Tension between MZAPC and Nathanson?

Section 501(6)(c) of the Migration Act 1958 (Cth) provided as follows:

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

…

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Will an assessment of the reputational consequences for Australia of breaching its non-refoulement obligations be the same as an assessment of the consequences to an affected person of Australia breaching such obligations?

Question 2: In CWY20, the FCAFC held that it was legally unreasonable for the Minister not to consider the reputational consequences for Australia of breaching its non-refoulement obligations when making a decision under s 501A(2) of the Migration Act 1958 (Cth). In ENT19, the FCAFC held that it was legally unreasonable for the Minister not to consider the reputational consequences for Australia of breaching its non-refoulement obligations when assessing whether cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth) was satisfied? Are CWY20 and ENT19 legally distinguishable for decisions made under s 501(3)?

Question 3: Does s 501C(4) confer a discretion once its preconditions are met, as it uses the word "may" in "The Minister may revoke the original decision if"?

Question 4: Is the national interest a matter which the Minister is bound to consider under s 501(2)?

Question 5: Are there good reasons not to apply reasoning about s 501A(2) to s 501(2)?

Question 6: Did the Minister have the choice to consider the reputational consequences for Australia of breaching its non-refoulement obligations when assessing the national interest under s 501(3)(d) or when assessing the exercise of the discretion in s 501(3)(b), with the consequence that it was not legally unreasonable for him not to consider such consequences when assessing the former provision?

Question 7: Can an omission to consider the reputational consequences for Australia of breaching its non-refoulement obligations under s 501(3)(d), without more, be positive evidence of the choice to consider such obligations under s 501(3)(b)?

Question 8: Can the Minister ignore the stipulation of s 501(3)(d) that the question of the national interest is to be considered as a jurisdictional prerequisite prior to the exercise of the power?

Question 9: Once the Appellant's visa was cancelled under s 501(3), was it first necessary for the revocation procedure under s 501C(4) (if enlivened) to run its course before he was removed pursuant to s 198?

Question 10: Can it be said that, as the Appellant was subject to an adverse security assessment from ASIO, whilst that remained in place, it was not possible for the Appellant to pass the character test because of the terms of s 501(6)(g)?

Question 11: Can it be said that, although the ASIO adverse security assessment was subsequently replaced with a qualified security assessment in which ASIO reversed itself and concluded that the Appellant was not a risk to Australia’s security, at the time that the Minister made the cancellation decision what was clear was that any revocation application could not succeed because of the initial adverse security assessment, as this future ASIO development was unknowable at the time?

Question 12: If the answers to questions 10 and 11 are 'yes', was the inevitable course of decision making that the Appellant would become liable for removal under s 198 after lodging a revocation application under s 501C(4) which was bound to fail?

Question 13: If the answer to question 12 is 'yes', does this answer provide a basis to distinguish ENT19 and CWY20 on the facts?

Question 14: Can one "infer from the fact that the Appellant held a protection visa that the Appellant faced a real risk of the harms to which Arts 6 and 7 of the ICCPR are directed so that his repatriation would put Australia in breach of its non-refoulement obligations"?

Question 15: If the answer to Question 14 is 'no', does it follow that the mere fact that the Appellant held a protection visa is not something which, on the face of it, would make it irrational or unreasonable to assess the national interest without adverting to the reputational consequences for Australia of breaching its non-refoulement obligations?

Question 16: Does a risk of death need to be established for non-refoulement obligations to be enlivened?

Question 17: If the answer to Question 16 is 'no', then having regard to the content of the non-refoulement obligations, is it nevertheless "likely that there needs to be material from which a breach of those obligations may be deduced, i.e., a real risk of the harms referred to in Arts 6 and 7 of the ICCPR"?

Question 18: If the answer to Question 17 is 'no' and there was no material from which a breach of those obligations may be deduced, does it follows that this is sufficient to distinguish ENT19 and CWY20 on the facts?

Question 19: Was the Minister entitled to assume that an adverse ASIO assessment had been lawfully issued?

Question 20: If the answer to Question 19 is 'yes', does it necessarily follow that ASIO had formed the view that the Appellant posed a serious threat to Australia’s border and territorial integrity?

Question 21: Is there anything "irrational or unreasonable in the Minister inferring that that which was a serious risk to border and territorial security was also a serious risk to the community"?

Question 22: As a matter of logic, it is possible that "the Minister might conclude that a person found by ASIO to pose a serious risk to security nevertheless did not pose a risk to the Australian community"?

Question 23: Can it be said that "Minister was entitled to place great weight on the existence of the adverse security assessment and the fact that he did so does not imply that he thought he had no choice about the matter"?

Question 24: Following cancellation under s 501(3), the ASIO report on which the cancellation was based was revised, with ASIO no longer assessing the Appellant to be a risk to security, but assessing him ‘a people smuggling facilitator for a venture that arrived in Reunion Island on 13 April 2019 with 120 Sri Lankan nationals on board’. The Minister sent the Appellant a letter inviting him to make representations seeking revocation of the cancellation under s 501C(4), telling him that the Minister may have regard to ASIO's news assessment "in relation to your past general conduct". May conduct which might be criminal in nature be considered under the rubric of general conduct?

Question 25: If the answer to Question 24 is 'yes', does it necessarily follow that the Minister could consider the Appellant’s people smuggling activities as an aspect of his general conduct?

Question 26: If the answer to Question 25 is 'yes', is it nevertheless the case that "the Minister’s letter (with its reference to general conduct) would reasonably be understood by its recipient as suggesting that she was not going to consider the Appellant’s conduct from a criminal perspective"?

Question 27: If the answer to Question 25 is 'yes', is it nevertheless the case that "the Minister’s letter (with its reference to general conduct) would reasonably be understood by its recipient as suggesting that she was not going to consider the Appellant’s conduct from a criminal perspective"?

Question 28: Is the case that a judicial review applicant must prove historical facts from which it may be inferred that there was a realistic possibility that the administrative decision-maker could have made a different decision had it not made the error in question, and that such historical facts encompass facts extending beyond the decision record?

Question 29: On the question of materiality, should the FCAFC apply MZAPC without regard to the reformulation of the plurality in Nathanson?

Question 30: Where the materials before an administrative decision-maker do not establish that a non-citizen committed a criminal offence, will it be legally unreasonable for the decision-maker to find under s 501(6)(c)(i) that the person has engaged in criminal conduct?

Question 31: In order to conclude for the purpose of s 501CA(4) that the Appellant had shown a contempt of or disregard for the law, was it was necessary for there to be evidence that the Appellant was aware that his conduct was criminal?

The FCAFC answered those questions as follows: