Section 501C(4) interpreted

The Applicant was and convicted of a number of sexual offences, after which a court of appeal quashed those convictions and ordered that he be retried. The Applicant was then acquitted on retrial and the prosecution discontinued the remaining charges it had against him.

Despite the acquittal, the Respondent (Minister) personally cancelled the Applicant’s visa under 501(3) of the Migration Act 1958 (Cth), after which the Applicant made representations seeking revocation of the cancellation under s 501C(4) of the Act. Section 501C(4) provided that the Minister may revoke the cancellation if the person seeking revocation makes representations in accordance with an invitation sent for that purpose and “satisfies the Minister that the person passes the character test (as defined by section 501)”. Section 501(10)(a) provided: “For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if… the conviction concerned has been quashed or otherwise nullified”. In his reasons, the Minister acknowledged the quashing of the convictions and the subsequent acquittal, but said:

12. However, the presumption of innocence does not mean that I have to accept that [the Applicant] is innocent for the purpose of the present decision, and it is open to me to reach a conclusion inconsistent with that presumption. In this regard, I am cognisant that the presumption of innocence has limited direct relevance to an administrative law decision, noting that substantive and evidential law applicable in criminal proceedings is very different from that applying to the making of an administrative decision. In the context of administrative decision making, I note that a lower threshold than ‘beyond reasonable doubt’ may be applied to support a finding, so long as the requisite satisfaction has been reasonably, rationally, and logically reached.

The Applicant applied to the Federal Court (FCA) for judicial review of the non-revocation decision. Ground 1 argued that the Minister erred by taking into account an irrelevant consideration, namely the quashed convictions. Ground 2 argued that the Minister erred by failing to consider the circumstances of and reasons for the Applicant’s acquittal when re-tried on a count of rape. Ground 3 argued that the Minister erred by considering irrelevant materials, namely charges which had been withdrawn and police investigations which did not proceed. Ground 4 argued that the Minister’s finding that he could not exclude the possibility that the Applicant had committed rape was vitiated by illogicality and irrationality.

Some of the questions to the FCA were as follows:

Question 1: Can it be said that a non-citizen may engender the Minister’s satisfaction pursuant to s 501C(4)(b) that he or she passes the character test in the following ways: “by the representation made, by supplementary materials submitted thereafter or by reference to the “relevant information” already furnished by the Minister under s 501(3)(b) of the Act, a related, supplementary submission or some combination thereof”?

Question 2: Was the Minister required by s 501C(4) to evaluate the Applicant’s representations and assess and weigh relevant material for the purpose of determining whether the Applicant passed the character test?

Question 3: Can it be said that, even though the exercise of the revocation power conferred by s 501C(4) is conditioned upon a subjective jurisdictional fact (i.e. the Minister’s satisfaction that the former visa holder satisfies the character test), that does not shield a decision under that provision from scrutiny on judicial review?

Question 4: Is there a necessary or invariable inconsistency between a verdict of acquittal at trial or on appeal and administrative satisfaction that alleged conduct the subject of the criminal charge concerned occurred?

Question 5: Does an administrator need to have proof beyond reasonable doubt that certain conduct occurred for it to find that it occurred?

Question 6: Can it be said that, even though s 501(7) was not satisfied following the Applicant’s conviction being quashing, it was still open to the Minister to find that the Applicant did to pass the character test, by reason of s 501(6)(d)? In other words, can it be said that the Minister’s consideration of the character test under s 501C(4)(b) was not limited to the reason why the person originally failed the character test leading to the visa cancellation under s 501 and that the whole ambit of the character test under s 501(6) was available to the Minister under s 501C(4)(b)?

Question 7: If the answer to Question 6 is 'yes', can it be said that, by adopting such a summary, the Minister would be adopting both its virtues and vices and, if the summary is conducive to a jurisdictional error, so is the Minister’s decision relying on the summary?

Question 8: The Act required the Minister to give reasons, which required him to express findings or inferences of fact supported by logical grounds. Did the absence of such reasons here lead to illogicality or irrationality?

Question 9: Can it be said that, although administrative decisions are not to be scrutinised with an eye keenly attuned to the perception of error, it is not for the Court to supply reasons which the Minister did not?

Question 10: Can it be said that, even though s 501(3) involved the Minister being satisfied that cancellation was in the national interest, a non-citizen is not required under s 501C(4) to satisfy the Minister that it is in the national interest to revoke the cancellation?

Question 11: If the Minister is satisfied that s 501C(4)(a) and (b) are satisfied, does he or she have a discretion not to revoke the visa cancellation?

Question 12: Is the national interest an irrelevant consideration under s 501C(4) of the Act?

Question 13: Instead of entailing satisfying the Minister that there is no basis for a reasonable suspicion that he or she does not pass the character test, does s 501C(4)(b) entail satisfying the Minister that he or she passes the character test?

Question 14: Can it be said that, under s 501(3), it suffices if the Minister merely suspects that a non-citizen does not pass the character test, whereas under s 501C(4)(b) a suspicion is not enough and the Minister must be satisfied that the person does not pass the character test, which imposes a higher bar on the Minister?

Question 15: The Minister said at [46] that he “saw no reason to depart from his previous finding against the character test in [the applicant’s] case”. If the answer to Question 14 is 'yes', does [46] show that the Minister has assimilated the differing cancellation and revocation tests?

The FCA answered those questions as follows: