Ibrahim / Nguyen tension resolved? Part 2

Federal Court (Full Court): In SZMTA, HCA had held that: error is jurisdictional only if it is material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC had held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with that aspect of Ibrahim. In Weti-Safwan, it was unnecessary to resolve that tension, given the facts of that case. Can the Ibrahim / Nguyen tension be resolved? Were those decisions distinguished here? With respect, we disagree with one aspect of this decision.

The Appellant's visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth).

The Appellant sought revocation of that cancellation, but a delegate of the Minister decided not to revoke it. The Tribunal decided to revoke the cancellation, but the Minister then personally set aside the Tribunal's decision under s 501BA(2).

Although s 501BA(3) provides that the Minister is not required to afford the non-citizen natural justice when exercising his discretion under s 501BA(2), it does not preclude the Minister from so doing.

The Minister's reasons for making that decision included the following passages:

8. Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision unders501BA(2). This means Mr URIAERE has not been advised that consideration was being given to his visa being cancelled and therefore he has not been given any opportunity to make representations regarding the possible cancellation of his visa, including the impact an adverse decision would have on him and third parties.

9. I am also cognisant that as a consequence of my decision to proceed under s501BA(2) without natural justice to Mr URIAERE, there is no revocation power to ameliorate the lack of natural justice in the decision and therefore Mr URIAERE will not at any stage be given an opportunity to make representations in relation to my decision.

...

13. I also note that Mr URIAERE, in person, was able to present his case at the AAT in a thorough manner and on 4 October 2017 the AAT made a decision. Since that time approximately one month has elapsed and information before me may not reflect all of his current personal circumstances.

The Appellant then applied to the Federal Court (FCA) for judicial review of the Minister's decision, but the FCA dismissed that application.

The Appellant eventually appealed the FCA's decision to the Full Court of the FCA (FCAFC), arguing that the FCAFC's decisions in Nguyen and Weti-Safwan applied to the present matter. Those decisions in turn were based on the FCAFC's decision in Ibrahim.

The FCAFC observed that the reference to the time elapsed of 1.5 month at [13] of the Minister's reasons was incorrect, the correct time elapsed being of 3.5 months.

In Ibrahim, the Assistant Minister's reasons had included the following passages:

[10]    Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). This means Mr IBRAHIM has not been advised that consideration was being given to his visa being cancelled and therefore he has not been given any opportunity to make representations regarding the possible cancellation of his visa, including the impact an adverse decision would have on him and third parties.

[11]    I am also cognisant that as a consequence of my decision to proceed under s501BA(2) without natural justice to Mr IBRAHIM, there is no revocation power to ameliorate the lack of natural justice in the decision and therefore Mr IBRAHIM will not at any stage be given an opportunity to make representations in relation to my decision.

[12]    I have also had regard to the fact that Mr IBRAHIM will not have access to merits review in relation to my decision.

[13]    I have carefully weighed these matters against proceeding under s 501BA(2). However in this case, I have decided to proceed, even noting that the exercise of my s501BA(2) power will have real and practical consequences to Mr IBRAHIM and his family, they being third parties. In this instance Mr IBRAHIM’s family includes his three minor Australian citizen children and his girlfriend, Ms Raelene Rowland.

[14]    I also note that Mr IBRAHIM made representations in support of the revocation of the cancellation decision and received that assistance of the South Australian Legal Services Commission. Since that time, some two and a half years have elapsed. I note that Mr IBRAHIM’s visa was cancelled by the Assistant Minister in May 2017, he has spent some three months in immigration detention between July and October 2017. Mr IBRAHIM was released into the community following the judgment of the Federal Court of Australia on 13 October 2017. I considered that Mr IBRAHIM’s circumstances are likely to have changed in the intervening timeframe, although the Department holds limited information regarding his personal circumstances.

Further, in Ibrahim, the FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, the FCAFC, differently constituted, disagreed with that aspect of Ibrahim. In Weti-Safwan, the FCAFC held that, based on the facts of that case, it was unnecessary to resolve the Ibrahim / Nguyen tension.

Here, the FCAFC made the following comparison between the facts of this case against the facts in Ibrahim, Nguyen and Weti-Safwan:

The Minister’s description [at [8] and [9] of his reasons] of the nature and exercise of the power in s 501BA(2) and the operation of s 501BA(3)... :

(1)    is materially identical to that reproduced in Ibrahim at [29], but with some differences in his factual circumstances arising since the second delegate’s visa cancellation revocation decision (that is, it did not progress to the Tribunal);

(2)    is apparently substantially the same to that in Nguyen, because the Full Court at [39] in Nguyen said that the Minister’s reasons had that character when compared to Ibrahim at [29], with the only difference of note being the elapse of two and a half years since the visa cancellation revocation decision in Ibrahim, as opposed to the five months in Nguyen and the three and a half months in this case; and

(3)    is materially identical to that reproduced in Weti-Safwan at [14], but with an elapse of four months since the Tribunal’s visa cancellation revocation decision in that matter.

The questions to the FCAFC were as follows:

Question 1: Should Ibrahim, Nguyen or Weti-Safwan be distinguished on the basis that the time elapsed in this matter, namely 3.5 months, was lower than the time elapsed in each of those cases?

Question 2: Could it be said that, because:

  • the Minister pointed to the Appellant's "rehabilitative progress and his ability to remain abstinent from drug use and other offending conduct in the community, in the long-term, [being] untested" in the period of only 1.5 month since the Tribunal's decision; and
  • the actual period was of 3.5 months; and
  • the Minister considered that issue to be important

the period of 3.5 months would necessarily have been sufficient to test the Appellant's rehabilitation, meaning that the error was material?

Question 3: Should Nguyen be read as suggesting "that the Minister bore any onus to show that no additional information could have made a difference"?

Question 4: How should the Ibrahim / Nguyen tension be resolved?

The FCAFC answered those questions as follows:

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