respective proposed orders, together with brief written submissions in support not exceeding three pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 164 of 2016 BETWEEN: ANDREW PETER STEVENS
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGES:
KENNY, FLICK AND GRIFFITHS JJ
DATE OF ORDER:
14 DECEMBER 2016
THE COURT ORDERS THAT:
1.The parties have liberty to file any submissions (limited to 3 pages) no later than 4 pm on 22 December 2016 as to whether the hearing and determination of ground 6 of the Further Amended Originating Application should proceed before Charlesworth J or before this Full Court.
2.No later than 4 pm on 22 December 2016, the parties file submissions (limited to 3 pages) as to the costs of the proceeding to date in the Full Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
INTRODUCTION
[1]
THE FACTUAL BACKGROUND
[15]
Mr Taulahi
[16]
Mr Carrascalao
[23]
Mr Stevens
[29]
THE STATUTORY PROVISIONS
[36]
THE GROUNDS OF REVIEW RESOLVED
[40]
(a) A failure to have regard to the legal consequences of the Minister’s decisions
[46]
(i) Did the Minister fail to consider the legal consequences of the cancellations made under s 501(3)?
[53]
(ii) Was there an obligation to consider the legal consequences of a cancellation decision under s 501(3)?
[79]
The decision of the Full Court in NBMZ
[80]
Consistency of approach with High Court authority
[86]
The reasoning in Roach
[89]
The decisions in Tanielu and Stevens
[94]
Disposition of the first common ground
[100]
(b) Has been or is a member and has been or is involved in criminal conduct – a disconformity in the Minister’s fact finding?
[101]
Disposition of the second common ground
[149]
(c) The provision of information in advance
[151]
Disposition of the third common ground
[173]
Mr Carrascalao’s additional ground – the legal nature of a suspended sentence
[174]
Is Mr Stevens an alien or one of the people of the Commonwealth? [185] CONCLUSIONS
[205]
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
The Court presently has before it three proceedings, namely:
·Taulahi v Minister for Immigration and Border Protection (NSD 585/2016) (Taulahi);
·Carrascalao v Minister for Immigration and Border Protection (NSD 872/2016) (Carrascalao); and
·Stevens v Minister for Immigration and Border Protection (SAD 164/2016) (Stevens).
In each of these proceedings the Minister for Immigration and Border Protection has made a decision to cancel the visa of each Applicant in reliance upon s 501(3) of the Migration Act 1958 (Cth) (the Migration Act).
In making each of these decisions, the Minister had before him an Issues Paper which included information withheld from each of the Applicants. The information withheld has been variously referred to as the “Secret Information” or the “Protected Information”. In withholding that information, the Minister relies on s 503A of the Migration Act. If valid, s 503A potentially authorises the withholding of the protected information from not only each of the Applicants but the Court itself.
Common to all three proceedings is the validity of s 503A. The Applicants contend that s 503A is beyond the legislative competence of the Commonwealth Parliament. One of the bases upon which this contention is advanced is that the withholding of information from the Court invalidly permits the Minister to effectively determine the limits of his own power and therefore offends Chapter III of the Constitution. The proceeding commenced by Mr Stevens raises an additional argument not relied upon by either Mr Taulahi or Mr Carrascalao. In Mr Stevens’ case, it is common ground that Mr Stevens was entitled to vote and has in fact voted at a number of federal elections. He separately contends that s 501(3) as it applies to him is beyond the legislative power conferred upon the Commonwealth Parliament by s 51(xix) of the Constitution.
The Chief Justice made a determination pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the proceedings are to be heard and resolved by the Court as presently constituted.
In each proceeding the Applicant also sets forth in his Originating Application (as amended) a series of grounds of review seeking to impugn the relevant decision. In the proceeding commenced by Mr Stevens, some of his grounds of review have been considered and rejected by Charlesworth J and one ground (ground 3) has been deferred pending the determination by this Court of two other grounds (grounds 5 and 6): Stevens v Minister for Immigration and Border Protection [2016] FCA 1280 (Stevens). All of the grounds of review remain to be resolved in the other two proceedings. In Mr Taulahi’s proceeding there were initially eleven grounds of review; in Mr Carrascalao’s proceeding, there were nine grounds of review. There is a substantial overlap in the grounds of review in those two proceedings. But Mr Carrascalao relies upon one additional ground not relied upon by Mr Taulahi.
In advancing two of the grounds of review in Mr Taulahi’s and Mr Carrascalao’s proceedings, access is sought to the Protected Information. In each of those proceedings a Notice to Produce has been served requiring production of that information. The Minister resists production but is prepared to provide to the Court and to the Applicants’ legal representatives a redacted version. In resisting production, the Minister:
·seeks to rely upon the prohibition on disclosure set forth in s 503A; and
·foreshadows that a claim may be made for public interest immunity privilege (which was formerly known as “Crown privilege”).
Submissions in respect to those affected grounds of review cannot proceed without resolution of the question whether access is to be granted to the information withheld. It would have been preferable for any claim for privilege to have been made at the same time as argument relating to the withholding of information pursuant to s 503A.
The proceedings were listed before the Court on 10 and 11 November 2016. At the very end of the first day of hearing Senior Counsel for the Minister advised the Court for the first time that a separate proceeding had been commenced in the High Court of Australia raising much the same challenge to s 503A as was raised in the three proceedings now before this Court. That matter was listed for directions before a Justice of the High Court on 14 November 2016 and it was anticipated that the High Court would hear that matter in March/April 2017. A further matter listed for directions before the High Court at the same time was one which had been removed into the High Court from this Court (proceeding WAD 732 of 2015). The Minister should have kept this Court advised earlier of those proceedings. It may well have affected the order made by the Chief Justice as to the manner in which this Court was constituted and may well have affected the listing for hearing of each of the three proceedings now before this Court. The Minister should have advised this Court earlier of the very real prospect that this Court was being called upon to resolve much the same questions as would be resolved in the immediate future by the High Court.
Given the concurrence of issues to be resolved by the High Court, it was agreed between the parties on 10 November 2016 that the best course for this Court to pursue was to adjourn the hearing of those issues and await the decisions of the High Court. The adjournment of those issues also involved the adjournment of those grounds of review which depend upon the ability of the Minister to withhold information pursuant to s 503A. It was further agreed that this Court should proceed to resolve the remaining grounds of review relied upon by Messrs Taulahi and Carrascalao and the challenge advanced by Mr Stevens founded upon s 51(xix) of the Constitution – that not being an argument that the High Court was being called upon to resolve. Such a course necessarily fragmented the orderly hearing of the entirety of the grounds of review in each of the three proceedings.
Submissions in respect to the remaining grounds of review and Mr Stevens’ separate challenge founded upon s 51(xix) of the Constitution proceeded on 11 November 2016.
In respect to those remaining grounds of review, it is respectfully considered that the following two grounds should be resolved in favour of one or other of Messrs Taulahi and Carrascalao, namely those arguments founded upon:
·a failure on the part of the Minister to have regard to the legal consequences of his decision to cancel the visas (Mr Taulahi); and
·a failure on the part of the Minister properly to form a “reasonable” suspicion that the person whose visa is to be cancelled “has been or is a member of a group or organisation” and whether the group or organisation “has been or is involved in criminal conduct” (both Mr Taulahi and Mr Carrascalao).
Given the conclusion of the Court that these grounds should be upheld, the somewhat unusual course has been pursued of resolving these grounds and some others in advance of the balance. But, as Senior Counsel for Mr Taulahi readily submitted, it mattered little to Mr Taulahi whether he met with success by reason of one or other of his grounds of review or by reason of any challenge to s 503A founded upon the Constitution. All three Applicants, he emphasised, were presently in detention.
Such a course may secure the earlier release from detention of Messrs Taulahi and Carrascalao than may otherwise be the case.
It is also appropriate now to reject the one ground of review relied upon by Mr Carrascalao and not Mr Taulahi, namely his argument that:
·the Minister failed properly to understand the nature of a criminal sentence that has been suspended.
For reasons which are given below, that is an argument without substance.
The argument in the proceeding commenced by Mr Stevens which was deferred pending the decision of this Court focussed upon the invalidity of s 503A. As with the proceedings commenced by Messrs Taulahi and Carrascalao, the s 503A argument is to be adjourned pending the decisions of the High Court; the argument founded upon Mr Stevens not being an “alien” is now resolved and is rejected for reasons given below.
THE FACTUAL BACKGROUND
Although the resolution of the grounds of review that have presently prevailed may be resolved largely by reference to the Minister’s statements of reasons, it is prudent nevertheless to set forth the factual background which gave rise to the Minister taking action to cancel the visa of each Applicant.
Mr Taulahi
Mr Tomasi Taulahi was born in Tonga and is a national of that country. He first arrived in Australia in December 1988. He was then 12 years old.
He was granted a Class UA Transitional (Temporary) visa in December 1989. An application for a Refugee and Humanitarian visa was lodged in 1993, with Mr Taulahi named as a dependant applicant. That application was refused and the Refugee Review Tribunal affirmed the decision refusing the visa in March 1997.
Mr Taulahi thereafter remained unlawfully in Australia until he was granted a Class WE Subclass 050 Bridging Visa in October 2007. He was granted a number of further visas with his final bridging visa ceasing in August 2008. The Minister intervened in 2010 and Mr Taulahi was granted a Class BS Subclass 801 Partner visa – a permanent visa.
Of present relevance is the provision to the Department of Immigration and Border Protection (the Department) of an information report prepared by the Australian Crime Commission in December 2015. Further information was provided for the consideration of the Minister which was said to be protected by reason of s 503A of the Migration Act. The information in the Australian Crime Commission’s report included “several images … in which Mr Taulahi is shown in Lone Wolf Outlaw Motorcycle Gang … colours…”.
When making his decision, the Minister had placed before him an Issues Paper, which included a number of annexures. In addition to information provided by the Australian Crime Commission and the Protected Information provided under s 503A, the other annexures varied from a summary of Mr Taulahi’s visa history; a media article and a media release; letters of support; and personal information such as a birth certificate and a marriage certificate.
The Minister concluded that Mr Taulahi did not pass the character test by reason of s 501(6)(b).
Mr Taulahi filed an Originating Application seeking judicial review of the Minister’s decision in April 2016. A Notice to Produce seeking the Protected Information was served on the Minister in May. An Amended Originating Application was filed in June 2016, which added grounds 4 to 11. Leave was granted at the hearing for Mr Taulahi to file a Further Amended Originating Application.
Mr Carrascalao
Mr Helder Carrascalao was born in East Timor and is a Portuguese citizen. He first arrived in Australia in 1975 with his mother and seven siblings. He was then 7 years old.
He has been a permanent resident of Australia since that time. He previously held a Transitional (Permanent) Visa.
Of present relevance is the fact that on 9 May 2007 Mr Carrascalao was convicted at the Campbelltown Local Court in New South Wales and was sentenced to a total of 12 months’ imprisonment, suspended on entering a bond to be of good behaviour for 12 months. The offences involved were:
·two counts of driving while disqualified;
·common assault;
·contravening an apprehended domestic violence order; and
·making a false statement to obtain money.
When making his decision, the Minister had placed before him an Issues Paper prepared by the Department. The annexures to that Issues Paper included a summary of Mr Carrascalao’s visa history; a media article and a media release; and New South Wales police fact sheets. The Minister was also provided with information which was claimed to be “information … protected from disclosure under section 503A of the Act…”. The Minister proceeded to cancel Mr Carrascalao’s visa on 17 May 2016. In reaching his decision, the Minister:
·made a finding that he reasonably suspected that Mr Carrascalao did not pass the character test under s 501(6)(a) of the Migration Act because he had a substantial criminal record as defined by s 501(7)(c); and
·made another finding that he reasonably suspected that Mr Carrascalao did not pass the character test by virtue of s 501(6)(b) of the Migration Act because he reasonably suspected that Mr Carrascalao “has been or is a member of a group and that the group has been or is involved in criminal conduct”, namely the Bandidos Outlaw Motorcycle Gang.
The Minister’s ultimate conclusion was expressed as follows (emphasis added):
47.Having given full consideration to all the information before me in this case, I reasonably suspect that Mr CARRASCALAO does not pass the character test by virtue of section 501(6)(b) and I am satisfied it is in the national interest to cancel his visa. I have treated the best interests of Mr CARRASCALAO’s minor children, as well as the minor children of his de facto partner, as a primary consideration. I also considered the other countervailing considerations in this case, including Mr CARRASCALAO’s familial and social ties in Australia which have been forged during the time in which he has been ordinarily resident in Australia, a period over 40 years. I find that the considerations favouring non-cancellation, in particular the best interests of the affected children, are however outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to cancel Mr CARRASCALAO’s Transitional (Permanent) visa under paragraph 501(3)(b) of the Act.
An important issue in Mr Carrascalao’s case is whether the ultimate conclusion to cancel his visa was based on the Minister’s findings in respect of both s 501(6)(a) and 501(6)(b) or was confined to the latter provision alone, as might be suggested by the wording of the conclusion in [47] which is set out immediately above. This issue is considered at [107] to [118] below.
On 2 June 2016 an Originating Application was filed in this Court seeking judicial review of the Minister’s decision. Counsel for Mr Carrascalao sought to file in Court on 10 November 2016 an Amended Originating Application. Leave was not opposed and was accordingly granted. The Amended Originating Application substantially replicates the grounds of review in Mr Taulahi’s proceeding, with the addition of ground 7A.
Mr Stevens
Mr Andrew Stevens was born in 1961 in Essex, England.
He arrived in Australia in 1971 with his mother and four siblings. He was granted permanent residency.
He enrolled to vote in both State and Federal elections in Australia when he was 18 years of age. He married his current wife when he was 20 years of age and they have three children.
In January 1993 he was convicted in the Supreme Court of South Australia for conspiracy to take part in the sale of amphetamines and sentenced to 15 months’ imprisonment. That sentence was suspended upon his entering into a two year bond.
Information placed before the Minister for the purpose of a decision being made as to the cancellation of his visa included information said to be protected from disclosure by s 503A. Further information also included photographs of Mr Stevens “wearing clothing with Mongols Outlaw Motorcycle Gang (OMCG) insignia”.
In cancelling Mr Stevens’ visa on 3 June 2016, the Minister concluded that it was in the national interest to do so. His statement of reasons records his ultimate conclusion as follows:
44.Having given full consideration to all of the information before me in this case, I reasonably suspect that Mr STEVENS does not pass the character test by virtue of section 501(6)(a) and section 501(6)(b), and I am satisfied it is in the national interest to cancel his visa. I have treated the best interest of Mr STEVENS’ minor children as a primary consideration. I also considered the other countervailing considerations in this case, including Mr STEVENS’ familial, employment and social ties in Australia which have been forged during the time in which he has been ordinarily resident in Australia, a period of over 44 years. I find that the considerations favouring non-cancellation, in particular the best interest of the affected children, are however outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to cancel Mr STEVENS’ Class BB Subclass 155 Five Year Resident Return visa under paragraph 501(3)(b) of the Migration Act.
Mr Stevens filed an Originating Application seeking judicial review of the Minister’s decision in June 2016. An Amended Originating Application was filed in July. A Further Amended Originating Application followed in advance of Charlesworth J resolving some of Mr Stevens’ grounds of review in November 2016 (see Stevens v Minister for Immigration and Border Protection [2016] FCA 1280).
THE STATUTORY PROVISIONS
It is s 501 of the Migration Act which presently assumes central relevance. Section 503A is the provision which will be subject to scrutiny by the High Court — but it remains of present relevance in resolving one of the grounds of review in each of the proceedings commenced by Messrs Taulahi and Carrascalao.
Section 501 provides (in relevant part) as follows:
Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c)the Minister reasonably suspects that the person does not pass the character test; and
(d)the Minister is satisfied that the refusal or cancellation is in the national interest.
...
(4)The power under subsection (3) may only be exercised by the Minister personally.
(5)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
...
(b)the Minister reasonably suspects:
(i)that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii)that the group, organisation or person has been or is involved in criminal conduct; or
...
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
...
Power is conferred upon the Minister to revoke a decision made under s 501(3) by s 501C. Section 501C provides (in relevant part) as follows:
Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the person satisfies the Minister that the person passes the character test (as defined by section 501).
(5)The power under subsection (4) may only be exercised by the Minister personally.
(6)If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).
…
Section 503A provides (in relevant part) as follows:
503AProtection of information supplied by law enforcement agencies or intelligence agencies
(1)If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:
(a)the officer must not divulge or communicate the information to another person, except where:
(i)the other person is the Minister or an authorised migration officer; and
(ii)the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and
(b)an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:
(i)the other person is the Minister or an authorised migration officer; and
(ii)the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C.
(2) If:
(a)information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or
(b)information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);
then:
(c)the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and
(d)if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.
(3)The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.
(3A)The Minister does not have a duty to consider whether to exercise the Minister’s power under subsection (3).
…
(4A)If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3):
(a)the officer must not be required to divulge or communicate the information to the Federal Court or the Federal Circuit Court; and
(b)the officer must not give the information in evidence before the Federal Court or the Federal Circuit Court.
The information may only be considered by the Federal Court or the Federal Circuit Court if a fresh disclosure of the information is made in accordance with:
(c) a declaration under subsection (3); or
(d) subsection 503B(6).
…
(9) In this section:
...
gazetted agency means:
(a)in the case of an Australian law enforcement or intelligence body—a body specified in a notice published by the Minister in the Gazette; or
(b)in the case of a foreign law enforcement body—a body in a foreign country, or a part of a foreign country, that is a foreign country, or part of a foreign country, specified in a notice published by the Minister in the Gazette; or
(c)a war crimes tribunal established by or under international arrangements or international law.
THE GROUNDS OF REVIEW RESOLVED
Three of the grounds of review common to Messrs Taulahi and Carrascalao which are presently resolved by this Court, in advance of the remaining grounds relied upon by those two Applicants, are arguments which are not dependent upon the manner in which the High Court may resolve such arguments as it sees fit in relation to the validity of s 503A of the Migration Act. They are also independent of the other grounds of review.
These three grounds of review focus attention upon whether the Minister:
(a)failed to have regard to the legal consequences for these two Applicants when making his visa cancellation decisions;
(b)misconstrued the nature of the power conferred by s 501(3) of the Migration Act by not making mandatory findings as to whether Messrs Taulahi and Carrascalao had been or were members of an outlaw motorcycle gang and whether the relevant gang had been or was involved in criminal conduct; and
(c)misconstrued the extent of the power conferred by s 503A in respect to the provision of information.
In Mr Carrascalao’s proceeding an additional ground of review is advanced, namely that the Minister when making his decision:
·misconstrued the nature of a suspended sentence.
In Mr Stevens’ proceeding and in addition to arguments founded upon s 503A, there is a further claim that he is beyond the reach of s 501 of the Migration Act because he is not an “alien” as that term is employed in s 51(xix) of the Constitution.
It should be expressly noted that in Taulahi and Carrascalao there are grounds of review which are not presently being resolved even though they are grounds not dependent upon such constitutional arguments as surround s 503A. With respect to these remaining grounds, the Court will invite the submissions of the parties as to whether separate reasons for decisions should be published resolving their fate.
The three common grounds which are resolved are addressed below. As will emerge:
(a)the first ground is resolved in favour of Mr Taulahi, but not Mr Carrascalao;
(b)the second ground is resolved in favour of both Mr Taulahi and Mr Carrascalao; and
(c)the third ground is rejected in the cases of both Mr Taulahi and Mr Carrascalao.
(a) A failure to have regard to the legal consequences of the Minister’s decisions
The first of the three grounds addresses the contention advanced by both Mr Taulahi and Mr Carrascalao that the Minister failed to have regard “to the statutory and/or legal consequences of his decision” under s 501(3).
In Mr Taulahi’s proceeding the argument is raised by ground 8 of his Further Amended Originating Application, which provides as follows:
8.The Minister unlawfully failed to have regard to the statutory and/or legal consequences of his decision.
Particulars
(i)The Minister was obliged to have regard to the statutory and legal consequences of visa cancellation.
(ii)Those consequences included that:
a.the necessary and sufficient condition for the exercise of the revocation power under s 501C(4) is that the affected person satisfies the Minister that the person passes the character test;
b.accordingly, save for when making the cancellation decision, there is no statutory occasion for the Minister to consider discretionary factors or factors not bearing on the Minister’s satisfaction that a person does not pass the character test, including the effect of the cancellation decision on the interests of the person's children, family and business interests, and whether the person is in general of good character;
c.any representations or submissions made by the applicant under s 501C(4), or any information otherwise available to the Minister after the making of the cancellation decision, which went to those factors would be irrelevant to the course of the Minister's decision-making;
d.the position would be different if the Minister exercised his power under s 501(1) because the person would then be afforded natural justice and would have an opportunity to make representations or submissions going to the effect of the cancellation decision on the person's children and family and as to the person's general good character.
(iii)The Minister was not informed of and did not have regard to the matters in (ii) above when making the cancellation decision.
In Mr Carrascalao’s proceeding, the corresponding ground is ground 5.
As the Minister’s statements of reasons in both Taulahi and Carrascalao indicate, the Minister may, and in these cases did, consider a range of matters in making his decision under s 501(3). A number of these matters related to his exercise of discretion and were likely to have had significant human implications. In the absence of information from the visa holder, the Minister may very well proceed without knowledge of the true facts. This possibility is highlighted in Taulahi and Carrascalao by the Minister’s references in his statements of reasons to his lack of information on some potentially significant matters viewed in human terms.
Where the Minister cancels a visa under s 501(3) there is no opportunity for a visa holder to inform the Minister of the matters, including serious human considerations, which may bear on the Minister’s consideration of whether, as a matter of discretion, a visa ought not be cancelled. The rules of natural justice do not apply to a decision made under s 501(3): see s 501(5). Instead, s 501C(3) provides that, as soon as practicable after the decision under s 501(3) is made (subject to exceptions not applicable here) the Minister must invite the visa holder to make representations to the Minister “about revocation of the original decision”, within the period and in the manner required. The effect of s 501C(4) is, however, that the only basis for revocation of a decision under s 501(3) is that the affected person satisfies the Minister that he or she in fact passes the character test, as defined in s 501(6). If the Minister is satisfied that a person passes the character test, then the Minister has a duty to revoke the original cancellation decision, as explained in Roach v Minister for Immigration and Border Protection [2016] FCA 750 (Roach) at [91]-[92] per Perry J.
The result is that, although s 501C(3) contemplates that a former visa holder whose visa has been cancelled under s 501(3) will have an opportunity to make representations about the revocation of the cancellation decision, the only relevant representations are those that relate to satisfaction of the character test. Because of the definition in s 501(6), however, the application of the character test does not generally allow for any nuanced judgment. Representations about matters that might incline the Minister to revoke the decision as a matter of discretion, even though the former visa holder is unable to satisfy the Minister that he or she passes the character test, cannot under the statutory regime applicable to a decision under s 501(3), form a basis for revocation. Bearing in mind that the rules of natural justice have no application to a decision made under s 501(3), a person whose visa has been cancelled under s 501(3) has therefore no statutorily-conferred opportunity at any stage of the process to persuade the Minister that a visa should not be cancelled on discretionary grounds. The position is different if the Minister proceeds to cancel a visa under s 501(2) of the Migration Act, because in this case the visa holder has an opportunity to inform the Minister of the matters that the visa holder believes are relevant to the Minister’s exercise of discretion, even though he cannot satisfy the Minister that he or she passes the character test, so that they may be brought to bear on the Minister’s consideration of whether, as a matter of discretion, a visa ought not be cancelled.
For the following reasons, it is concluded that the Minister is obliged, in exercising decision-making power under s 501, to take account of the statutory framework in which a proposed decision is to be made, including its statutorily prescribed consequences. The Minister fell into error in Taulahi by failing to take into account the proper operation of s 501C in making his decision under s 501(3). Specifically, the Court infers from the Minister’s statement of reasons in that case that the Minister did not take into account that, where a decision to cancel a visa is made under s 501(3), in considering the revocation of that decision under s 501C, the Minister cannot act on information in the visa holder’s revocation representations that might have led the Minister to determine that the visa should not be cancelled on discretionary grounds. Different considerations apply in Carrascalao.
(i) Did the Minister fail to consider the legal consequences of the cancellations made under s 501(3)?
It is convenient to begin with the question whether the Minister failed to consider the statutorily prescribed consequences of his visa cancellation decisions in Taulahi and Carrascalao, assuming he was required to do so. If he did not fail to consider those consequences, then it is unnecessary to consider whether he was obliged by law to do so, as the Applicants in these two cases contend.
In this connection, there is a material difference between the two cases. In order to explain the difference, reference should be made to the most relevant paragraphs of the Departmental Issues Paper and the Minister’s statement of reasons in both matters.
In Mr Taulahi’s case, the Issues Paper advised the Minister that:
12.Subsection 501C(3) of the Migration Act provides that, following a decision under section 501(3) to cancel a visa, the person who is the subject of the decision is to be notified of the decision and given reasons for the decision (other than non-disclosable information) and invited to make representations about possible revocation of the decision. By subsection 501C(4), if the person makes representations in accordance with the invitation and satisfies the Minister that they pass the character test, the Minister may revoke the cancellation decision.
13.Mr TAULAHI is currently onshore and in the community. If you make the decision to cancel Mr TAULAHI’s visa under section 501(3) of the Migration Act, he may make representations to you about possible revocation of your decision within seven days of being given written notice of your decision, provided he is in immigration detention.
The Department similarly advised the Minister in Mr Carrascalao’s case, although the Issues Paper in his case included the additional statement that:
13.Although Mr CARRASCALAO is able to make representations about possible revocation of your decision, it would be futile for him to do so as he objectively fails the character test on the basis of a substantial criminal record as defined by section 501(7) of the Migration Act.
In Taulahi, the Minister’s statement of reasons substantially repeated the Department’s statements about revocation:
3.Under subsection 501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection 501(3). However, pursuant to section 501C(3), following a decision under subsection 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be notified of the decision and given information relevant to it (other than “non-disclosable information”) and invited to make representations about possible revocation of the decision. By subsection 501C(4), if the person makes representations in accordance with the invitation and satisfies the Minister that they pass the character test, the Minister may revoke the cancellation decision.
(Emphasis added.)
The Minister made the same statements in Carrascalao but also added at the end of [3]:
3.… However, because Mr CARRASCALAO has received a prior sentence of 12 months or more imprisonment, he has a substantial criminal record as provided by s 501(7)(c) and objectively fails the character test under paragraph 501(6)(a), any revocation request he makes could not succeed.
Having regard to the above, the two relevant Applicants did not dispute that, when the Minister came to make a decision under s 501(3), the Minister would have been aware from the Departmental Issues Paper in each case that the Applicants had not had an opportunity to be heard as to whether or not their visas should be cancelled. Furthermore, these Applicants both accepted that, in each case, the Minister had been informed by the Department that he might revoke a cancellation decision if an Applicant satisfied him that he passed the character test.
The Minister agreed with the Applicants that, so far as ground 8 of Taulahi and ground 5 of Carrascalao were concerned, the issues of fact in both cases were largely the same. The only material difference between the two cases was that in Mr Carrascalao’s case (but not in Mr Taulahi’s case) the Minister was informed that revocation representations could not succeed because Mr Carrascalao “objectively failed” the character test. Mr Carrascalao contended that this factual difference was immaterial. The Minister argued, however, that the additional observation regarding the futility of any revocation representations showed that the Minister was aware that satisfaction of the character test was a necessary condition for revocation and that therefore the Minister must have known that any further information that might come to light following Mr Carrascalao’s representations under s 501C(4) and that might have led him not to make the cancellation decision in exercise of discretion was irrelevant since it could not provide a basis for revoking a decision once made under s 501(3).
The Minister’s submission in Carrascalao is accepted. The proposition that the Minister’s original decision under s 501(3) was affected by jurisdictional error because the Minister failed to have regard to the legal consequences of the decision as set out in s 501C must fail because of this additional statement in the Minister’s reasons in Carrascalao. In his reasons, the Minister acknowledged that Mr Carrascalao had had no opportunity to be heard before a decision about his visa was made under s 501(3) and also, by clear implication, recognised that no discretionary considerations could affect any decision at the revocation stage under s 501C.
It is clear from the additional statement at the end of [3] of the statement of reasons in Carrascalao that the Minister had regard to the fact that, although Mr Carrascalao could make revocation representations following the Minister’s original decision under s 501(3), there was no possibility that those representations could result in the revocation of that decision. This was because, on the material before the Department, Mr Carrascalao could not pass the character test on account of his substantial criminal record within s 501(7)(c). Whether or not this involved an error of another kind, the statement made it clear that the Minister was conscious of the fact that he could only revoke a decision previously made under s 501(3) if the visa holder satisfied the Minister that he in fact passed the character test. In this circumstance, it is to be inferred that the Minister adverted to, and considered, that this was a legal consequence of his decision under s 501(3).
Accordingly, ground 5 in Carrascalao cannot succeed and it is unnecessary to consider ground 5 of Carrascalao any further.
But the position in Taulahi is relevantly different, because, absent the statement that appears in the Minister’s reasons in Carrascalao, the Minister’s statement of reasons in Taulahi conveyed a contrary impression about the operation of s 501C.
The Issues Paper in Taulahi informed the Minister that if revocation representations satisfied the Minister that Mr Taulahi passed the character test, then “the Minister may revoke the cancellation decision” (emphasis added). There were two difficulties with this statement. First, it did not communicate (as was the case) that the Minister was required to revoke a decision in the event that the representations made in accordance with s 501C(3) satisfied the Minister that Mr Taulahi passed the character test. Secondly, it did not explain that, if the Minister was not satisfied by those representations that Mr Taulahi passed the character test, then that was the end of the Minister’s consideration of the matter of the visa cancellation and, irrespective of Mr Taulahi’s representations, the Minister could not re-consider the discretion he had exercised under s 501(3). Further, whilst the Issues Paper explained that the rules of natural justice did not apply to a decision under s 501(3), it did not explain that the visa holder’s opportunity to make revocation representations would not afford him an opportunity to persuade the Minister that the Minister should take a different view of all the matters on which the visa cancellation decision under s 501(3) had rested.
Bearing in mind the Issues Paper, the Minister’s statement of reasons in Taulahi indicates that the Minister did not advert to the proper operation of s 501C in making the cancellation decision under s 501(3). The Minister’s reasons did little more than repeat the Issues Paper’s statements about revocation. There was no express mention in them of the fact that the cancellation decision could be revoked if, and only if, the representations made by Mr Taulahi in accordance with s 501C(3) satisfied the Minister that he passed the character test: see s 501C(4). This is significant for four reasons. First, the Minister’s reasons for the cancellation decision under s 501(3) show that the Minister had regard to a number of potentially serious humanitarian considerations in making this decision. Secondly, the Minister’s reasons indicate that he had no, or very limited, evidence about some of these matters. This reflects what was said in the Issues Paper regarding the lack of information about those matters. Thirdly, the Departmental advice that Mr Taulahi could make representations to the Minister “about possible revocation of the decision” would ordinarily be understood as providing an opportunity to persuade the Minister that his visa should not be cancelled by reference to all the matters originally relied on by the Minister, including matters that the Minister treated as relevant to the exercise of his discretion.
Lastly, in contrast to the Minister’s reasons in Carrascalao, there was nothing in the Minister’s reasons that disclosed an awareness and consideration of the fact that it was not possible for Mr Taulahi to persuade the Minister that his visa should not be cancelled on discretionary grounds, despite the lack of information about matters that the Minister considered relevant.
It is true, as the Minister submitted, that the Minister’s reasons indicate that the Minister was aware that the decision to cancel Mr Taulahi’s visa was being made without notice to him and that the rules of natural justice did not apply to a decision under s 501(3), but the Minister’s reasons did not indicate that the Minister was aware of the statutorily prescribed consequences of this decision as set out in s 501C, after he had made his cancellation decision under s 501(3). The statement that “if the person makes representations in accordance with the invitation and satisfies the Minister that they pass the character test, the Minister may revoke the cancellation decision” is misleading and does not address the issue. As indicated above, it is misleading because it suggests that, even if Mr Taulahi satisfied the Minister that he passed the character test, nonetheless the Minister retained a discretion not to revoke the cancellation decision, when in fact the Minister must revoke that decision. Further, it says nothing about the situation where the Minister is not satisfied that the person affected passes the character test. The Minister’s reasons did not state that, if the Minister were not so satisfied, then the original decision could not be undone. Critically, it did not state that any revocation representations made by Mr Taulahi about the discretionary considerations that the Minister had previously considered would be irrelevant because the Minister could not revoke his original decision even if persuaded that, as a matter of discretion, he was wrong in making the cancellation decision in the first place.
Unless there is probative evidence to the contrary, the Court is entitled to treat the written statement of reasons of the Minister as a statement of the matters that he “adverted to, considered and [took] into account”: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (NBMZ) at [16] (Allsop CJ and Katzmann J). If something is not mentioned, then generally (and subject to a contrary finding of fact) it may be inferred that it has not been adverted to, considered or taken into account. If something is stated erroneously, then it may be inferred that the Minister acted on that erroneous basis. The Minister’s reasons in Taulahi purport to set out the Minister’s understanding of what was material to his decision. For the reasons stated, it may be inferred from them that the Minister failed to take into account the proper operation of s 501C.
This conclusion is supported by the “Recommendations” table in the Departmental submission to the Minister, set out in full below. The recommendations indicate that it was put to the Minister that a decision could be made under s 501(2) affording Mr Taulahi an opportunity to be heard before the cancellation decision was made; or alternatively, if the cancellation decision was made under s 501(3) without natural justice, then s 501C would require Mr Taulahi to be invited to make representations to the Minister about revocation of the decision.
The Minister contended that, where there was, as here, no obligation on the Minister to provide reasons, the Minister’s failure to refer to the legal consequences of the cancellation decision in his reasons did not support an inference that the Minister did not consider them. The Minister noted that s 501G, which is the statutory source of the obligation to provide reasons in relation to most s 501 decisions, does not apply to decisions under s 501(3). With respect to a decision under s 501(3), therefore, the Minister submitted that he is obliged only to provide notice of the decision and “particulars of relevant information” under s 501C(3)(a)(ii). This meant, so the Minister submitted, that he was obliged only to provide information that the Minister considers is “specifically about” Mr Taulahi or Mr Carrascalao (as the case may be) or another person and did not extend to the provision of information “just about a class of persons of which [Mr Taulahi] or the other person is a member”. Referring to PlaintiffM64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 327 ALR 8 at [25] (Plaintiff M64/2015), the Minister contended that, in the absence of a duty to give reasons, the Court could not draw any inference of error from what was not said by the Minister.
The fact that a statement of reasons for a decision is provided voluntarily, rather than pursuant to an obligation, cannot prevent a Court drawing inferences about what the Minister considered material to his decision and what he did not consider at all: Assistant Treasurer v Cathay Pacific Airways Limited [2009] FCAFC 105; 179 FCR 323 at [51]. The nature of the statement of reasons may, of course, affect the confidence with which an inference can be drawn. In the present case, however, the Minister has provided a document to the affected visa holder that the Minister described as a “statement of reasons for cancellation of visa under s 501(3)(b) of the Migration Act”. Reference to the contents of the document confirms the accuracy of this description. The document gave a fulsome and apparently exhaustive account of the matters that the Minister considered relevant to his cancellation decision. Whether or not the statement of reasons was given voluntarily does not prevent the Court from inferring in Mr Taulahi’s case that the Minister did not advert to the proper operation of s 501C. Plaintiff M64/2015 at [25] does not assist the Minister’s case at this point, because the document at issue in that case did not purport to be a statement of reasons that exhaustively explained the decision that had been made.
On this limb of his submissions, the Minister also sought to distinguish the situation under consideration in Roach from the cases before this Court. That argument with respect to Mr Taulahi is rejected.
In Roach, Perry J held that the Minister was bound to consider the applicable statutory framework before refusing a grant of a visa under s 501(3) as opposed to s 501(1), and that the Minister did not consider the legal consequences of the decision under s 501(3). Plainly enough ground 8 in Taulahi (like ground 5 in Carrascalao) was essentially the same as the ground considered and upheld by Perry J in Roach at [89]-[119], save that that case involved a refusal to grant a visa under s 501(3) as opposed to s 501(1).
The Minister sought to distinguish the second aspect of Perry J’s holding in Roach on the basis that, in arriving at the conclusion that the Minister did not consider the legal consequences of a decision under s 501(3), her Honour had particular regard to an observation in the Departmental paper in that case that further information about Mr Roach’s children is “not held at this time”. Perry J observed that this tended to suggest that at a later time such information might be held and might be relevant. The Minister submitted that no such suggestion was made in the Departmental papers in the cases at hand. Rather, the Minister submitted that here and in the Minister’s reasons, the issues about which little was known (though treated as relevant) were determined favourably to the visa holder. The Minister submitted that this confirmed that he was aware that a consequence of cancelling a visa under s 501(3) was that the visa holder would be denied an opportunity to make submissions on the cancellation. This is not considered sufficient to distinguish Roach from Mr Taulahi’s case.
Differences between Roach and Taulahi in this regard are more apparent than real. Although the words “held at this time” were not used in Mr Taulahi’s case, the Departmental Issues Paper referred to a comparable paucity of information. In Mr Taulahi’s case, the Department noted that “[n]o information is available to the Department regarding the living arrangements for [Mr Taulahi’s] two [minor] children”. It also noted that there was “no information before the Department detailing the current nature of Mr Taulahi’s relationship with his wife” and the absence of information as to whether he lived with his wife and the children. It also noted that “there is no information available to the Department which indicates [Mr Taulahi] has any medical or mental health issues”.
The main point made in this regard by Perry J in Roach at [115] was that the information given to the Minister about the revocation stage of the decision-making in s 501C(3) and (4) intuitively conveyed the idea that the lack of natural justice at the earlier stage, when a decision was made under s 501(3), could be remedied at the later stage when the applicant was given an opportunity to make revocation representations. As her Honour observed, the contrary “conclusion might be thought to be counter-intuitive”. The same is equally true in the case of Mr Taulahi. In his case, as in Roach, the Minister was informed that the rules of natural justice did not apply to the decision-making under s 501(3) and that he had not been given an opportunity to make representations about the possible cancellation of his visa. In this context, the reference immediately thereafter to the fact, if a cancellation decision was made, then Mr Taulahi would “be notified of the decision and given reasons for the decision … and invited to make representations about possible revocation of the decision” naturally conveyed the impression that he would be given an opportunity at the revocation stage to address all the matters on which the Minister had relied in making the original cancellation decision.
In the context of statements that there was a paucity of evidence on some issues that the Minister treated as relevant to his exercise of discretion, information that the visa holder would not have an opportunity to make representations at the primary stage of the decision-making under s 501(3) but would be given that opportunity at a subsequent stage under s 501C only strengthens the impression that the representations at that later stage might relevantly address the issues about which there had previously been no, or little, information, irrespective of the way in which the Minister had chosen earlier to treat the lack of information. The result is not materially different from the effect of the statement in Roach referred to at [75] above. The absence of a statement of the kind to which Perry J referred in Roach and the addition of the features to which the Minister referred in Mr Taulahi’s case do not provide a basis to distinguish Roach.
Accordingly, in Mr Taulahi’s case, it should be concluded that the Minister did not have regard to the direct and immediate statutorily prescribed consequences of a cancellation decision under s 501(3), in particular the consequences arising from s 501C(3) and (4). For the reasons stated earlier, the same conclusion should not be drawn in Mr Carrascalao’s case.
(ii) Was there an obligation to consider the legal consequences of a cancellation decision under s 501(3)?
The question then arises whether the Minister in Taulahi was required to take into account the consequences arising from s 501C in his decision under s 501(3). The answer to that question turns in part on the application of the decision in NBMZ.
The decision of the Full Court in NBMZ
In NBMZ, a Full Court of this Court held that, in making a decision under s 501(1) of the Migration Act, the Minister was required to take into account the legal consequence of the decision, which in that case was the indefinite detention of the visa applicant as a result of the interaction of ss 189, 196 and 198 of the Migration Act and the obligation of non-refoulement in Art 33 of the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951 and the obligation to which it gives rise in domestic law: NBMZ at [16]-[17]. As Allsop CJ and Katzmann J explained:
8… The breadth of the discretion under s 501(1) can be accepted; a broad discretion remains, however, confined by the subject matter, scope and purpose of the Act: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (per Dixon J). The decision of the Minister was made within the framework of the Act. The statutory effect of a decision to refuse a visa is removal of the applicant from the country as soon as practicable, and in the meantime, detention. ...
9The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.
The Court in NBMZ held that the Minister failed to have regard to a consideration that the Minister was bound by law to take into account because he failed to take into account that the visa applicant faced indefinite detention as a legal consequence of refusing his visa application. As a result, the decision was vitiated by jurisdictional error.
NBMZ was relevantly applied by the Full Court in NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [2] and at [107]-[112], delivered on the same day as NBMZ. See also the consideration by the Full Court in Minister for Immigration and Border Protection v Le [2016] FCAFC 120 at [45]-[58] (Allsop CJ, Griffiths and Wigney JJ); Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29 at [104]-[107] (North J); at [124]-[133] (Kenny and Perry JJ); and Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [18]-[20] (Flick, Griffiths and Perry JJ).
The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision. There is no difference in this regard between an exercise of power under s 501(1) of the Migration Act and an exercise of power under s 501(2) or s 501(3): see also AZAFQ v Minister for Immigration and Border Protection [2015] FCA 681 at [11], in which White J applied NBMZ to s 501(2). Furthermore, at a functional level, the human consequences of a decision under each of these three provisions may be equally grave. The difference between them is that the possibility that the Minister may act without regard to a decision’s human implications is more likely under s 501(3) than under s 501(1) and 501(2), because of the absence of a procedural fairness requirement with respect to decisions under s 501(3) (see s 501(5)), with the result that the Minister may lawfully make a decision under s 501(3) without the benefit of any information the visa holder might contribute. It follows that, in making a decision under s 501(3), the Minister is obliged to take into account the direct and immediate statutory consequences of the decision. These consequences include those set out in s 501C, which in terms applies “if the Minister makes a decision under subsection 501(3) ... to ... cancel a visa”.
In written submissions, the Minister contended that NBMZ was distinguishable on the ground that, in referring to “statutory” or “legal” consequences, Allsop CJ and Katzmann J were referring to a particular and non-obvious legal operation of the Migration Act, which was “important in human terms”. This submission is rejected. As already indicated, NBMZ stands for a broader proposition that is applicable in this case. The fact that the legal consequences of a decision may be obvious or that “the applicable legal framework to s 501(3) may be less complex than that considered in NBMZ” (Roach [2016] FCA 750 at [108]) may bear on the question whether the Minister has in fact misconceived the power in question or failed to have regard to the statutory framework in which the decision has been made. The principle for which NBMZ stands does not, however, cease to apply in these circumstances and they do not provide a basis to distinguish NBMZ from the present case.
The Minister also submitted that it would be contrary to the ratio of Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 (Nystrom) to extend the reasoning in NBMZ so as to require the Minister to take into account the obvious legal consequences of a decision. The Minister referred to the High Court’s rejection in that case of the contention that the Minister, in cancelling a transitional (permanent) visa under s 501(2), had erred in failing to have regard to the fact that, by virtue of s 501F(3), the applicant’s absorbed person visa was also cancelled: Nystrom at [40] (Gummow and Hayne JJ) and [129] (Heydon and Crennan JJ). This submission is also rejected. The issue in Nystrom was materially different from that before this Court, because the statutory provisions left “no room for discretion in the matter”: Nystrom at [40] (Gummow and Hayne JJ). In this case, any visa cancellation decision under s 501 involved an exercise of discretion at some level. Further, the issue was not, as the Minister submitted, “whether or not to exercise the discretionary power to cancel a visa” since both s 501(2) and s 501(3) conferred discretionary power to this end. Rather, as explained below, the issue was the failure to take into account the statutory framework in which the decision was made, including the statutory consequences of that decision. Had the proper operation of s 501C been considered, then the Minister might have chosen to proceed under s 501(2) rather than s 501(3): see [94] below. Having regard to this statutory framework, Nystrom does not preclude the application here of the principle in NBMZ.
Consistency of approach with High Court authority
This conclusion is consistent with the decision of the High Court in Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 (Ex parte Taylor), in which Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ held that the Parliamentary Secretary to the Minister had fallen into error in exercising the power conferred by s 501(3) of the Migration Act because she erroneously believed that the affected person would have an opportunity to make representations seeking revocation of her decision, without any consciousness that her power to revoke the cancellation decision could only arise if that person could satisfy her that he passed the character test and, because of his criminal record, it was impossible for him to do so.
In a joint judgment, Gummow and Hayne JJ discussed the resulting jurisdictional error, especially at [194]-[196]. Their Honours wrote:
196In the absence of any evidence providing a further explanation of the reasons, or the parts of the reasons, for the respondent making her cancellation decision of 30 June, it is to be taken that she exercised her discretion under s 501(3) to cancel the prosecutor’s transitional (permanent) visa on an erroneous footing. This is that, if she did cancel the visa, the legislation required there then to be given to the prosecutor, in terms of par 14 of the minute, “an opportunity to make representations seeking revocation of [that] decision”. The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not real exercise of the power conferred by s 501(3). On that footing, prohibition and certiorari properly lay.
The premise for the finding of jurisdictional error here is that, in order for there to be a lawful exercise of a discretionary statutory power, the decision-maker must have regard to the statutory framework in which the provision conferring the power sits. This framework includes the direct and immediate statutory consequences of an exercise of the power.
It is well known that a vitiating error in decision-making may be characterised in more than one way. In Ex parte Taylor, the error with respect to the exercise of power under s 501(3) was characterised as a misconception of the nature of the statutory power, because the decision-maker did not properly appreciate the legal consequences of the decision, having regard to ss 501(6), 501C(3) and 501C(4). In another case, the same kind of error (i.e., a failure to have regard to these legal consequences) might, as in the case of Taulahi, be characterised as a failure to have regard to a consideration that the decision-maker was bound to take into account. The differences in characterisation do not diminish the fact of jurisdictional error in the making of the decision if the statutorily prescribed consequences are not properly understood and taken into account in decision-making under s 501(3).
The reasoning in Roach
In Roach, Perry J accepted that the Minister was bound to consider the applicable statutory framework before refusing a grant of a visa under s 501(3) as opposed to s 501(1). In reaching this conclusion, her Honour applied the reasoning in NBMZ, observing that “[t]he reasons why the Minister in considering the exercise of power in s 501(3) must have regard to the legal consequences prescribed by the Act are no less compelling than for a decision under s 501(1)”: Roach at [103]. Her Honour explained that:
104The legal consequences of an exercise of the power in s 501(3) are not only, as the Minister found, that Mr Roach will be unable to travel to and re-enter Australia because he was overseas at the time of the decision (Minister’s reasons at [19]). When regard is also had to s 501C(4), the legal consequences include the lack of any opportunity for the applicant to make submissions relevant to the exercise of discretion at any stage, including as to the impact of the decision on third parties, notwithstanding the existence of an alternative power to refuse a visa on character grounds which would not have that consequence.
105The no discretion consequences therefore have serious human implications as an applicant might have been able to persuade the Minister relevantly to grant a visa despite not passing the character test and the national interest favouring refusal if the Minister had instead proceeded under s 501(1) and exercised his discretion with the benefit of representations by the applicant. Contrary to the Minister’s submissions, therefore, I do not accept that the legal consequences are so much less serious that those considered in NBMZ as to point against an implication that they are relevant considerations to an exercise of the power under s 501(3) in a jurisdictional sense. ...
106… [A]s a matter of substance, where the Minister exercises the power in s 501(3), she or he makes a choice to adopt an alternative procedure with serious consequences for the individual in terms of her or his capacity to be heard. In this regard, s 501(3) and s 501(1) are alternatives in the sense that the Minister has a discretion even where the criteria in s 501(3)(c) and (d) are met nonetheless not to proceed without notice and to proceed under s 501(1). There is nothing in other words which obliges the Minister to exercise the power in s 501(3) because she or he considers that refusal or cancellation is in the national interest (being the additional criterion present in s 501(3) and not in ss 501(1) and (2)).
Subject to one matter, her Honour was correct that the reasoning in NBMZ supports the proposition that, in exercising power under s 501(3), the Minister must have regard to the statutory consequences of such a decision. It should be added that this is consistent with fundamental principle and the High Court’s decision in Ex parte Taylor.
As Perry J observed, the Minister is not obliged to exercise power under s 501(3), as opposed to s 501(1), simply because the Minister considers that the additional criteria in s 501(3) is satisfied. Further, although it is not necessary to determine whether s 501(2) should be characterised as an alternative to s 501(3), in the sense mentioned by Perry J, it should be noted that this characterisation is in fact consistent with the Department’s submission to the Minister and the Minister’s response to the submission.
In this submission signed and dated by the Minister on 8 April 2016, the Department provided the following:
Recommendations
1. If you decide to consider cancelling Mr TAULAHI’s visa under s 501(3) without natural justice in the national interest, record your decision on, and sign, the decision page at the end of the Issues Paper at Attachment 1
signed /
please discuss2. If you exercise your power under s 501(3) to cancel Mr TAULAHI’s visa, sign the draft Statement of Reasons at Attachment 2 with any amendments you consider necessary.
signed /
not signed / please discuss3. Note that if you decide to cancel Mr TAULAHI’s visa, and he is taken into immigration detention, he will, as required by s 501C, be invited to make representations to you about revocation of your original decision within seven (7) days of notification.
noted /
please discuss4. Note that you may choose to consider Mr TAULAHI’s case under s 501(2) with natural justice, rather than under s 501(3). This would mean that Mr TAULAHI would be given an opportunity to be heard before the taking of cancellation action.
consider s 501(2) /
do not consider s 501(2) / please discussThe Minister responded by circling in pen the words “signed” against recommendations 1 and 2, “noted” against recommendation 3 and “do not consider s 501(2)” against recommendation 4.
Further, it is not in dispute that there was no natural justice requirement where consideration was being given to a decision under s 501(3). Indeed, s 501(5) specifically provided that the rules of natural justice had no application to such a decision. There is nothing in s 501 or in the Minister’s statements of reasons that supports the proposition for which the Applicants contend, that the Minister misunderstood the scope of his power under s 501(3). Section 501 provides no textual support for the proposition that, before exercising power under s 501(3), the Minister is obliged to consider whether to apply the rules of natural justice notwithstanding that s 501(5) specifically provides that they do not apply to a decision under this provision. Further, the proposition that the Minister fell into error by not considering whether to disclose s 503A information is inconsistent with the reasoning of the Court in Vella at [74] (set out at [172] above) and with which this Court agrees. It is evident that the statutory scheme created by s 501 and related provisions, including s 501C, contemplate the disclosure of protected information in the limited circumstances for which provision is made in the Migration Act. Disclosure in accordance with a s 503A(3) declaration requires, amongst other things, consultation with the gazetted agency and gives rise to further statutory protections and prohibitions. It is improbable that, notwithstanding this statutory regime, in making a decision under s 501(3), the Minister could determine to disclose protected information as a natural justice measure, especially when, under this statutory regime, the rules of natural justice were specifically not to apply to a decision of that kind.
Disposition of the third common ground
Accordingly, the Applicants’ submission that the Minister misconstrued the scope of his powers to provide information to Mr Taulahi and Mr Carrascalao in advance of the cancellation decision is rejected and, for this reason, ground 10 in Mr Taulahi’s case and ground 8 in Mr Carrascalao’s case fail.
Mr Carrascalao’s additional ground – the legal nature of a suspended sentence
The additional point relied upon by Mr Carrascalao, but not Mr Taulahi, is ground 6.
In reaching the conclusion to cancel his visa, Mr Carrascalao maintains in this ground that the Minister misunderstood the nature of a suspended sentence.
Ground 6 of Mr Carrascalao’s Amended Originating Application provides as follows:
6.The Minister erred in forming a satisfaction that cancellation was in the national interest because, in forming that satisfaction, he misunderstood the legal nature of the applicant’s sentence issued on 9 May 2007.
Particulars
(i)In forming a satisfaction as to the national interest, the Minister acted on the basis that the applicant had been subject to a “disposition involving incarceration” which was “a last resort in the sentencing hierarchy”.
(ii)The applicant’s sentence was a suspended sentence involving a term of imprisonment.
(iii)A suspended sentence of imprisonment is not the last resort in the sentencing hierarchy; it is at most the penultimate punishment in the hierarchy of sentencing. It is lower in severity than the imposition of imprisonment to be immediately served.
(iv)The Minister misconstrued and misunderstood the legal nature of a suspended sentence.
The resolution of this ground involves consideration of:
·paragraphs [6] and [17] of the Minister’s Statement of Reasons; and
·section 501 of the Migration Act and (potentially) s 12 of the Crimes (Sentencing Procedure) Act1999 (NSW)
Paragraphs [6] and [17] of the Minister’s Statement of Reasons provide as follows (without alteration):
6.On 9 May 2007, Mr CARRASCALAO was convicted in Campbelltown Local Court in New South Wales and was sentenced to a total of twelve months imprisonment, suspended on entering a bond of good behaviour for twelve months for the following offences:
Ÿtwo courts of Drive while Disqualified from Holding a Licence
ŸCommon Assault
ŸContravene Apprehended Domestic Violence Order
ŸMake False Statement to Obtain Money
…
17.In considering the national interest, I considered Mr CARRASCALAO’s substantial criminal record. I noted that dispositions involving incarceration are a last resort in sentencing hierarchy, and as a result I found that the court viewed Mr CARRASCALAO’s offending in 2007 as serious due to his sentence of twelve months imprisonment.
Central to the Applicant’s submissions are two propositions, namely that a suspended sentence:
·is not the disposition of a criminal proceeding involving “incarceration”; and
·is not the “last resort in sentencing hierarchy”.
Neither proposition can be accepted without qualification.
The relevant power exercised by the Campbelltown Local Court when suspending Mr Carrascalao’s sentence of imprisonment is to be found in s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 12(1) provides as follows:
A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:
(a)suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and
(b)directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.
Although it may thus be accepted that a suspended sentence does not result in the incarceration – or “imprisonment” – of an individual, the sentence of imprisonment is suspended “on condition”. To the person being sentenced, the difference may well be of considerable personal importance.
And, although a suspended sentence is in substance different to a sentence of imprisonment which has not been suspended on condition, it can properly be regarded as the “penultimate punishment”.
In Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 the Full Court concluded at [81] and [85] that the delay between the sentencing of Mr Eden and the Minister’s decision to cancel his visa pursuant to s 501 on character grounds was a relevant factor in assessing the reasonableness in the legal sense of the cancellation decision. But in that context, Allsop CJ, Griffiths and Wigney JJ also made the following observations at [73] as to the manner in which the Minister had approached the fact that Mr Eden’s sentence of imprisonment had been suspended:
73As for the apparent suggestion that, by reason of the content of the issues paper or otherwise, the Minister failed to have regard to, or failed to give adequate weight to, the fact that Mr Eden’s sentence of imprisonment was fully suspended, it is clear that the Minister had the sentencing judge’s remarks on sentence before her. The issues paper also clearly indicated that Mr Eden’s sentence was fully suspended. A sentence of imprisonment which is fully suspended is nonetheless a sentence of imprisonment and is regarded as a “very serious form of punishment”: Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at [4] (Rares J, with whom Moore J agreed). It is “treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity than the imposition of imprisonment to be immediately served”: Dinsdale v The Queen (2000) 202 CLR 321 at [77]; see also R v Zamagias [2002] NSWCCA 17 at [22]–[31] (Howie J, with whom Hodgson JA and Levine J agreed). Contrary to the apparent findings of the primary judge, it was open to the Minister to conclude, as she did (at Reasons [15], extracted earlier) that the sentence imposed on Mr Eden was “indicative of the seriousness of his offending”. The fact that the sentence was wholly suspended did not mean that the offence was not very serious.
To construe the Minister’s reasons as not reflecting a proper understanding of the character of a suspended sentence or as not understanding the seriousness of a criminal sentence of imprisonment is to construe the Minister’s reasons with an impermissible “eye keenly attuned to the perception of error” where none truly exists: cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-2 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Minister’s reasons, properly construed, do not expose any misunderstanding on his part as to the character of a suspended sentence. The Minister was simply expressing a conclusion that the sentencing judge viewed Mr Carrascalao’s criminal conduct as “serious”. The reliance sought to be placed by Mr Carrascalao upon the words “incarceration” and “last resort” is misplaced.
Ground 6 is rejected.
Is Mr Stevens an alien or one of the people of the Commonwealth?
Ground 5 of Mr Stevens’ Further Amended Originating Application provides as follows:
Section 501(3) in its application to the Applicant is beyond the power of the Commonwealth Parliament to make laws with respect to “aliens” as the Applicant is one of the “people” referred to in ss 7, 15, 24 and 25 of the Constitution and one of “electors” referred to in ss 8, 30 and 128 of the Constitution.
Ground 6, it may be presently noted, contends (inter alia) that insofar as s 501(3) permits the Minister to act on information which was protected from disclosure under s 503A, s 501(3) infringes Chapter III of the Constitution or should be “read down”. Ground 6 is the counterpart to ground 11 of Mr Taulahi’s proceeding and ground 9 of Mr Carrascalao’s proceeding. All such grounds have been adjourned to await the decision of the High Court.
Ground 5, however, is not understood to be an issue before the High Court. There is thus no impediment to that ground being now resolved.
The reference in ground 5 to “the power to make laws with respect to ‘aliens’…” is a reference to s 51(xix) of the Constitution.
The constitutional source of power to make laws with respect to migration has shifted from an earlier reliance upon s 51(xxvii) (cf. Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 81 to 82 per Isaacs J) to s 51(xix) (cf. Ex parte Taylor at [245] to [247] per Gummow and Hayne JJ). Those two provisions are as follows:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
…
(xix) naturalization and aliens;
…
(xxvii) immigration and emigration;
Sections 7, 15, 24 and 25 of the Constitution referred to in ground 5 provide in relevant part as follows:
The Senate
7.The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate…
Casual vacancies
15. ….
Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party …
Constitution of House of Representatives
24.The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators …
Provision as to races disqualified from voting
25.For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.
Ground 5 of Mr Stevens’ Further Amended Originating Application cannot succeed in this Court. This is primarily because the decision of the High Court of Australia in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 (Shaw) requires this Court to hold that Mr Stevens is an alien for the purposes of s 51(xix) of the Constitution and that s 501(3) is a valid exercise of the power conferred on the Commonwealth Parliament by s 51(xix) of the Constitution to make laws with respect to aliens.
As noted above, Mr Stevens was born in the United Kingdom, arrived in Australia as a child in 1971, and settled in Australia with his family. He has lived in Australia all his adult life. He has not, however, acquired Australian citizenship under the Australian Citizenship Act 1948 (Cth) (or the Australian Citizenship Act 2007 (Cth)). At the time the Minister decided to cancel his visa pursuant to s 501(3)(b) of the Migration Act, he held a Class BB Subclass 155 Five Year Resident Return visa.
Mr Stevens relied on the fact (and the Minister did not dispute) that, since his eighteenth birthday, he had been enrolled to vote in State and Federal elections and had voted in those elections. Mr Stevens contended that these circumstances distinguished his case from Shaw. A similar proposition has been considered and rejected in Cayzer v Minister for Immigration and Border Protection [2016] FCAFC 176 (Cayzer). Similarly to the appellant in Cayzer, Mr Stevens submitted that he was one of the “people of the Commonwealth” in s 24 and one of the “people” referred to in ss 7, 15 and 25 of the Constitution. He also submitted that he was one of the “electors” for the purpose of ss 8, 30 and 128 of the Constitution.
There were possibly two aspects to the argument advanced on behalf of Mr Stevens in the written submissions prepared by Mr Roder SC and Dr Gray of counsel (neither of whom appeared at the hearing before the Full Court). The first was that s 501(3) impermissibly burdened the franchise and was not therefore supported by s 51(xix) of the Constitution. The second was that, for related reasons, Mr Stevens could not be lawfully removed from Australia as an “unlawful non-citizen” within s 14 of the Migration Act because of his status as one of the “people of the Commonwealth”. These submissions contended that:
21.The impugned provisions, in the case at bar, cannot be characterised as a law with respect to “aliens” as upon close scrutiny of this law it is clear that the criteria for the exclusion of the “alien” without natural justice and without regard to the status of the adult as one of the “people of the Commonwealth” indicates that the law is disproportionate or arbitrary to the regulation of “aliens” such that it could not be properly characterised as a law with respect to “aliens”.
...
24.The Applicant’s status as ... one of the “people” referred to in ss 7, 15, 24, and 25 of the Constitution and one of the “electors” referred to in ss 8, 30 and 128 of the Constitution has the consequence that the Applicant cannot be considered to be an “unlawful non-citizen” for the purposes of section 14 of the Act or at least cannot validly be subject to a law such as section 501(3) unless it is reasonably appropriate and adapted.
...
26.… [T]he provisions of section 501(3) were not reasonably appropriate and adapted as they applied to an “elector” and as one of “the people” such as the Applicant and are therefore invalid in so far as they apply to an “elector” or “the people”.
Mr Stevens adopted these submissions at the hearing.
It is convenient at this point to refer to the analysis in Cayzer which considered and rejected the proposition that s 501(2) of the Migration Act was an invalid exercise of the power conferred on the Parliament by s 51(xix) in its application to Mr Cayzer, who, like Mr Stevens, was born in the United Kingdom, arrived in Australia as a child and has lived here ever since without acquiring citizenship under the Australian citizenship legislation. Like Mr Stevens, Mr Cayzer had voted in elections and contended that, on this account, he was one of the “people of the Commonwealth” in s 24 of the Constitution.
The argument advanced in this case, like that advanced for Mr Cayzer, cannot succeed in this Court because the decision in Shaw is binding on this Court. In Shaw the High Court held, by a majority, that the power conferred on the Parliament by s 51(xix) of the Constitution, to make laws with respect to “naturalization and aliens”, supported s 501(2) of the Migration Act in so far as it authorised the Minister to cancel Mr Shaw’s visa in 2001. Gleeson CJ, Gummow and Hayne JJ commenced by observing that:
2The power conferred by s 51(xix) supports legislation determining those to whom is attributed the status of alien; the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons. On the other hand, by a law with respect to naturalisation, the Parliament may remove that status, absolutely or upon conditions. In this way, citizenship may be seen as the obverse of the status of alienage.
(Citation omitted.)
The majority (Gleeson CJ, Gummow and Hayne JJ, and, separately, Heydon J) held that Mr Shaw, who was a British subject born to British parents in the United Kingdom in 1972 and who had arrived in Australia in 1974, was properly classified as an alien for the purposes of s 51(xix), since he had not become an Australian citizen pursuant to the Australian Citizenship Act 1948 (Cth). In their joint judgment, Gleeson CJ, Gummow and Hayne JJ stated:
31The conclusion reached is that the applicant entered Australia as an alien in the constitutional sense. Re Minister for Immigration and Multicultural Affairs; Ex parte Te [(2002) 212 CLR 162] establishes that, this being so, he did not lose that status by reason of his subsequent personal history in this country. Upon cancellation of his visa, he became an “unlawful non-citizen” within the meaning of the Act.
32This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised. The scope of any earlier operation of the power does not fall for consideration. However, it may be observed that, like the other powers of the Parliament, s 51(xix) is not to be given any meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application in some future law.
The result was that, when the Minister cancelled Mr Shaw’s visa pursuant to s 501(2) of the Migration Act, he became an “unlawful non-citizen” within the meaning of that Act and liable to be deported.
As was observed in Cayzer:
9The decision of the majority in Shaw was consistent with the earlier decision of the High Court in Nolan v Minister of State for Immigration and Ethnic Affairs [1988] HCA 45; 165 CLR 178, in which Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ approved the statement of Gibbs CJ in Pochi v Macphee [1982] HCA 60; 151 CLR 101 at 109-110 to the effect that a person born out of Australia of parents who were not Australian citizens and who was not naturalized would generally be an alien within s 51(xix) of the Constitution.
10Although strong dissenting judgments were delivered by Gaudron J in Nolan 165 CLR 178 (at 187 and following); and by McHugh J, Kirby J and Callinan J (each writing separately) in Shaw 218 CLR 28 (from [41], from [54] and from [129] respectively), this does not diminish the binding force of the decisions of the majority in this Court.
As in Cayzer, the written submissions filed for Mr Stevens acknowledged that arguments to this effect could not succeed in this Court unless this Court were persuaded that Shaw ought to be distinguished. As in Cayzer, it is not considered that Shaw can be distinguished from the present case on any of the bases proposed in Mr Stevens’ case.
In so far as the argument that s 501(3) is not a law with respect to aliens flows from the proposition that a person who is one of the “people of the Commonwealth” (or one of the “people”) or an “elector” cannot be an alien, this proposition is rejected as inconsistent with Shaw. It also finds no support in Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162 (Ex parte Te), Ex parte Taylor, or Nolan v Minister of State for Immigration and Ethnic Affairs [1988] HCA 45; 165 CLR 178. It is, moreover, established that a person cannot cease to be an alien for the purposes of s 51(xix) by absorption into the community: see, for example, Cunliffe v Commonwealth [1994] HCA 44; 182 CLR 272 at 295 (Mason CJ); Ex parte Te at [42] (Gleeson CJ), [112] (Gummow J) and [211] (Hayne J); and Pochi v Macphee [1982] HCA 60; 151 CLR 101 at 111 (Gibbs CJ).
A law will be “with respect to ... aliens” within s 51(xix) if its practical and legal operation reveals a sufficient connection between the law and the subject matter of the head of power – in this case, aliens: see, for example, Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [22]-[23] (Plaintiff S156/2013); and Grain Pool of Western Australia v Commonwealth [2000] HCA 14; 202 CLR 479 at [16] (Grain Pool). Since s 501(3) operates directly on a person who is an alien and therefore on a matter that is part of the subject of s 51(xix), its validity cannot be denied on the ground of lack of connection or irrelevance: Plaintiff S156/2013 at [24]-[25]; and Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 90 ALJR 297 at [42], [77], [182] and [259]. In Plaintiff S156/2013 at [36], the High Court specifically held that a proportionality analysis is not part of the inquiry in the context of the aliens power. Mr Stevens’ submissions to the effect that s 501(3) cannot be characterised as a law with respect to aliens because the law “is disproportionate or arbitrary to the regulation of ‘aliens’” must fail on this account. It may also fail on the basis that providing a law has a sufficient connection with the head of power, “it will be valid notwithstanding that there is no independent connection between the two subject matters”: see Grain Pool at [16].
The conclusion that Mr Stevens must be an alien for the purposes of s 51(xix) of the Constitution provides a sufficient basis to conclude that, in its operation upon him, s 501(3) of the Migration Act is a valid law, whether or not it can also be characterised as a law with respect to another subject of Commonwealth legislative power.
As indicated above, the other aspect of Mr Stevens’ argument focussed on his status as one of the “people of the Commonwealth” in s 24 and one of the “people” referred to in ss 7, 15 and 25 of the Constitution. The Minister made the point in written submissions that Mr Stevens’ argument on this point depended on factual matters leading to exclusion from the franchise that have not yet eventuated and indeed may never eventuate. This submission is accepted. There was no evidence before the Court that a necessary consequence of Mr Stevens’ removal from Australia would be to “permanently exclude his right or ability to vote” as Mr Stevens’ written submissions suggested. In any event, if circumstances were to arise in which Mr Stevens was excluded from the franchise, then the provisions at issue in any resulting constitutional challenge would most likely be the provisions of the Commonwealth Electoral Act 1918 (Cth) that were said to effect disenfranchisement, rather than s 501(3) of the Migration Act. Section 501(3) does not in terms operate so as to exclude anyone from the franchise; and, as previously noted, there was no evidence that disenfranchisement was a necessary consequence of Mr Stevens’ removal from Australia.
There is a further difficulty with this aspect of Mr Stevens’ argument. The Minister submitted that, even if a non-citizen might be one of the “people of the Commonwealth” in s 24, one of the “people” within ss 7, 15 and 25 and an “elector” within ss 8, 30 and 128 of the Constitution, the fact that such a person is not a citizen would provide a sufficient basis for the Parliament to decide not to confer the franchise on him or her, or to withdraw the franchise from him or her. Although it is unnecessary to rule on this point, the Minister’s submission may well be correct. It is consistent with the statement by Gleeson CJ in Roach v Electoral Commissioner [2007] HCA 43; 233 CLR 162 that:
8It is difficult to accept that Parliament could now disenfranchise people on the ground of adherence to a particular religion. It could not, as it were, reverse Catholic emancipation. Ordinarily there would be no rational connection between religious faith and exclusion from that aspect of community membership involved in participation, by voting, in the electoral process. It is easy to multiply examples of possible forms of disenfranchisement that would be identified readily as inconsistent with choice by the people, but other possible examples might be more doubtful. An arbitrary exception would be inconsistent with choice by the people. There would need to be some rationale for the exception; the definition of the excluded class or group would need to have a rational connection with the identification of community membership or with the capacity to exercise free choice. Citizenship, itself, could be a basis for discriminating between those who will and those who will not be permitted to vote. Citizens, being people who have been recognised as formal members of the community, would, if deprived temporarily of the right to vote, be excluded from the right to participate in the political life of the community in a most basic way. The rational connection between such exclusion and the identification of community membership for the purpose of the franchise might be found in conduct which manifests such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right.
(Citation omitted; emphasis added)
See also Rowe v Electoral Commissioner [2010] HCA 46; 243 CLR 1 at [18], [22] (French CJ) and Murphy v Electoral Commissioner [2016] HCA 36; 334 ALR 369 at [33] (French CJ and Bell J); [61]-[62] (Kiefel J); [183], [206] (Keane J). Shaw would be decisive at this point because Mr Stevens’ status as an alien would be a sufficient constitutional basis for the Commonwealth Parliament to exclude him from the franchise.
Finally, as indicated in the decision in Cayzer the decision of the High Court in R v Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254 (Ex parte Sipka) makes it impossible to hold in this Court that s 41 of the Constitution gives rise to a constitutionally-protected right in the applicant to vote at federal elections: see Cayzer at [14]-[17]. Mr Stevens’ argument did not invoke s 41 of the Constitution and did not address Ex parte Sipka. As explained in Cayzer it is clear enough that Ex parte Sipka would preclude this Court from holding that s 41 gave rise to a constitutionally-protected right in Mr Stevens to vote at Federal elections.
For the foregoing reasons, Mr Stevens has not shown any reasonable basis for distinguishing Shaw from his case. It follows that the decision in Shaw is binding on this Court and that ground 5 of Mr Stevens’ Further Amended Originating Application must fail. The power conferred on the Parliament by s 51(xix) of the Constitution, to make laws with respect to “naturalization and aliens”, supports s 501(3) of the Migration Act in so far as it authorised the Minister to cancel Mr Stevens’ visa.
CONCLUSIONS
In view of the reasons above, it is considered appropriate to make orders in the cases of both Mr Taulahi and Mr Carrascalao which have the effect of setting aside the Minister’s decisions to cancel each of their visas and to order that each of them be released immediately from immigration detention.
In both these matters, the parties should seek to agree additional orders which give effect to these reasons, including as to costs, and also address the need for the Court to determine and give reasons for judgment in respect of the remaining grounds of review. They should do so within five business days hereof and, if they cannot agree additional orders, each should file and serve within that period their respective proposed orders together with written submissions in support which are not to exceed three pages. It is proposed that final orders will then be made in both these matters without the need for a further hearing.
Mr Stevens has failed on ground 5, which was one of the two grounds of his Further Amended Originating Application before this Court. The other ground before this Full Court was ground 6. This ground is yet to be determined, pending the decisions of the High Court in other cases raising the same issue. Ground 3 of Mr Stevens’ application also remains unresolved. Charlesworth J adjourned the hearing of ground 3 to a date to be fixed following the delivery of the reasons of this Court in respect of grounds 5 and 6, on the basis that ground 3 raised a point of construction that was likely to fall for consideration in the disposition of grounds 5 and 6. In view of the fact that there are now two cases in the High Court raising much the same issue as ground 6, it appears that there is no longer any reason for ground 6 to be determined by the Full Court. In the circumstances that have since unfolded, it seems that it would be preferable for steps to be taken so that Charlesworth J can, in due course, hear and determine ground 6, as well as the other remaining ground 3. The Court proposes to recommend to the Chief Justice that appropriate steps be taken to provide for this to happen. It may be that part of the determination previously made by the Chief Justice under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) should be revoked: see Acts Interpretation Act 1901 (Cth), s 33. Once grounds 3 and 6 have been heard and determined by Charlesworth J, her Honour will then be in a position to make final orders on Mr Stevens’ application, having regard to her Honour’s earlier reasons for judgment in Stevens, the reasons of this Court relating to Mr Stevens’ ground 5, the reasons of the High Court in the other cases raising the same issue as in ground 6, and her Honour’s reasons in respect of grounds 3 and 6. In case a party has a contrary view, the Court will grant liberty to file submissions as to whether the hearing and determination of ground 6 should proceed before Charlesworth J or this Full Court. Any such submissions are to be filed no later than 4 pm on 22 December 2016. A copy of any such submissions will be conveyed to the Chief Justice. Provision will also be made for the parties to file submissions as to costs.
I certify that the preceding two hundred and nine (209) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Flick and Griffiths. Associate:
Dated: 14 December 2016
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