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Getting Rid of Risky Foreigners: Promoting Community Protection at the Expense of Administrative Justice?

Published online by Cambridge University Press:  01 January 2025

Peter Billings
Peter Billings*
Affiliation:
TC Beirne School of Law, The University of Queensland
*
The author can be contacted at p.billings@law.uq.edu.au.
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Abstract

This article offers a critical analysis of the norms, policy, procedures and outcomes associated with contemporary decision-making under the ‘character test’ per Migration Act 1958 (Cth) s 501. Of late there has been a steep increase in the number of visa refusals and cancellations on adverse character grounds due to the convergence of a reformulated character test and single-minded, authoritarian, administration by ministerial office-holders. This article teases out the significant and, arguably, adverse consequences for the quality of administrative justice of ministerial control over visa decisions absent independent administrative review. It is argued that the integrity of ministerial decision-making and the legitimacy of outcomes are dubious. This is because the process of identifying and balancing the important countervailing community interests and individual (human) rights, in the course of reaching the preferable decision, does not appear to be carried out in a detached, proper and genuine manner, pursuant to rational and intelligible reasoning processes. In conclusion, when viewed holistically, the judicial decisions analysed in this article suggest that the unwavering pursuit of community protection has come at a significant adverse cost to administrative justice and, necessarily, to individuals/families who bear the harsh consequences.

Type
Articles
Information
Federal Law Review , Volume 47 , Issue 2 , June 2019 , pp. 231 - 260
Copyright
Copyright © 2019 The Author(s)

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Footnotes

I thank Professor Simon Young and the peer reviewers for their constructive comments on earlier drafts of this article and Kirra Uren for her excellent research assistance.

References

Notes

1. Peter Dutton, ‘No Place for Foreign Criminals’ (Media Release, 21 May 2015) <https://minister.homeaffairs.gov.au/peterdutton/2015/Pages/no-place-for-foreign-criminals.aspx>.

2. The character test is a good illustration of ‘crimmigration’. See, Juliet P Stumpf, ‘Crimmigration: Encountering the Leviathan’ in Sharon Pickering and Julie Ham (eds), The Routledge Handbook on Crime and International Migration (Routledge, 2015) 237; Peter Billings, ‘Regulating Crimmigrants Through the “Character Test”‘: Exploring the Consequences of Mandatory Visa Cancellation for the Fundamental Rights of Non-Citizens in Australia’ (2019) 79(1) Crime Law and Social Change 1.

3. See Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) schs 1–2.

4. Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Migration Amendment (Character and General Visa Cancellation) Bill 2014 [Provisions] (November 2014) [2.10]; Colin Neave, ‘The Administration of Section 501 of The Migration Act 1958’ (Report No 08, Commonwealth Ombudsman, 21 December 2016) 22 [61].

5. Department of Home Affairs, Australian Government, Visa Statistics <http://www.homeaffairs.gov.au/research-and-statistics/statistics/visa-statistics/visa-cancellation> (character cancellation and refusal figures current to 30 June 2018).

6. Mandatory visa cancellation powers account for the rise in visa cancellations and constitute the majority of s 501 cancellations. See Joint Standing Committee on Migration, Parliament of Australia, No One Teaches You to Become an Australian: Report of the Inquiry Into Migrant Settlement Outcomes (2017) 151-2.

7. See, eg, Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70–1 [61] (The Court).

8. Martin v Minister for Immigration and Border Protection [2017] FCA 1 (3 January 2017) [11] (Katzmann J); Neave, above n 4, 3 [1.4], detailing 153 days as the average processing period for challenges to mandatory visa cancellation.

9. Commonwealth, Parliamentary Debates, House of Representatives, 24 September 2014, 10 325–7 (Scott Morrison).

10. Michael Adler, ‘Understanding and Analysing Administrative Justice’ in Michael Adler (ed), Administrative Justice in Context (Hart Publishing, 2010) 129. Administrative justice captures ‘normative standards of general application to administrative decision-making’ (Chief Justice Robert French, ‘Administrative Justice — Words in Search of Meaning’ (Speech delivered at the Australian Institute of Administrative Law Annual Conference, Sydney, 22 July 2010) 6 <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj22july10.pdf>. The Hon Robert French identified lawfulness, rationality (qua logical decisions) procedural fairness and intelligibility as the ‘bare bones’ of administrative justice, elements which are referable to judicial review criteria. Further, he identified consistency, efficiency, timeliness and accessibility and affordability as other basic aspects of administrative justice. French also stressed the importance of merits review as a distinct element of administrative justice. Also, see generally, Sir Anthony Mason, ‘Delivering Administrative Justice: Looking Back with Pride, Moving Forward with Concern’ (2010) 64 Australian Institute of Administrative Law Forum 4.

11. In authorising and administering s 501 powers, neither Parliament nor the executive is, formally, imposing additional punishment on individuals (see Falzon v Minister for Immigration and Border Protection (2018) 92 ALJR 701, 201, 210–11 [47]–[48] (Kiefel CJ, Bell, Keane and Edelman JJ), 216 [89] (Gageler and Gordon JJ), 217 [93]–[94] (Nettle J) (‘Falzon’), deciding that s 501(3A) — mandatory visa cancellation and consequent detention — did not constitute punishment).

12. See, eg, Amy Nethery, ‘Partialism, Executive Control, and the Deportation of Permanent Residents from Australia’ (2012) 18(6) Population, Space and Place 729; Michael Grewcock, ‘Reinventing “the Stain”: Bad Character and Criminal Deportation in Contemporary Australia’ in Sharon Pickering and Julie Ham (eds), The Routledge Handbook on Crime and International Migration (Routledge, 2015) 121; Aaron Moss, ‘“Risk of Harm”, Relevant Considerations and s 501: Wrangling the Minister’s Discretion’ (2017) 91(4) Australian Law Journal 268.

13. See Robyn Creyke and John McMillan, ‘Administrative Justice — The Concept Emerges’ in Robyn Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (Australian Institute of Administrative Law, 2000) 1, 3–4, who refer to administrative justice as a philosophy that the rights and interests of individuals should be safeguarded properly in administrative decision-making. See also Robyn Creyke, ‘Administrative Justice — Towards Integrity in Government’ (2007) 31(3) Melbourne University Law Review 705. In this article, I adopt a model of administrative justice that focuses on the plight of the individual and revolves around giving them a fair opportunity to realise their human rights and protect their interests. The individualised focus is warranted, in this adjudicative context, due to the profound and often irreversible consequences flowing from s 501 decisions for non-citizens and family members living in Australia.

14. See Simon Halliday and Colin Scott, ‘A Cultural Analysis of Administrative Justice’ in Michael Adler (ed), Administrative Justice in Context (Hart Publishing, 2010) 183, 184.

15. Minister for Immigration, Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, 591 [65]–[66] (Gummow and Hayne JJ) (‘Nystrom’).

16. Grewcock, above n 12, 124–5.

17. Stevens v Minister for Immigration and Border Protection [2016] FCA 1280 (2 November 2016) [56] (Charlesworth J) (‘Stevens’).

18. Stevens [2016] FCA 1280 (2 November 2016) [57] (Charlesworth J).

19. Goldie v Commonwealth (2002) 117 FCR 566, 568–9 [4]–[6] (Gray and Lee JJ), cited in Okwume v Commonwealth [2016] FCA 1252 (24 October 2016) [119] (Charlesworth J).

20. Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, 182 [145] (The Court) (‘Taulahi’).

21. Taulahi (2016) 246 FCR 146, 182 [146]; Re Patterson; ex parte Taylor (2001) 207 CLR 391, 418–19 [78]–[80] (Gaudron J) (‘Re Patterson’); see Gabrielle Appleby and Alexander Reilly, ‘Unveiling the Public Interest: The Parameters of Executive Discretion in Australian Migration Legislation’ (2017) 28 Public Law Review 293, 298–300.

22. Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 390 [156] (The Court) (‘Carrascalao’).

23. Re Patterson (2001) 207 CLR 391. Whether the Minister had attained the requisite state of satisfaction was a ‘jurisdictional fact’: at 502 [330]–[331] (Kirby J), quoted in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326, 352 [88] (The Court) (‘Madafferi’).

24. Re Patterson (2001) 207 CLR 391, 419 [80] (Gaudron J).

25. See Joanne Kinslor and James English, ‘Decision-Making in the National Interest?’ (2015) 79 Australian Institute of Administrative Law Forum 35, 43.

26. Carrascalao (2017) 252 FCR 352, 391 [158] (The Court), citing Leiataua v Minister for Immigration and Citizenship (2012) 208 FCR 448, 457 [21] (Jessup J) — a case concerning the national interest test in s 501A(2) (ministerial veto power).

27. Madafferi (2002) 118 FCR 326, 352 [86] (The Court).

28. See, eg, Migration Act 1958 (Cth) s 501(6)(b) (‘Migration Act’) discussed below.

29. Migration Act s 501(6)(a), as defined by s 501(7).

30. Ibid s 501(6)(7)(c).

31. Parliamentary Joint Committee on Human Rights, Parliament of Australia, Human Rights Scrutiny Report — Nineteenth Report of the 44th Parliament (2015) 13–25.

32. Migration Act ss 501(6)(a), 501 (7)(d).

33. Ibid ss 501(6)(a), 7(e)–(f).

34. Ibid s 501(6)(b).

35. Ibid s 501(ba).

36. The risk must be real and not remote (KLLV v Minister for Immigration and Border Protection [2016] AATA 896 (11 November 2016) [51] (Senior member Egon Fice)).

37. Migration Act s 501(6)(e)–(h).

38. Eden v Minister for Immigration and Border Protection [2015] FCA 780 (24 July 2015) [25] (Logan J).

39. Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, 447 [130] (The Court) (‘Haneef’).

40. Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws, Report No 129 (2015) 163–6 [6.13]–[6.27], 184–5 [6.125]–[6.132].

41. Roach v Minister for Immigration and Border Protection [2016] FCA 750 (24 June 2016) [136] (Perry J) (‘Roach’); Mrishaj v Minister for Immigration and Border Protection (2016) 247 FCR 224, 231–2 [35]–[36] (Besanko J).

42. Roach [2016] FCA 750 (24 June 2016) [141] (Perry J).

43. Stevens [2016] FCA 1280 (2 November 2016) [102] (Charlesworth J). On the breadth of s 501(6)(b), see Parliamentary Joint Committee on Human Rights, above n 31, 23.

44. Stevens [2016] FCA 1280 (2 November 2016) [128] (Charlesworth J).

45. Taulahi (2016) 246 FCR 146, 182 [145] (The Court) (emphasis added).

46. In Falzon (2018) 92 ALJR 201, 210–11 [45]–[48] (Kiefel CJ, Bell, Keane and Edelman JJ), the validity of s 501(3A) was upheld because the provision did not amount to an executive power to inflict punishment contrary to ch III Constitution.

47. Mandatory visa cancellation also captures non-citizens who have been convicted, had a charge proven or have been found guilty of a sexually based crime involving a child (Migration Act 1958 ss 501(3A)(a)(ii), 501(6)(a) (‘substantial criminal record’), 501(7)(a)–(c)).

48. Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 173–4 [73] (The Court) (‘Eden’).

49. Commonwealth, Parliamentary Debates, House of Representatives, 24 September 2014, 10328 (Scott Morrison).

50. Migration Act s 500(1)(b), subject to s 500(4A) which excludes visa decisions based on national security grounds and mandatory visa cancellation decisions from review. The Joint Standing Committee on Migration conducted an inquiry into (inter alia) the efficiency of merits review (Joint Standing Committee on Migration, Parliament of Australia, Review Processes Associated with Visa Cancellations Made on Criminal Ground (2018). At the time of writing, submissions had closed and the Committee had not reported). This inquiry followed public criticism by Ministers of certain visa decisions made by the AAT. In turn, this elicited a measured reproach from Logan J in Singh v Minister for Immigration and Border Protection [2017] AATA 850 (16 June 2017) [17]–[18] and the Law Council of Australia (Law Council of Australia, ‘Minister’s Comments Attacking Independence of Tribunal Were Unfortunate, Should Not Be Repeated’ (Media release, 17 May 2017)) <https://www.lawcouncil.asn.au/media/media-releases/minister-s-comments-attacking-independence-of-tribunal-were-unfortunate--should-not-be-repeated>).

51. Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1229, 1231 (Philip Ruddock); Re Patterson (2001) 207 CLR 391, 500–1 [326]–[327] (Kirby J).

52. Roach [2016] FCA 750 (24 June 2016) [93] (Perry J).

53. In this article, ‘natural justice’ and ‘procedural fairness’ are used synonymously.

54. Migration Act s 501C.

55. Migration Act s 501CA. This provision is worded differently to s 501C, and those differences have important consequences for the procedures’ utility (see further below).

56. Migration Act s 501A; and s 501B, which permits the Minister to substitute a delegate’s visa refusal or cancellation decision with their own refusal or cancellation decision. The powers to override AAT decisions were justified on the basis that the tribunal had made several decisions that were ‘clearly at odds with community standards and expectations’ (Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1231 (P1232 (Philip Ruddock)).

57. Jessica Marszalek, ‘Immigration Minister Scott Morrison to Personally Decide Visa Cancellations’, Herald Sun (online), 13 January 2014, <https://www.heraldsun.com.au/news/victoria/immigration-minister-scott-morrison-to-personally-decide-visa-cancellations/news-story/418566148cc1075f760025e3ac3b4ca0>. See also Lauren Bull et al, Playing God: The Immigration Minister’s Unrestrained Power (2017) <https://libertyvictoria.org.au/sites/default/files/LibertyVictoriaRAP_report_PlayingGodTheImmigrationMinistersUnrestrainedPower20170504_0.pdf>.

58. Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 [Provisions] (2011) 14 [3.23], citing DIAC Submission 16, p 37.

59. Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Estimates (Additional Budget Estimates) Immigration and Citizenship Portfolio (2008) 31.

60. Matthew Groves, ‘Administrative Justice in Australian Administrative Law’ (2011) 66 Australian Institute of Administrative Law Forum 18, 20–1.

61. Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209, 223 [72] (Bromwich J) (‘Bochenski’), citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 533 [78], 539 [102], 564–5 [187], 583–4 [245] (‘Jia Legeng’).

62. Le v Minister for Immigration and Border Protection (2015) 237 FCR 516, 523 [24] (‘Le’).

63. NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, 4 [6] (Allsop CJ and Katzmann J) (‘NBMZ’); Bochenski (2017) 250 FCR 209, 224 [79] (Bromwich J).

64. The Ministerial Direction (issued by the Minister under s 499 of the Act) provides a transparent framework for the weighing up of countervailing considerations relevant to the exercise of discretionary power under s 501 and revocation of mandatory cancellation decisions under s 501CA. The case law suggests that ministerial reasons are informed by the Direction.

65. Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510, 521 [41] (Griffiths and Perry JJ), 524 [53] (Mortimer J agreeing). Government policy gives limited effect to certain human rights (Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504, 520 [79] (Barker J), 524 [103] (Perry J) considering Ministerial Direction No 55). See Ministerial Direction No 65 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (22 December 2014).

66. Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, 120 [14] (Mortimer J).

67. Migration Act s 500(1)(b). The adverse — procedural and substantive — consequences for non-citizens subject to ministerial decisions, under s 501(3), were canvassed in Roach [2016] FCA 750 (24 June 2016) [90]–[94] (Perry J).

68. Tribunal oversight supplies a degree of scrutiny over the merits of decisions beyond the capacity of individual Ministers with demanding portfolios. The AAT promotes good governance as ‘part of an administrative decision-making continuum’ (Singh [2017] AATA 850 (16 June 2017) [19] (Logan J)).

69. See eg, AIN17 v Minister for Immigration and Border Protection [2017] FCA 907 (8 August 2017) [45] (Barker J).

70. Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, 10 [26] (Allsop CJ), 24–5 [70] (Griffiths J) (‘Stretton’); Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23, 32 [31] (The Court), noting that references to ‘privilege’ in a Statement of Reasons are to be construed as considerations of government policy, not legal principles.

71. See, eg, Stretton (2016) 237 FCR 1, 6 [15] (Allsop CJ); AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451, 452–3 [1] (The Court).

72. YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (7 November 2017) [1] (Mortimer J).

73. Applicant M117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 (5 December 2008) [45] (Kenny J) in respect of s 501(3); WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292, 305 [61] (Barker J) regarding s 501(1).

74. Stretton (2016) 237 FCR 1, 6 [15] (Allsop CJ), 26 [75] (Griffiths J) referring to s 501(2); Eden (2016) 240 FCR 158, 162 [16] (The Court).

75. Stretton (2016) 237 FCR 1, 6 [15] (Allsop CJ), 26 [75] (Griffiths J).

76. NBMZ (2014) 220 FCR 1, 4 [6] (Allsop CJ and Katzmann J).

77. Graham v Minister for Immigration and Border Protection (2017) 91 ALJR 890, 904 [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) (‘Graham’); Gbojeuh v Minister for Immigration and Citizenship (2012) 202 FCR 417, 426 [43]–[44] (Bromberg J) (‘Gbojeuh’).

78. Where the Minister acts personally and without prior notice under s 501(3) and s 501A(3) — instead, revocation procedures under s 501C and s 501CA apply.

79. Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70 [60] (The Court).

80. Mehta v Minister for Immigration and Border Protection (2015) 238 FCR 439, 448 [36]–[37] (Murphy J). See Moss, above n 12, for a note on the case law current to September 2016.

81. Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81, 87 [24] (Charlesworth J), 83 [1]–[2] (Flick and Perry JJ concurring) (‘Muggeridge’).

82. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J) (‘Peko’).

83. Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 456 [151] (‘Tanielu’). Cf Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 525 [37] (The Court) (‘Ayoub’).

84. Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367, 380 [58] (Rangiah J), 368 [1] (North J, agreeing) (‘Moana’).

85. Ibid 382–3 [70]–[71]. See Joel Townsend, ‘Adequacy of Risk Assessment in Exercise of the Character Cancellation Power Under the Migration Act 1958 (Cth)’ (2017) 28 Public Law Review 158, 168–71.

86. Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, 522–3 [71]–[76] (Kiefel and Bennett JJ) (‘Huynh’), cited in Moana (2015) 230 FCR 367, 383 [73] (Rangiah J). See Minister for Immigration, Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, 606 [127]–[128] (Heydon and Crennan JJ) (‘Nystrom’).

87. Moana (2015) 230 FCR 367, 383 [74] (Rangiah J), citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ).

88. Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499, 513 [61] (Wigney J) (‘Te Puke’).

89. Muggeridge (2017) 255 FCR 81, 88–9 [29]–[30] (Charlesworth J), 83 [1]–[2] (Flick and Perry JJ concurring).

90. Ayoub (2015) 231 FCR 513, 522–5 [33]–[37], [39]–[41] (The Court).

91. Berryman v Minister for Immigration and Border Protection (2015) 235 FCR 429, 433–6 [20], 437 [26] (Flick J) (‘Berryman’).

92. Ayoub (2015) 231 FCR 513, 527 [44] (The Court); Brown v Minister for Immigration (2015) 235 FCR 88, (‘Brown’), 98 [41] (The Court); AZAFQ (2016) 243 FCR 451, 469 [55] (The Court).

93. Ayoub (2015) 231 FCR 513, 527 [45]–[46].

94. Folau v Minister for Immigration and Border Protection (2017) 256 FCR 455, 466 [32] (Collier J), 470 [62] (Murphy and Burley JJ agreeing).

95. Muggeridge (2017) 255 FCR 81, 88 [27] (Charlesworth J), 83 [1]–[2] (Flick and Perry JJ concurring)

96. Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 (15 September 2015) [22]–[23] (The Court) (‘Roesner’); SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 (16 November 2015) [18] (The Court); Brown (2015) 235 FCR 88, 97 [38] (The Court); AZAFQ (2016) 243 FCR 451, 469 [54] (The Court); Muggeridge (2017) 255 FCR 81, 88–9 [30] (Charlesworth J), 83 [1]–[2] (Flick and Perry JJ concurring).

97. Roach [2016] FCA 750 (24 June 2016) [80]. Cf Stevens (2016) 153 ALD 346 [57]–[58] (Charlesworth J) finding that principles established in Moana had to be modified because the threshold criteria in s 501(3) were different — a lesser state of mind is required under s 501(3)(c).

98. Roach [2016] FCA 750 (24 June 2016) [10].

99. Gbojeuh (2012) 202 FCR 417, 427 [45].

100. Ibid [50].

101. Roach [2016] FCA 750 (24 June 2016) [103]. For a critical discussion of Roach and the character test, see Anja Hilkemeijer, ‘Arbitrary Ministerial Power Under the Migration Act: Permanent Residents Beware!’ (2017) 42(3) Alternative Law Journal 221.

102. Hooton v Minister for Home Affairs [2018] FCAFC 142 ( 30 August 2018) [53]-[58] (The Court).

103. BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82, 90-91 [32]-[33] and 93-4 [43]-[44] (The Court).

104. Nystrom (2006) 228 CLR 566, 582–3 [40]–[42] (Gummow and Hayne JJ), 606–7 [129] (Heydon and Crennan JJ). Heydon and Crennan JJ appear to cite Huynh (discussed above) with approval.

105. NBMZ (2014) 220 FCR 1, 4–5 [9]–[10] (Allsop CJ and Katzmann J).

106. NBMZ (2014) 220 FCR 1, 6 [17] (Allsop CJ and Katzmann J), 39 [177]–[179] (Buchanan J); NBNB (2014) 220 FCR 44, 78–9 [126]–[127] (Buchanan J), 46 [1]–[2] (Allsop CJ and Katzman J agreeing); Taulahi (2016) 246 FCR 146, 168 [84] (The Court).

107. In Caric v Minister for Immigration and Border Protection [2017] FCA 1391 (28 November 2017) [19] (Bromwich J), there was a failure to consider the possibility that indefinite detention might arise following non-revocation of mandatory visa cancellation, in circumstances where the applicant harboured (unresolved) concerns about statelessness.

108. Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29, 48 [107] (North J), 51–2 [126]–[132] (Kenny and Perry JJ). The appellant’s health problems meant removal might not be effected as soon as reasonably practicable, as legislatively required.

109. Ayoub (2015) 231 FCR 513, 519 [19] (The Court).

110. Note BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153, 176–7 [87] (Bromberg J), where the Court explained that deferring questions about the prospect of indefinite detention could give rise to substantive unfairness. A future protection visa applicant would be governed by less favourable criteria in the Ministerial Direction, compared with a visa-holder subject to a cancellation (revocation) decision.

111. Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70–1 [61] (The Court).

112. BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, 465–6 [36]–[37], 467–9 [42]–[52] (Bromberg and Mortimer JJ).

113. Ibid 470 [63] (Bromberg and Mortimer JJ). Additionally, the Assistant Minister’s reasoning disclosed that they failed to comprehend the nature of the ‘harm’ apprehended by the appellant (472–3 [70]–[73]). See also Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (12 October 2016) [54] (Robertson J).

114. AUK15 v Minister for Immigration and Border Protection (2015) 235 FCR 386, 406 [105], 407 [116] (Barker J); AIN17 v Minister for Immigration and Border Protection [2017] FCA 907 (8 August 2017) [51] (Barker J) (‘AIN17’).

115. AIN17 [2017] FCA 907 (8 August 2017) [47] (Barker J).

116. BCR16 (2017) 248 FCR 456, 468–9 [52] (Bromberg and Mortimer JJ). See Peter Billings, ‘Refugee Protection and State Security in Australia: Piecing Together Protective Regimes’ (2018) 24(4) Australian Journal of Administrative Law 222, 227–8.

117. See, eg, Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22 (19 February 2018) [5] (Robertson J) [1]–[2] (North and Besanko JJ agreeing).

118. Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 174 [23] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

119. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 364 [67] (Hayne, Kiefel and Bell JJ) (‘Li’); and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [43] (The Court) (‘Singh’).

120. Li (2013) 249 CLR 332, 351 [28] (French CJ), 363 [66] (Hayne, Kiefel and Bell JJ), Graham (2017) 91 ALJR 890, 904 [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

121. Arguably the plurality in Li (Hayne, Kiefel and Bell JJ) abandoned the Wednesbury standard (Matthew Groves and Greg Weeks, ‘Substantive (Procedural) Review in Australia’ in Hannah Wilberg and Mark Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart Publishing, 2015) 133, 141).

122. Li (2013) 249 CLR 332, 364 [68] (Hayne, Kiefel and Bell JJ).

123. Li (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ), 375 [105] (Gageler J) linking reasonableness with the existence of justification, transparency and intelligibility, within decision-making processes.

124. Inadequate reasons may reveal other types of legal error that comprise the ‘grounds of review’.

125. See also Leighton McDonald, ‘Reasons, Reasonableness and Intelligible Justification in Judicial Review’ (2015) 37(4) Sydney Law Review 467, charting how inadequate reasons fit within the conceptual framework of judicial review.

126. Li (2013) 249 CLR 332, 352 [30] (French CJ), 366 [73]–[74] (Hayne, Kiefel and Bell JJ) referring (with apparent approval) to a proportionality analysis by referencing the scope of statutory power as a paradigm case of unreasonableness. See McCloy v New South Wales (2015) 257 CLR 178, 195 [3] (French CJ, Kiefel, Bell and Keane JJ).

127. Stretton v Minister for Immigration and Border Protection (No 2) (2015) 231 FCR 36, 55 [52]–[53], 57–8 [59]–[60] (Logan J).

128. Ibid 58 [60].

129. Stretton (2016) 237 FCR 1, 9 [23] (Allsop CJ), 25–6 [72]–[75] (Griffiths J), 29 [90] (Wigney J).

130. Ibid 7 [17], 9 [22] (Allsop CJ), 29 [90] (Wigney J).

131. Ibid 7 [17] (Allsop CJ), 29 [90] (Wigney J agreeing).

132. Stretton (2016) 237 FCR 1, 8–9, [21]–[22], 25 [74] (Griffiths J), 29 [90] (Wigney J agreeing).

133. Ibid 26 [75]–[76]. In Elara v Minister for Immigration and Border Protection [2017] FCA 1565 (22 December 2017) [66] (Barker J), the Court rejected a disproportionality-based claim because it was simply an appeal about the substantive ‘fairness’ (merits) of the decision.

134. Eden v Minister for Immigration and Border Protection [2015] FCA 780 (24 July 2015) [34] (Logan J).

135. The fact a suspended sentence was imposed did not lessen its seriousness (Eden (2016) 240 FCR 158, 173–4 [69]–[75]).

136. Ibid 179 [99]. The Full Court agreed with the primary judge that delay is a relevant factor when assessing the reasonableness of a decision (at 175 [81]).

137. Singh (2014) 231 FCR 437, 445–7 [42]–[48] (The Court).

138. Stretton (2016) 237 FCR 1, 23–5 [70] (Griffiths J).

139. The delay between commission of the offence and the visa cancellation decision also underpinned the judge’s finding of unreasonableness (Lyons v Minister for Immigration and Border Protection [2017] FCA 1381 (24 November 2017) [45] (Collier J)) (‘Lyons’).

140. Lyons [2017] FCA 1381 (24 November 2017) [24], [49].

141. Ibid [35], [38], [47] (Collier J).

142. Ibid [25]. See also [32]–[35] (Collier J).

143. Ibid [44] (Collier J).

144. Muggeridge (2017) 255 FCR 81, 94 [55] (Charlesworth J), 83 [1]–[2] (Flick and Perry JJ concurring).

145. Ibid 94 [56] (Charlesworth J), 83 [1]–[2] (Flick and Perry JJ concurring).

146. Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 (7 May 2018) [45]–[48] (Thawley J) (‘Ogbonna’) (a non-revocation matter).

147. Additionally, it would ground suspicions that the Minister was choosing to decide matters personally in order to avoid review before the AAT.

148. Carrascalao (2017) 252 FCR 352, 363 [41], 367–8 [61] (The Court). See also Jason Donnelly, ‘Failure to Give Proper, Genuine and Realistic Consideration to the Merits of a Case: A Critique of Carrascalao’ (2018) 2 UNSW Law Journal Forum 1, 2 <http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/12/2018-2-DONNELLY.pdf> identifying inconsistencies in the court’s reasoning but agreeing with the overall outcome.

149. Public Service Act 1999 (Cth) s 10(5).

150. Eden v Minister for Immigration and Border Protection [2015] FCA 780 (24 July 2015) [13]. The Court rejected a submission that the material before the Minister was biased in Maxwell v Minister for Immigration and Border Protection (2016) 249 FCR 275, 284 [26]–[27] (Perry J).

151. NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44, 78 [124]–[125] (Buchanan J), citing Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, 292 (Gummow J) and the phrase ‘proper, genuine and realistic consideration’.

152. Carrascalao (2017) 252 FCR 352, 382–4 [128]–[131]. The court noted (inter alia) that s 501(3) decisions did not attract natural justice and thus had no right to be heard, entailing important ramifications for those affected.

153. Taulahi and Carrascalao were both long-term residents (25 years or more) with immediate family who were Australian citizens. Both had long criminal histories and a past involvement with motorcycle gangs.

154. Carrascalao (2017) 252 FCR 352, 382 [127] (The Court).

155. Burgess v Minister for Immigration and Border Protection [2018] FCA 69 (12 February 2018) [93] (Charlesworth J) (‘Burgess’).

156. Ibid [93]–[94] (Charlesworth J).

157. Ibid [87] (Charlesworth J).

158. Carrascalao (2017) 252 FCR 352, 381 [122] (The Court) observing that there was a ‘policy’ (affecting decision-making) directed towards taking steps to avoid the release from detention of persons such as Taulahi and Carrascalao.

159 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, 686 (Deane J).

160. Roesner [2015] FCAFC 132 (15 September 2015) [40] (The Court).

161. Graham (2017) 91 ALJR 890, 904 [53]–[54]. The High Court held that a statutory provision (Migration Act s 503A(2)(c)) operated to shield the purported exercise of public power from judicial scrutiny and was constitutionally invalid. The provision prevented the Minister from divulging relevant confidential information to any court the practical effect of which was to prevent a court conducting a judicial review either under the Australian Constitution s 75(v) or the Migration Act s 476A(1)–(2).

162. Taulahi (2016) 246 FCR 146, 164 [69] (The Court).

163. Ayoub (2015) 231 FCR 513, 527 [46] (The Court).

164. Berryman (2015) 235 FCR 429, 437 [24], cited with approval in Roesner [2015] FCAFC 132 (15 September 2015) [40] (The Court).

165. Folau v Minister for Immigration and Border Protection (2017) 256 FCR 455, 470 [65], 476 [88]–[89] (Murphy and Burley JJ).

166. Ibid 477 [90] (Murphy and Burley JJ) (citations omitted). See Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ), 495 (Kiefel J).

167. Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365, 383 [76] (French J).

168. Isbester v Knox City Council (2015) 255 CLR 135, 154 [55] (Gageler J) (‘Isbester’), citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 (‘Bond’). See Chief Justice R S French, ‘Administrative Law in Australia: Themes and Values Revisited’ in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 24, 37.

169. Osborn v Parole Board (2013) 3 WLR 1020, 1044–5 [66]–[68] (Lord Reed JSC) preferring the dignitarian rationale over the utility of procedures; and International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 381 [144] (Heydon J).

170. Migration Act s 501(5). The provision ousts the common law fair hearing rule but has not been construed to shield ministerial decisions from review for bias (Burgess [2018] FCA 69 (12 February 2018) [21]–[23] (Charlesworth J). Judicial unease about the circumstances in which the Minister remade a visa cancellation decision was insufficient to ground apprehended bias ([43]).

171. ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30(10 March 2016) [35]-[36]. (Allsop CJ, Kenny and Griffiths JJ). See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

172. Isbester (2015) 255 CLR 135, 146 [23] (Kiefel, Bell, Keane and Nettle JJ).

173. Jia Legeng (2001) 205 CLR 507, 583 [245], 600 [317] (Callinan J). The significance of the Minister’s special constitutional position was emphasised in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231, 242–3 [18]–[20]. The High Court referred to the fact that the formulation and application of a policy ‘does not invoke…notions of prejudgment or bias [or]…of fettering discretion’.

174. Jia Legeng (2001) 205 CLR 507, 539–40 [102]–[105] (Gleeson CJ and Gummow J), 561 [176] (Hayne J), 583–4 [245], 592 [284] (Callinan J), cited by the Full Federal Court in Fraser v Minister for Immigration and Border Protection (2015) 145 ALD 337, 343–4 [31]–[32] (‘Fraser’).

175. Jia Legeng (2001) 205 CLR 507, 563 [181] (Hayne J), 583–4 [245] (Callinan J). The case concerned ministerial comments on the Government’s visa cancellation policy generally.

176. Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 (9 December 2014) [35] (Perram J). Affirmed in Fraser (2015) 145 ALD 337, 339 [4]–[8] (The Court).

177. Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 (9 December 2014) [35] (Perram J).

178. Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 171 (‘Zaburoni’).

179. Isbester (2015) 255 CLR 135, 146 [21] (Kiefel, Bell, Keane and Nettle JJ).

180. Zaburoni (2017) 256 FCR 171, 193 [81] (Farrell J).

181. Ibid 193 [82] (Farrell J). Affirmed in Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 197, 199 [1]–[2] (The Court).

182. Zaburoni (2017) 256 FCR 171, 193 [82] (Farrell J).

183. Ibid 195 [92] (Farrell J).

184. Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 206 [82] (The Court).

185. Migration Act s 501(5).

186. Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, 160 [50] (The Court)

187. Ibid 160–1 [51] (The Court). Section 501C(4) only permits revocation where (a) the non-citizen makes representations and (b) the Minister is satisfied the character test is met. There is no room for the exercise of discretion by the Minister where they are not satisfied the character test is met. See generally, the discussion of Roach in Hilkemeijer, above n 101.

188. Ibid 163–4 [66] (The Court).

189. By contrast with s 501(1) and (2), decision-making where the obligation to provide reasons is in s 501G.

190. Taulahi (2016) 246 FCR 146, 164 [67]–[69] (The Court).

191. Migration Act s 501CA.

192. Migration Act s 501CA(2). The provision does not require the Minister to advise a non-citizen about adverse information on which he might be minded to rely on in deciding to reject an application for revocation (Picard v Minister for Immigration and Border Protection [2015] FCA 1430 (16 December 2015) [40] (Tracey J) (‘Picard’)).

193. Migration Act s 501CA(4)(b).

194. Viane v Minister for Immigration and Border Protection (‘Viane’) [2018] FCAFC 116 (2 August 2018) [67]–[72] (Colvin J), [1], [4] (Reeves and Rangiah JJ agreeing) on the nature of the obligation to invite representations and consider them; notably, the significant matters raised in the representations. A failure to consider a significant matter advanced in representations can be characterised as a denial of procedural fairness or as a failure to carry out the statutory task (at [76]–[77], [108]).

195. Picard [2015] FCA 1430 (16 December 2015) [42] (Tracy J).

196. Coker v Minister for Immigration and Border Protection [2017] FCA 929 (15 August 2017) [56]–[57] (Moshinsky J) (‘Coker’).

197. Coker [2017] FCA 929 (15 August 2017) [54] (Moshinsky J).

198. Picard [2015] FCA 1430 (16 December 2015) [42] (Tracy J).

199. Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548, 560 [56] (Collier J) 561 [60] (Logan and Murphy JJ agreeing).

200. Viane [2018] FCAFC 116 (2 August 2018) [109] (Colvin J).

201. There are efficiency gains, in terms of estimated tax-payer savings, from refusing or cancelling the visas of organised crime offenders. See Anthony Morgan, Rick Brown and Georgina Fuller, ‘What are the taxpayer savings from cancelling the visas of organised crime offenders?’ (Statistical Report No 8, Australian Institute of Criminology, 2018), 24 <https://aic.gov.au/publications/sr/sr8>.