Ibrahim / Nguyen tension resolved?

Federal Court (Full Court): In SZMTA, HCA held that: error was jurisdictional only if it was 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 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. Can that division be resolved? Were those cases distinguished here?

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:

5.    Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). This means Ms WETI-SAFWAN has not been advised that consideration was being given to her visa being cancelled and therefore she has not been given any opportunity to make representations regarding the possible cancellation of her visa, including the impact an adverse decision would have on her and third parties.

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

7.    I have had regard to the fact that Ms WETI-SAFWAN would not have access to merits review in relation to my decision.

8.    I have carefully weighed this matter against proceeding under s501BA(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 Ms WETI-SAFWAN and her family, they being third parties. In this instance Ms WETI-SAFWAN’s family includes: her minor daughter aged four, her spouse, mother, father, step-mother, step-father, mother-in-law and four siblings and other members of her extended family.

9.    I also note that Ms WETI-SAFWAN, with representation, was able to present her case at the AAT in a thorough manner, and on 12 October 2016 the AAT made its decision. Since that time four months have elapsed and information before me may not reflect all of her 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 decision in Nguyen applied to the present matter. That decision in turn was based in the FCAFC's decision in Ibrahim.

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.

The Minister's argument to the FCAFC in the present matter were summarised by it as follows at [41]:

... Whilst the [Minister] concedes that having regard to the similarity of the language used by the Minister in this case with that in Ibrahim and Nguyen, the Court will accept that “he misunderstood the power in section 501BA(2) of the Migration Act 1958 (the Act) as prohibiting the provision of natural justice to the appellant”, he submits that Ibrahim and Nguyen are factually distinguishable in that the Assistant Minister and Minister’s reasons in those cases indicated that the circumstances of both appellants were likely to have changed since their last submission. The [Minister] pointed to the fact that in Nguyen, the Minister had also noted later in his reasons that his information as to the appellant’s rehabilitative efforts may now be dated...

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.

The questions to the FCAFC were as follows:

Question 1: Should the Ibrahim / Nguyen tension be resolved in favour of the former or of the latter decision?

Question 2: Should Ibrahim and Nguyen be distinguished in the present case?

The FCAFC answered those questions as follows:

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