National interest: Minister required to consider legal consequences of decision?

The Full Court of the Federal Court (FCAFC) described the Minister's personal decision pursuant to cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth), and the preceding procedural history, as follows:

7. The Minister was not satisfied that the grant of the SHEV was in the national interest because the appellant had been convicted of playing an essential role in unlawful people smuggling and said that granting him a protection visa would send “the wrong signal” to people who might be considering engaging in similar conduct, “potentially weakening Australia’s border protection regime” and the policy that underpins it. He also said that granting a protection visa to such a person might “erode” the confidence of the community in the protection visa program. This was apparently the first time the national interest criterion had been invoked to refuse a protection visa to a person who had been convicted of a people smuggling offence.

10. The appellant’s application was first refused in May 2018 when a delegate of the Minister determined that he was not a person in respect of whom Australia has protection obligations. The matter was then referred to the Immigration Assessment Authority who, after reviewing the merits of the application, was satisfied that he was a genuine refugee.

13. Consequently, the Authority determined that the appellant had a well-founded fear of persecution in Iran by reason of his religion in that he could face serious harm in Iran, that the essential and significant reason for the harm was his religion, and that the harm he feared involves systematic and discriminatory conduct throughout Iran because it emanates from the Iranian authorities operating under national laws. Accordingly the Authority concluded that he satisfied the definition of refugee in s 5H(1) of the Act and remitted the decision of the delegate for reconsideration with the direction that the appellant was a refugee within the meaning of s 5H(1).

17. On 14 October 2019 the Minister, acting personally, exercised his discretion under s 501(1) to refuse to grant the SHEV on the ground that the appellant did not satisfy him that he passed the character test. The Minister concluded that the appellant posed an unacceptable risk to the Australian community because there was an “ongoing risk” of reoffending. The appellant applied for judicial review of the Minister’s decision and by consent, a judge of this Court ordered that writs of certiorari and mandamus issue to quash the decision of 14 October 2019 and require the Minister to determine the appellant’s application for a visa according to law. In making these orders, the Court noted that the Minister accepted that the application had to be allowed on the ground that the decision was affected by jurisdictional error because no probative basis had been identified for the conclusion that the appellant posed an ongoing risk to the Australian community.

20. On 5 May 2020 the Minister’s Department put the appellant on notice that his participation in “the business of people smuggling contrary to Australian law” might cause the Minister to refuse to grant him a visa in the national interest because to do otherwise “could undermine the integrity of the protection visa program and Australia’s border protection regime, a key element of which is the deterrence of people smuggling”. The appellant was invited to comment and on 8 May 2020, he provided a statement and submissions to the Department in response to the invitation.

Some of the questions to the FCAFC were as follows:

Question 1: Is a visa refused under s 501 ultimately refused under s 65 of the Migration Act 1958 (Cth)?

Question 2: Was Iran’s position on involuntary returnees a jurisdictional fact in the sense of a fact that can and should be determined by a court for itself?

Question 3: If the answer to Question 2 is 'yes', was it open to the primary judge to take, pursuant to s 144 of the Evidence Act, judicial notice of Iran's position on involuntary returnees, so long as he asked the appellant whether he agreed or whether he wanted to make submissions on the matter?

Question 4: Should it be inferred from the Minister's "statement that the Authority had found that Australia had protection obligations in respect of him, his summary of the appellant’s submissions, and his statement that he had taken those submissions into account" that he "had considered the legal and practical consequences of his decision"?

Question 5: Can it be denied, in the context of the personal decision of the Minister to refuse to grant the SHEV pursuant to cl 790.227, that the Minister "clearly understood that refoulement could be a consequence of refusing the visa by reference to the fact that he had said so in his reasons for refusing to grant the appellant a visa on character grounds" under s 501, on the basis that the Minister's decision under s 501, once said aside by the FCA, is taken not to have been made?

Question 6: If the answer to Question 5 is 'yes', can it nevertheless be said that the fact that the Minister properly considered Australia’s non-refoulement obligations when deciding not to grant the appellant a visa on character grounds under s 501 does not assist the Minister, as it was " not a new decision invoking the same power; it was a different decision involving a different criterion"?

Question 7: According to Katzmann J, "the legal consequence of refusing to grant the visa and not granting him another was that he would be removed from Australia". Can it be said that, "in attaining the state of satisfaction required by the relevant criterion, the Minister was not just required to address the appellant’s representations; his task was wider than that because he had to proceed in a way that was consistent with the Act, and upon a correct understanding of the law"?

Question 8: According to Katzmann J, "if in fact there was no real prospect of refoulement because of an Iranian policy, as the primary judge believed, then by what power could the appellant be held in indefinite detention"?

Question 9: Does cl 790.227 involve the exercise of a discretionary power?

Question 10: In deciding whether it is in the national interest to grant a visa to an applicant, is the Minister obliged to take into account the legal consequences of his decision, "particularly when those consequences have implications not only for an applicant but also for the nation"?

Question 11: In NBMZ, the FCAFC held that the Minister was bound to take into account the legal consequences of his decision under s 501 of the Migration Act. Was the principle which the FCAFC in Taulahi said NBMZ confirmed a principle confined to the exercise of discretionary powers in s 501?

Question 12: Does consideration of the national interest require the Minister to take into account particular matters personal to the visa holder?

Question 13: Can it be said that "the mere fact that [cl 790.227] is applied to applications for a SHEV does not mean that the decision-maker can ignore the prospect of refoulement or indefinite detention when considering whether it is in the national interest in a particular case to grant a SHEV"?

Question 14: Can it be said that, "since the object of the Act is to regulate in the national interest the entry to, and presence in, Australia of non-citizens, the suite of provisions which address the issue of non-refoulement and the grant of protection visas in order to comply with Australia’s non-refoulement obligations are intended to serve the national interest"?

Question 15: Can it be said that "Australia’s standing in the international community could be adversely affected by a decision to refuse to grant a protection visa to a person, like the appellant, who has been found to be a refugee"?

Question 16: Is there a "necessary inconsistency between being satisfied that the appellant is not a danger to Australia’s security for the purpose of s 36(1C) and not being satisfied that it is in the national interest to grant him a SHEV for the purpose of Sch 2 cl 790.277"?

Question 17: Can it be said that, although "it might be legitimate for a Minister to consider that the refusal to grant a visa to a person who has offended in some way may act as a disincentive to others and thereby protect other detainees or the Australian public convicted of a crime", care needs to be taken, because "there is authority for the proposition that a deportation order made for the sole or substantial purpose of deterring others would serve (impermissibly) as punishment of the criminal"?

Question 18: Can it be said that "a substantial, if not the sole, reason the Minister refused to grant the appellant a visa was to deter people smugglers", which "can properly be regarded as punitive and refusing to grant the appellant a visa on this basis does amount to double punishment"?

Question 19: Can it be said that "a decision-maker who is actuated by irrelevant considerations may be said to be acting “unreasonably”, that is “legally unreasonably”"?

The FCAFC answered those questions as follows: