Federal Court: In Ibrahim, FCAFC held that Minister was not prohibited from affording natural justice under s 501BA(2). In Burgess, FCAFC held that Ibrahim applied to s 501(3). Were Ibrahim or Burgess wrongly decided? If the Minister's decision record disclosed no error in the interpretation of the above provision, but the Minister admits that error in court, does that mean that the decision record should be ignored in determining whether the Minister made a jurisdictional error? Did the transfer of the Applicant between immigration detention centres amount to false imprisonment?
The Minister cancelled the Applicant's visa under s 501(3) of the Migration Act 1958 (Cth), which did not require that the Applicant be afforded procedural fairness.
The Minister's decision record included the following passages:
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.
As a result of the cancellation, the Applicant became an unlawful non-citizen as defined in the Act and taken to the Villawood Immigration Detention Centre (IDC). The Minister subsequently decided to transfer the Applicant to the Yongah Hill IDC, away from his family, without giving the Applicant an opportunity to comment on that transfer decision.
The Applicant applied to the Federal Court (FCA) for judicial review of the Minister's decision to cancel his visa and the decision to transfer him.
The questions to a single FCA judge were as follows:
Question 1: were Ibrahim or Burgess wrongly decided?
Question 2: if the answer to Question 1 is "no", does the decision record indicate that Minister's understood that he was prohibited from affording the Applicant natural justice?
Question 3:
Background: The Minister's written submissions to the FCA included the following passage: “If [Ibrahim and Burgess were correctly decided], the Minister accepts that he proceeded on the basis of the alleged misapprehension".
Question: Should the Minister's submission be seen as an admission of fact, as opposed to an admission of law?
Question 4: if the answer to Question 3 is "yes", should that admission be admissible in court?
Question 5: if the answer to Question 4 is "yes", can it be said that "in light of that admission there was no need to look at the reasons of the Minister to infer what his state of mind was at the relevant time"? In other terms, could it be said that, in light of that admission, although the decision record itself demonstrated no error, the admission in court necessarily demonstrated that the Minister made a jurisdictional error?
Question 6: can it be said that "the power to detain under ss 189 and 196 impliedly allows the transfer of a person only in so far as is reasonably necessary to" do so?
Question 7: if the answer to Question 6 is "yes", was it reasonably necessary to transfer the Applicant?
Question 8: in answering Question 7, is the question of what is reasonably necessary to be answered exclusively and subjectively by the Minister or it is an objective test that falls to be decided by a court?
Question 9:
Background: it was common ground that the Applicant was denied procedural in relation to the transfer decision.
Question: was the Minister required to afford the Applicant procedural fairness in relation to the transfer decision?
The FCA answered those questions as follows: