Decision-Making in the National Interest

DECISION-MAKING IN THE NATIONAL INTEREST?

Joanne Kinslor* and James English**

The character provisions of the Migration Act 1958 contain extraordinary powers for the Minister for Immigration and Border Protection, acting personally, to refuse or cancel visas without affording non-citizens natural justice or merits review and to overturn lawful decisions of merits review tribunals. The powers are restricted to cases where ‘the national interest’ arises.

This article considers whether the ‘national interest’ requirement has been operating as a check on these extraordinary powers. We particularly draw on the judgments of Gaudron and Kirby JJ in Re Patterson; Ex parte Taylor
[1]

to argue that the ‘national interest’ must be given independent operation as a precondition to the exercise of the relevant powers. In Re Patterson, Gaudron J identified that the national interest required separate and distinct consideration beyond the person failing the character test and Kirby J interpreted the ‘national interest’ as involving an emergency or threat to the nation as a whole.

A line of cases have applied Gaudron J’s requirement without applying Kirby J’s interpretation of the ‘national interest’ itself. We argue that these decisions have approached the ‘national interest’ as if it were an open discretion and left little work for the ‘national interest’ as a precondition to the discretion otherwise conferred by the relevant provisions. Our concern is that insufficient attention has been given to the specific legislative context of the national interest requirement. Being a precondition to the exercise of a statutory power that significantly interferes with the rights and freedoms of an individual, it should be closely scrutinised by the Courts.

The Migration Act 1958 (the Act) is strewn with references to ‘the national interest’ to support a partialist[2] immigration system, favouring Australian citizens over non-citizens. The stated purpose of the Act is ‘to regulate, in the national interest,
the coming into, and presence in, Australia of non-citizens’[3] and a number of powers within the Act allow the Minister for Immigration and Border Protection (the Minister) to act ‘in the national interest’
in areas of contentious public policy.[4] In this article, we will focus upon visa cancellations on character grounds where the national interest arises.

The character provisions in ss 501-501A of the Act contain extraordinary powers for the Minister for Immigration and Border Protection (the Minister)
to act personally to refuse or cancel visas without affording non-citizens natural justice or merits review and to overturn lawful decisions made by
the Administrative Appeals Tribunal. The powers are restricted to cases where the national interest arises. The article begins by discussing the nature
and operation of the relevant provisions and then examines the particular challenges that a legislative requirement to act in the national interest
creates for judicial review.

The character provisions

Sections 501-501B of the Act provides three powers that the Minister may exercise personally where it is in the national interest to do so. The
powers are:

• to refuse or cancel the visa of a person who the Minister reasonably suspects does not pass the character test: s 501(3);
• to set aside a decision of a delegate of the Minister or of the Administrative Appeals Tribunal (AAT) that is favourable towards a visa applicant/
  visa holder and substitute the decision with a decision to refuse or cancel the visa of a person who the Minister reasonably suspects does not
  pass the character test: s 501A; and
• to set aside a decision of a delegate of the Minister to refuse or cancel a visa which would ordinarily be reviewable before the AAT and substitute
  it with a personal decision to refuse or cancel the visa of a person who the Minister reasonably suspects does not pass the character test, with
  the new decision not being reviewable before the AAT: s 501B.[5]

Each of these powers may only be exercised by the Minister personally and cannot be delegated.[6]

For a decision under s 501(3) natural justice does not apply.[7] For a decision under s 501A the Minister may elect whether or not natural justice applies.[8] Natural justice has not been excluded for a decision under s 501B. Merits review is not available for any of these decisions.[9]

Significantly, these are not the only powers by which visas for non-citizens may be refused or cancelled on character grounds. A non-citizen may be refused
a visa or have her or his visa cancelled solely because she or he fails the immigration character test and without any consideration of ‘the national
interest’.[10] It is only decisions made without affording the non-citizen natural justice or to overturn a decision made by the Administrative Appeals Tribunal in
the non-citizen’s favour where the Minister must be satisfied that the decision would be in the national interest.

The terms of these three distinct powers identified above are distinct because the decisions to be made are distinct, but they share common requirements
and structure. It is instructive to commence by looking at the terms of s 501(3):

501(3) The Minister may:

(a)refuse to grant a visa to a person; or

(b)cancel a visa that has been granted to a person;

if:

(c)the Minister reasonably suspects that the person does not pass the character test; and

(d)the Minister is satisfied that the refusal or cancellation is in the national interest.

The Minister’s discretion to refuse or cancel a non-citizen’s visa under s 501(3) arises where three conditions are met:

• the person subject to the decision is an alien under the Commonwealth Constitution- (which equates to a person who is not an Australian citizen);
  [11]
  
  
• the Minister reasonably suspects that the person does not pass the character test; and
• the Minister is satisfied that the decision is in the national interest.

The character test

The character test is defined in subsection 501(6) of the Act. It is an important part of the legislative context in which the Minister makes
character decisions ‘in the national interest’.

Section 501(6) includes a large range of situations in which a non-citizen may not pass the character test, such as if the non-citizen has an ‘association’
with a person or a group suspected by the Minister of being involved in criminal conduct,[12] or there is a significant risk the non-citizen will engage in criminal conduct in Australia.[13]

In the majority of cases considered in this article, the person failed the character test because she or he had a substantial criminal record,[14]defined
in s 501(7) as including a sentence of imprisonment for 12 months or more[15] or two or more sentences where the total imprisonment is two years or more.[16] Section 501(7) covers terms of imprisonment imposed in any country, including for matters not considered crimes in Australia and not reflecting adversely
upon a person’s morals.[17] An assessment that a non-citizen does not pass the character test is not necessarily an assessment of a person’s character; it is a singular character
test that covers a range of conduct.

The national interest

In the Second Reading Speech for the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, the then
Minister for Immigration and Multicultural Affairs, Phillip Ruddock, said that the accountability of the Minster to Parliament and the Australian community
meant that he should have power to act in the national interest in exceptional cases.[18] He went on to say that ‘the government of the day…ought to be able to take responsibility,’ as proposed in s 501A, to overturn decisions of
the Administrative Appeals Tribunal (AAT) against the national interest.[19]

The High Court has not conclusively ruled on the interpretation of the national interest in the context of the character test. However, in Re Patterson; Ex parte Taylor
[20]

both Gaudron and Kirby JJ discussed the term in a case of a s 501(3) cancellation that was quashed on other grounds.

Gaudron J’s statements in relation to the term national interest were not focused upon interpreting the term per se, but upon criticising the Department
for failing to advise the Minister[21] that consideration of whether a non-citizen passes the character test must be a separate consideration to whether the national interest arises in a
particular case. She stated that the ‘national interest considerations are separate and distinct from the question of whether or not a person passes
the character test.’[22] Her Honour did, however, suggest that the conduct which caused the person to fail the character test could also satisfy the national interest criterion,
such as where the conduct was ‘more likely than not to cause discord in the Australian community,’[23] circumvented immigration laws or involved particularly serious crimes.[24]

Kirby J noted that there are a wide range of considerations potentially relevant to the national interest and that it could not be given a confined meaning.
[25]

However, he found that it was ‘impossible to regard’ the facts of the case (a long term resident of Australia convicted of child sex offences on
parole) ‘as sufficient to sustain a reasonable or rational conclusion’ that it was in the national interest to cancel Mr Taylor’s visa since there
was no emergency and no significant threat to the ‘nation as a whole’ or the ‘community of the nation’.[26]

Kirby J described the term as follows:

The expression the national interest is different from ‘the public interest’. In the Migration Act, it takes colour from the emergency circumstances in
which it applies and the peremptory procedures which then, exceptionally, govern the case…something more [than a substantial criminal record] was
obviously intended by requiring, additionally [to the character test not being met] that the danger to national interest justified the ministerial
decision…

While it might be said that the general problem of paedophilia and criminal offences against children is one involving ‘the national interest’, the decision
to be made by the minister under s 501(3) of the Migration Act is not made at such a level of abstraction. It is one personal to the visa holder…On
that level, the materials contained in the minute, upon which the respondent based her decision, did not afford any reasonable or rational foundation
for a conclusion that cancellation of the prosecutor’s visa was ‘in the national interest’. The jurisdictional fact necessary to attract the
second condition of which a Minister was to be satisfied before making a decision under s 501(3)was,
therefore, not present.[27]

Gaudron and Kirby JJ’s respective discussions of the national interest in this case took different approaches. Gaudron J focused upon the steps involved
in the process, while Kirby J focused upon the absence of what he described as the jurisdictional fact of the national interest necessary to enliven
the power. They both found the decision to be invalid and their judgments are not in conflict. Since Gaudron J did not seek to define the national
interest it cannot be concluded that she agreed or disagreed with Kirby J’s approach.[28]

However, Kirby J’s approach has not been adopted by the Federal Court in subsequent cases. In Madafferi[29] the Full Federal Court (in a joint judgment) stated that ‘His Honour set a high threshold for the enlivening of the national interest criterion…
and [w]ith respect to that view, the bar of national interest does not seem to be set that high by the words of the Act which must be the primary guide
to legislative intention.’[30]

In our respectful view, a high threshold approach for the interpretation of provisions that impact upon individual rights and freedoms is consistent with
the principle of legality. This principle of statutory interpretation[31] was employed by the Full Federal Court when it interpreted part of the character test in a different national interest character case: Haneef.[32]The
case concerned cancellation of a temporary work visa, which the Court described as having granted the applicant ‘valuable rights’, including the right
‘to live here, to be at liberty here, to be with his wife here, and to work here.’[33] Cases such as those discussed by the Court concerning a permanent resident’s ‘right to community’ raise even stronger rights. In Haneef, the
Court applied the principle of legality to support an interpretation of the association ground of the character test (s 501(6)(b)) that limited its
impact upon individuals with visas. In our respectful view, the line of authority referred to by the Court[34] to demonstrate the applicability of the principle of legality to interpreting s 501(6)(b) is equally apt for deciding between interpretations of the
national interest as it applies to character decisions under s 501(3), 501A and 501B of the Act.

The Court in Madafferi held that the question of the national interest was ‘an evaluative one entrusted by the legislature to the minister to
determine according to his satisfaction’[35] and found that the Minister had not erred in law or acted unreasonably in being satisfied that the national interest was enlivened in the case in which
Mr Madafferi had been convicted of offences involving violence, attempted extortion and drug possession. In Maurangi v Bowen[36]the
plaintiff challenged the Minister’s construction of the national interest by arguing that the Minister did not have regard to any matters other than
the plaintiff’s failure to pass the character test in determining that it was in the national interest to cancel the plaintiff’s visa and overturn
the AAT’s decision. Lander J rejected that submission and stated:

It does not follow that simply because the Minister relied upon the fact that a visa holder cannot pass the character test because of the visa holder’s
criminal record and decided that the visa holder’s criminal record was the ground for finding that the cancellation was in the national interest meant that the Minister proceeded in jurisdictional error.[37]

Lander J went on to emphasise the very broad scope of the criterion, saying, ‘In my view it is for the Minister to determine when a person’s criminal history
is such that it is in the national interest to cancel that person’s visa, providing of course that the Minister exercises the discretion reasonably.’
[38]

Although a person’s failure to pass the character test and national interest are separate criteria, they may be satisfied by the same facts.
[39]

In the case of Plaintiff S156 the High Court recently considered the national interest in relation to s 198AB of the Act, which gives
the Minister power to designate that a country is a regional processing country if the Minister thinks that it is in the national interest to do so.
[40]

Section 198AB(3) requires the Minister to have regard to whether the country has given assurances that it will not refouler a person taken
to that country and will make or permit an assessment of whether the person is a refugee. The Minister may also have regard to any other matter
which, in the Minister’s opinion, is in the national interest. In Plaintiff S156, the Court stated that ‘what is in the national interest
is largely a political question’,[41] and rejected arguments based on failure to consider relevant factors and unreasonableness. The statutory context of ‘the national interest’ in
s198AB is significantly different from the character provisions, especially considering the nature of the decision being made. Kirby J’s approach
in Re Patterson is important in recognising that the factors considered in exercising judgment about visa cancellation on character grounds
must be applicable to the individual.

Discretion

Section 501(3) confers a broad discretion[42] upon the Minister to refuse or cancel the visas of non-citizens who do not pass the character test where the Minister is satisfied that the refusal/cancellation
is in the national interest. Section ‘501 prescribes the failure to satisfy the character test as a condition precedent to the exercise of the discretion
to cancel a visa and does not create a presumption as to how the discretion should be exercised.’[43] The same can be said of the national interest condition precedent in s 501(3). Once both are satisfied the Minister is then free to exercise that discretionary
power as he or she sees fit in the circumstances. That is the way in which each of the national interest powers discussed here is structured. It is
also the way in which the powers enabling visa refusal or cancellation on character grounds without a national interest requirement operate.

In exercising the discretion the Minister is given a power both to determine what is relevant and to determine the preferable decision in the circumstances.

In Klein v Domus, Dixon CJ commented on Parliament’s intentions in conferring a discretion as follows:

…the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering
the general purpose of the enactment to give effect to his view of the justice of the case.[44]

Dixon CJ’s statement highlights the personal nature of the decision and the perception of justice. The discretion is critical to the operation of the character
test and was used in Parliament to justify the broad terms of the character test.[45] Without the discretion, decision-makers would be required on the terms of the character test to refuse and cancel the visas of people whom the Australian
community would not consider to be of bad character. The discretion enables a critical judgment to be made after weighing up competing considerations.
As was found in Minister for Immigration and Citizenship v Li, this must be done in a way which is rational according to ‘the rules of reason’,
and is limited by the subject matter, scope and purpose of the legislation.[46] French CJ in that case balanced the traditional understanding of a discretion (such as in Klein v Domus) with Dixon J’s statement in Shrimpton v Commonwealth that ‘complete freedom from legal control, is a quality which cannot…be given under our Constitution to a discretion’ that would otherwise
‘go outside the power from which the law or regulation conferring the discretion derives its force.’[47]

Grounds of review

Judicial review of decisions made under ss 501 and 501A is limited by the terms of the statute. Administrative law ‘confers no jurisdiction to review an
exercise of power by a repository when the power has been exercised or is to be exercised in conformity with the statute which creates and confers
the power.’[48] Section 75(v) of the Constitution does not protect grounds of review; it only protects the Court’s jurisdiction[49] to act where acts are done outside the limits of statutory power. There are some limitations, referred to as ‘the Hickman conditions’, which
apply to every power and cannot be excluded by statute. These require ‘that a decision is a bona fide attempt to exercise power, that it relates to
the subject matter of the legislation, and that it is reasonably capable of reference to the power.’[50] Furthermore, an exercise of discretionary power must be exercised reasonably ‘according to rules of reason and justice’[51] A decision that does not adhere to these basic requirements is taken not to be a decision at all.[52] In some cases a ground of review may be completely excluded by the terms of a statute, such as the exclusion of natural justice in s 501(3). Other
grounds of review may be available but may have a very limited operation because of the scope of the legislative power, as in review on the grounds
of failure to take into account a relevant consideration, discussed below.[53]

In this section we consider the scope of judicial review of character decisions made personally by the Minister by reference to the national interest.
We contend that the national interest raises particular difficulties for judicial review that have not yet been resolved.

Jurisdictional fact

A decision will be invalid on account of jurisdictional error where a jurisdictional fact necessary for the exercise of the power does not exist. This
term refers to a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion.[54] Provided the s 501 power is only used towards aliens,[55] it is the decision-maker’s state of mind, not a set of objective facts, that create the pre-conditions for the exercise of power.[56]

For s 501(3) and s 501A the critical pre-conditions are that (i) the Minister reasonably suspects the person does not pass the character test and (ii)
the Minister is satisfied that the refusal or cancellation is in the national interest.[57]

Reasonable suspicion person does not pass the character test

In considering the scope of the ‘national interest’ criterion some consideration should be given to the first pre-condition of a failure to pass the character
test, since this defines the scope of cases in which the Minister may consider whether the national interest arises.

A jurisdictional fact based on a ‘reasonable suspicion’ is not unreviewable,[58] but it sets a low bar. Courts will not substitute their own judgment for that of the decision-maker, who alone is responsible for forming the relevant
state of mind.[59]

A suspicion has long been accepted to mean ‘something more than a mere idle wondering.’[60] In Goldie v Commonwealth, the Full Federal Court found that holding a ‘reasonable suspicion’ imposed an obligation ‘to make due inquiry