Part 2: risk to community on BVR versus protection visa?

Following a decision of the Tribunal to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the mandatory cancellation of the Applicant's protection visa, he became part of the NZYQ-affected cohort. The reason is that he had been found to be owed protection and there was no real prospect that it would be practicable to remove him from Australia in the reasonably foreseeable future.

After acknowledging that that was the case, the Minister nevertheless personally set aside the Tribunal's decision, and cancelled the visa, under s 501BA(2) of the Act in the national interest.

One of the reasons for finding that cancellation was in the national interest was that the protection of the Australian community from future harm.

Another of those reasons was that the Australian community expected that the Government would not allow non-citizens who commit serious offences to “remain in Australia” and would expect that such persons “should not continue to hold a visa”.

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Can it be said that a non-citizen who is segregated or separated from the Australian community by being removed from Australia, or placed in immigration detention following the cancellation of their visa, cannot reoffend in the community, with the result that the community is relevantly protected from the risk of the non-citizen reoffending?

Question 2: Although the Minister did not make a finding that cancellation of the Applicant’s visa would in fact protect the Australian community, did that appear, "however, to be the very premise or basis for his conclusion ... that the need to protect the Australian community weighed heavily in support of the cancellation of the applicant’s visa and towards a finding that it was in the national interest to cancel the applicant’s visa"?

Question 3: May it "perhaps be accepted that the cancellation of a permanent visa held by a person in the applicant’s position, and its replacement with a temporary visa, such as a Bridging R visa subject to stringent conditions, might logically be said to provide some measure of protection to the Australian community"?

Question 4: Was the finding that it was in the national interest to cancel the Applicant's visa legally unreasonable, as the Minister did not turn his mind to the question of "how the cancellation of the applicant’s visa would fulfil the need to protect the Australia community, let alone to issues such as the differences between the applicant’s existing protection visa and the type of visa that he might be granted if that protection visa was cancelled given the complications arising from the decision in NZYQ"?

Question 5: After receiving a Departmental brief with draft reasons and options to circle, the Minister referred the question of whether the applicant should be granted a Bridging R visa to a delegate to consider. Did that support the inference that "he did not really turn his mind to how the cancellation of the applicant’s protection visa would logically assist in anyway in meeting the need to protect the Australian community"?

Question 6: Can it be said that, although the rational connection between cancellation and protection of the community provided by the difference between permanent and temporary reasons may not have “spelled out” in the Minister’s reasons, that connection “rises naturally from the entirety of the decision” and “doesn’t need to be so articulated”? In other words, can the Court substitute its own justification for the decision under review, so long as the decision was open?

Question 7: Where there is no challenge to the decision-making process and the issue is whether the outcome was legally unreasonable, can it be said that it may well be the case that legal unreasonableness will only be established if the decision is one at which no rational or logical decision-maker could arrive at on the same evidence, but that this is not necessarily the case where the issue is whether the decision-maker’s reasoning process was legally unreasonable?

Question 8: Can it be said that, "if the state of satisfaction which is a precondition for the exercise of a power is arrived at unreasonably because it is founded on an illogical or irrational process of reasoning, the resulting exercise of power would undoubtedly be beyond jurisdiction"?

Question 9: Is it unlikely to greatly assist to say that the threshold for irrationality or illogicality, in the context of legal unreasonableness, is “extreme” irrationality or illogicality?

Question 10: Was it legally unreasonable to hold the expectations of the community against the Applicant, as "there was no explanation as to how the cancellation of the applicant’s visa, in his particular circumstances, would accord with the expectations of the Australian community and would therefore be in the national interest", given that he would remain in Australia on BVR even if the protection visa were cancelled?

Question 11: Can it be said that "the legal and practical consequences of a decision to cancel a visa is a mandatory consideration to which the Minister is bound to have regard when considering whether he or she is satisfied that the cancellation of the visa is in the national interest"?

Question 12: Does the subject matter, scope and purpose of s 501BA(2) provide a basis for implying mandatory considerations?

Question 13: If the answer to Question 11 is 'yes', does it "follow from the fact that the legal and practical consequences of the cancellation of the visa was not a mandatory consideration that the Minister’s failure to have regard to that consideration was not legally unreasonable"?

Question 14: If the answer to Question 13 is 'no', might there be cases, such as the Full Court's decision in CWY20, "where the Minister’s failure to have regard to a particular fact, matter or circumstance when considering whether cancellation of a visa is in the national interest constitutes legal unreasonableness"?

Question 15: In exercising the discretion under s 501BA(2), was the Minister required to take into account the direct and immediate legal or statutory consequences of the decision to cancel the visa, and the practical consequences of the decision?

Question 16: Was it inconsistent for the Minister to reason that: by reason of the decision in NZYQ, the Applicant would not be subject to immigration detention and would continue to reside in the community; he would “separately consider the type of visa on which he [the applicant] should reside and conditions to be imposed on that visa, following further advice from the Department”?

Question 17: When considering the legal and practical consequences of the cancellation of the Applicant’s visa, should the Minister have considered that cancellation would result in him in due course being issued with a Bridging R visa which was subject to stringent conditions?

Question 18: Was it at best fanciful for the Minister to suggest that, having cancelled the Applicant’s visa on the national interest ground, the Minister, or another Minister, or a delegate, would intervene in the Applicant's favour?

Question 19: When considering the legal and practical consequences of the cancellation of the Applicant’s visa, should the Minister have considered that an almost inevitable consequence of the cancellation of the applicant’s visa was that the applicant would for some period reside in the community as an unlawful non-citizen, during which he would not be allowed to work?

Question 20: If the answer to Question 19 is 'yes', was that "of particular significance in the applicant’s case given the findings that the Tribunal had made concerning the financial difficulties that the applicant’s family had suffered as a result of the applicant’s circumstances"?

Question 21: Can it be said that, "even if the Minister was required to consider the direct and immediate legal consequences of the decision to cancel the applicant’s visa, he was not required to consider the practical consequences"?

The FCA answered those questions as follows: