FCAFC adopts one of Ibrahim and Nguyen

Federal Court (Full Court). FCAFC held in Ibrahim that Minister misapprehended s 501BA(2) by believing it prohibited him from affording natural justice. Here, Minister admitted to FCA that if Ibrahim applied to s 501(3), he "proceeded on the basis of the alleged misapprehension". After admission but before FCA's decision,  FCAFC held in Burgess that Ibrahim applied to s 501(3). FCA then decided that Burgess and Ibrahim were correctly decided, but that Minister's admission was not conclusive. Was FCA wrong? Further, for the purposes of the materiality test, Ibrahim held that the judicial review applicant had to prove what he would have done had misapprehension not occurred, with which FCAFC (differently constituted) disagreed in Nguyen

Katzmann J summarised the case as follows:

21    The relevant part of the Minister’s statement of reasons is in the following terms (without alteration):

4.    Section 501(3)(b) of the Act enables me to, without natural justice, cancel a visa that has been granted to a person if:

-    I reasonably suspect that the person does not pass the character test (as defined by s501(6)); and

-    I am satisfied that the cancellation is in the national interest.

5.    Under s501(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 s501(3).

6.    Pursuant to s501C(3), following a decision under s501(3) to refuse to grant 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 and, except in a case where the person is not entitled to make representations, invited to make representations about possible revocation of the decision. Under s501C(4), if, and only if, the person makes representations in accordance with the invitation and satisfies me that they pass the character test, I may revoke the cancellation decision.

7.    I note that any representations made by Mr CHAMOUN in response to an invitation under s501C at the revocation stage can bear only on the question of whether or not he passes the character test not on the exercise of my residual discretion under s501(3).

8.    I further note that because Mr CHAMOUN has been sentenced to two terms of periodic detention, wherein the total of the time he spent in detention in relation to those terms was more than 12 months, he has a substantial criminal record as provided by s501(7)(d) and he objectively fails the character test under s501(6)(a). I am aware, therefore, that it would be futile for him to seek revocation under s501C(4) as he cannot satisfy me that he passes the character test.

9.    I note that I could have instead elected to consider Mr CHAMOUN’s visa cancellation under s501(2) of the Act, with natural justice and that, under that provision, the person is provided with a Notice of Intention to Consider Cancellation and given 28 days in which to respond to the notice. Under that process the person is afforded an opportunity to provide the Department with information pertaining to their circumstances and to respond to any adverse information, before a decision is made.

10.     However, I decided to proceed to make a decision in Mr CHAMOUN’s case under s501(3) without natural justice.

22    The primary judge’s reasons on this question appear at [92]–[94] where his Honour said:

92    In my opinion, the effect of s 87(1)(a) of the Evidence Act is to make the representation admissible since it is reasonably open to find that when the representation was made counsel had authority to make statements on behalf of the Minister in relation to the matter with respect to which the representation was made. The Court is to admit the representation for the purpose of determining whether a previous representation is also taken to be an admission by a party. I find that evidence of the admission was admissible and I find that the admission was made: see Heydon JD, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017) at [35640]. Nevertheless, contrary to what I understood to be the submissions on behalf of the applicant, this does not mean that the Court should look only at the admission: the Court must also look at the terms of the admission, the circumstances in which it was made and the other material from which the Court would, in the usual case, draw inferences. On judicial review of an administrative decision where the state of mind of the decision-maker is in issue and where reasons are given, generally speaking that other material is the decision, the reasons and the material before the decision-maker.

93    Although, therefore, I find the admission is admissible, it does not mean that I should not consider the terms of the Minister’s reasons. I also take into account that the admission was made in light of the decision in Ibrahim and before the decision in Burgess.

94    I find that the admission was an admission of fact, the fact being the Minister’s state of mind as to his power under s 501(3), but taking all the circumstances into account I am not persuaded that the Minister’s reasons and the Department’s submission to the Minister show that, as a matter of fact, he misunderstood his power so that he could not, although he might not be obliged to, seek further material from the applicant.

The questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Was the Minister's admission determinative of "the question whether at the time of his decision the Minister believed that he was precluded from affording natural justice to [the Appellant] if he exercised his power under s 501(3)" of the Migration Act 1958 (Cth)?

Question 2: "Did the primary judge err in holding that the reasoning in Ibrahim concerning the construction of s 501BA applies equally to s 501(3)"?

Question 3: Can it be said that, although the Appellant bears the onus of persuading the Court that the Minister's error was material, "he need not necessarily do so by adducing any additional evidence"?

Question 4: Can it be said that, "[w]here what is in issue is a misunderstanding by a decision-maker of the very power which she or he is tasked to exercise, it may be that quite specific circumstances would be required before a reviewing court could confidently conclude that an applicant or appellant was not deprived of the possibility of a successful outcome"?

Question 5: "In his submissions, the Minister pointed out that he could have cancelled the appellant’s visa under s 501(2), which requires natural justice, but instead decided to cancel the appellant’s visa under s 501(3), which does not". Can it therefore be said to be "fanciful to suggest that, having elected to cancel the appellant’s visa without natural justice under s 501(3), he would nonetheless have" afforded the Appellant natural justice?

The FCAFC answered those questions as follows:

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