Federal Court. Was it legally unreasonable for the Minister to find that cancellation of the visa was in the national interest because of the risk to the Australian community, given that the applicant would be in the community in any event due to NZYQ?
In JNMQ, the Federal Court (FCA) held that it was not illogical for the Minister to attribute significant weight to the protection of the Australian community in deciding to set aside a decision of the Tribunal and to refuse to grant a visa because the outcome of the refusal decision would be that the applicant would not be taken into detention but rather would continue to reside in the community by reason of NZYQ. The FCA held in JNMQ at [27]:
As the Minister submits, it was logical and rational for the Minister to give significant weight to the protection of the Australian community in assessing whether the national interest favoured the applicant being granted an indefinite right to remain in Australia. As the Minister submits, not only does a permanent visa entitle its holder to an indefinite right to remain in Australia, but permanent residency is one of the criteria for a non-citizen seeking conferral of Australian citizenship: s 22(1)(c) of the Australian Citizenship Act 2007 (Cth). Thus, the question for the Minister’s consideration when assessing the protection of the Australian community was not simply whether the applicant would be removed from the community upon the refusal of the visa. This is reflected in the Minister’s reasons at [53], in which the Minister referred to the applicant having applied for a Class CD Subclass 851 Resolution of Status Visa for the purpose of remaining permanently in Australia, and stated that he had considered the risk of harm to the Australian community in the context of the permanent stay period and specific purposes of the visa application.
Some of the questions to the FCA were as follows:
Question 1: Should JNMQ be distinguished on the following bases? "First, the applicant in JNMQ had applied for a Safe Haven Visa, but as explained below (at [44]) this had been converted into an application for a Resolution of Status Visa (which is a permanent visa), whereas the applicant’s Safe Haven Visa was a temporary visa which only gave him the right to apply for a Resolution of Status Visa. Second, in JNMQ the Minister explicitly considered the risk of harm to the Australian community in the context of the permanent stay period for the specific purposes of the visa application, whereas the Minister did not do so in the present case."
Question 2: In exercising a discretion under s 501 of the Migration Act 1948 (Cth), may the Minister only have regard to legal consequences that are “inevitable or certain” or that are the direct and immediate consequence of their decision?
Question 3: Can it be said that, "if a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly"?
The FCA answered those questions as follows:
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