Federal Court (Full Court). Can it be said that, although it was open to the Minister to find that the respondent had taken no substantial steps towards rehabilitation up to the time of the Tribunal hearing, there was no rational basis for him to express views about the respondent’s circumstances at the time of his decision, 13 months after the Tribunal's decision? Is irrationality material by definition?
The Minister made a personal decision under s 501BA of the Migration Act 1958 (Cth) to set aside a Tribunal decision, and cancel the respondent's visa.
The Full Court of the Federal Court (FCAFC) said as follows about the Minister's reasons:
10 The Minister then turned to the exercise of the discretion conferred by s 501BA(2). He discussed a series of topics including the best interests of any minor children (at [60]-[61]), the respondent’s ties to Australia (at [62]-[66]), the legal consequences of the decision (at [67]-[75]) and the impediments that the respondent would face if he were removed to South Sudan (at [76]-[79]). Having weighed these various matters, he concluded at [80]-[88] that the power of cancellation should be exercised.
11 The aspect of the Minister’s reasoning that gave rise to issues in the Court below was how the Minister analysed the protection of the community, in the light of his acceptance that the respondent was a member of the class of persons to whom the reasoning of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ) applies. For many years prior to the decision in NZYQ it had been accepted that ss 189 and 196 of the Act (which on their face require an unlawful non-citizen to be detained until they are removed from Australia (pursuant to s 198) or granted a visa) authorised indefinite detention in the case of a non-citizen whom it was not practicable, or likely to become practicable, to remove. In NZYQ, the High Court overturned that understanding and held that the Act did not authorise detention of a non-citizen if there was no real prospect of the removal of that non-citizen becoming practicable in the reasonably foreseeable future.
12 In his reasons in the present case the Minister accepted that the respondent was a person in respect of whom Australia had non-refoulement obligations and was therefore not liable to removal to South Sudan under s 198 (at [70]-[71]). There was no present prospect of removing him to any third country (at [73]). Having noted the effect of NZYQ (at [72]), the Minister said the following at [74]-[75].
I am aware that if a cancellation decision is made under s501BA, [the respondent] will not be taken into detention. He will continue to reside in the community. I will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department.
I am also aware that if a cancellation decision is made under s501BA in circumstances where [the respondent’s] previous application for a protection visa was refused, there would be significant restrictions on [the respondent’s] ability to apply for another visa. In particular, I understand that [the respondent] would be prevented by s48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s48B, that s48A of the Act does not apply to him). Any application for a visa other than a protection visa would be subject to s501E of the Act, which would apply to [the respondent] as a result of a cancellation decision under s501BA, with the effect that his visa would remain cancelled under s501. This would mean that, without leaving the migration zone, he would not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), for which he could only apply in response to an invitation. I have given this consideration significant weight.
13 Earlier, in the course of considering the national interest, the Minister had discussed the nature of the respondent’s criminal offending and the extent of rehabilitation and remorse and then concluded as follows at [49].
Considering the nature and seriousness of [the respondent’s] conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of [the respondent] reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest.
14 After stating that conclusion, the Minister turned to the “[e]xpectations of the Australian community”. He proceeded on the basis that “the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia” (at [50])and gave this consideration “significant weight towards a finding that it is in the national interest to cancel [the respondent’s] visa” (at [54]). At [57], having “regard to all of the above”, the Minister concluded that the cancellation of the respondent’s visa was in the national interest.
...
44 The Minister’s conclusion as to the protection of the community relied on an assessment of the risk posed by the respondent. A significant aspect of this assessment was respondent’s remorse and rehabilitation. At [42], the Minister accepted that the respondent had displayed some remorse. Turning to rehabilitation, the Minister said at [43]-[44]:
However, it is a matter of serious concern to me that there is no evidence to demonstrate that the [respondent] has undertaken a meaningful rehabilitative intervention directly related to sexual offending. A Corrective Services NSW psychologist stated that [the respondent] required rehabilitation directed specifically to his sexual offending – such as through completion of the Sex Offenders Program – however there is no evidence before me that he has completed or even started such a course. The AAT stated that the fact he has not completed his course was through no fault of his own. Whatever reason was attributed to [the respondent] not having completed a sex offenders course does not detract from the fact that he is an untreated sex offender.
There is also an absence of evidence of rehabilitation [the respondent] has undertaken related to alcohol and drug misuse. Although [the respondent] stated in his personal circumstances form that he has done drug and alcohol courses in jail, there is a lack of independent evidence before me to support that claim and how he has responded to completion of such courses. The AAT compiled a list of courses [the respondent] completed in jail, but most are educational, hospitality or workplace related and not rehabilitative courses.
Some of the questions to the FCAFC were as follows:
Question 1: Is there a "subtle distinction between a purported exercise of discretion (where the term “unreasonable” aptly describes a decision that lacks an evident and intelligible justification ...) on the one hand and the formation of a state of satisfaction (where findings or reasoning that lack a probative basis lead to a decision properly described as “irrational, illogical or not based on findings or inferences of fact supported by logical grounds”...)"?
Question 2: Was there "no explanation of how, in circumstances where cancellation would not lead to the respondent being removed or detained, cancelling the visa had any connection with protecting the community", with the result that the Minister's finding on the protection of the Australian community was legally unreasonable?
Question 3: Can it be said that, although it was open to the Minister to find that the respondent had taken no substantial steps towards rehabilitation up to the time of the Tribunal hearing, there was no rational basis for him to express views about the respondent’s circumstances at the time of his decision, 13 months after the Tribunal's decision?
Question 4: Should it be doubted whether “materiality” (in the sense discussed in cases such as MZAPC) is the right frame of reference in a case where irrationality is alleged, in that, at least arguably, “irrational” is "a characterisation that must be applied to the ultimate state of satisfaction and therefore has a (relatively stringent) requirement of materiality built into it"? In other words, is an error in the form irrationality at least arguably material by definition?
The FCAFC answered those questions as follows: