Relevant Considerations, Proper Purposes and Ministerial Discretion: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton  HCA 17 and ENT19 v Minister for Home Affairs  HCA 18
It is settled law that discretionary powers must be exercised for proper purposes and by taking into account relevant considerations. A pair of recent decisions from the High Court of Australia illustrate this settled law quite nicely: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton  HCA 17; and ENT19 v Minister for Home Affairs  HCA 18. ENT19 is additionally of interest because of the way statutory purpose and context were relied upon to read down a textually broad grant of discretionary authority to make decisions about the “national interest” (see also Maria O’Sullivan and Douglas McDonald-Norman): a statutory mention of the “national interest” did not, as we shall see, make the power in question one that the Minister could use to dispense with other provisions of the law.
In Thornton, the Minister refused to revoke a decision to cancel T’s visa by reference to offences T committed when a child. T had come to Australia from the United Kingdom at a young age and remained in the country on a series of temporary visas. At the age of 21, T committed an offence for which he received a two-year term of imprisonment and his most recent visa was cancelled. The Minister then refused T’s application to revoke the cancellation decision. Under s. 501CA(4) of the Migration Act, the Minister may revoke a cancellation decision if the person is of good character or “there is another reason why the original decision should be revoked”. In T’s case, the Minister was not minded to exercise this broad discretion, as Gordon and Edelman JJ explained:
Before stating that conclusion, the Minister made several observations concerning Mr Thornton’s offending, including his childhood offending. The Minister first noted that he had assessed all of the information in the attachments to his reasons, which included Mr Thornton’s juvenile criminal history, and in particular Mr Thornton’s representations, which included acknowledgment of his childhood offending. The Minister noted that although he held the view that the Australian community might afford a higher tolerance of Mr Thornton’s criminal conduct given that he had lived in Australia most of his life since he was three years old, he thought that “would be offset to at least some degree by the fact that he began offending as a minor and had a number of offences recorded before reaching adulthood”. The Minister noted that Mr Thornton “has a history of mainly drug-related and violent offences since he was 16 years old” and referred to Mr Thornton having been fined and placed on probation, including as a result of his appearances in “juvenile courts”, for offences “without any convictions being recorded”.The Minister also stated that he considered that the fact that Mr Thornton had “repeatedly committed offences of or related to domestic violence, and other assault offences add[ed] more gravity to his offending” (emphasis added). Finally, in his concluding remarks, the Minister stated that he “gave significant weight to the serious nature of the crimes committed by Mr THORNTON, that are of a violent nature”. As Mr Thornton’s criminal history makes clear, the majority of his juvenile offences involved some form of violence (at para. 49).
But the interaction of federal law and state law made this analysis problematic. Section 85ZR(2) of the federal Crimes Act states that where the law provides that a person is not to be taken to have been convicted of an offence, a federal authority is not to take them to have committed an offence. And s. 184(2) of Queensland’s Youth Justice Act states that “a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose”. No conviction was recorded for any of the offences T committed when he was a child.
As Gordon and Edelman JJ put it, the question was whether these provisions meant that T’s underage offending was an irrelevant consideration (at para. 51). The majority concluded, on a careful reading of the two statutes and precedents interpreting similarly worded provisions, that the Minister should therefore not have considered these offences: “Mr Thornton’s offences as a child were committed in Queensland. Mr Thornton, in Queensland, is to be taken by the Minister in that State (notionally for the purpose of considering Mr Thornton’s revocation application) never to have been convicted of any such offence for any purpose” (at para. 33, per Gageler and Jagot JJ). By taking into account the fact “that Mr Thornton had been charged with offences committed when he was a child for which no convictions were recorded” (at para. 74, per Gordon and Edelman JJ), the Minister had relied on an irrelevant consideration.
This error was sufficiently serious (in Australian terms, a jurisdictional error) to render the Minister’s decision unlawful: “Read fairly and as a whole, in circumstances where in coming to his conclusion the Minister expressly gave primacy to Mr Thornton representing a risk of harm to the Australian community, those references [to childhood offending] cannot be disentangled; they infected his reasoning to that conclusion” (at para. 79, per Gordon and Edelman JJ). For Gageler and Jagot JJ, the error was plainly material as the irrelevant consideration obviously weighed heavily in the balance for the Minister: “The decision of the Minister could well have been different had Mr Thornton’s juvenile offending not been taken into account” (at para. 38).
Dissenting, Steward J read the relevant provisions and precedents differently: in all events, the point is that the Minister’s broad power of revocation could only be used based on relevant considerations, which were determined as a matter of statutory construction.
In ENT19, the power at issue allowed the Minister to grant a visa where “satisfied that the grant of the visa is in the national interest”: clause 790.227 of Schedule 2 of the Migration Regulations. ENT19 has been in Australia since 2013, when he arrived on a boat from Iran. Fatefully, he worked as a people smuggler in order to pay for passage to join his family. He was later convicted of the offence of people smuggling.
These proceedings arose from ENT19’s application for a temporary protection visa. The Minister refused the application, for reasons neatly summarized by the dissenting judges (Kiefel CJ, Gageler and Jagot JJ):
The Minister adopted and acted on the uncomplicated and unsurprising view that it was “not in the national interest for a person convicted of people smuggling to be seen to get the benefit of a protection visa”. For a person convicted of people smuggling to be seen to get the benefit of a protection visa, the Minister explained, “would send the wrong signal to people who may be contemplating engaging in similar conduct in the future” and would tend to undermine “the confidence of the Australian community in the protection visa program” (at para. 7; see also at paras. 77-78).
Given the breadth of the statutory language, the dissenting judges found, it was open to the Minister to take “a political view that the grant of a protection visa to a particular applicant would not be in the national interest” (at para. 43).
The majority (Gordon, Edelman, Steward and Gleeson JJ) saw it rather differently. The “national interest” language in clause 790.227 had to be read as part of a much broader statutory scheme. To begin with, there are basic requirements for protection visas: the applicant must not be a security threat and must be a refugee or someone who would otherwise be exposed to a serious risk of harm in a third country. After that, there is a “character” test which requires the decision-maker to ask whether the applicant is of good character: crucially, one of the “character” criteria is involvement in people smuggling.
The Minister sought to refuse the application under clause 790.227. The resultant difficulty is that in order to exercise the “national interest” power under clause 790.227, the Minister had to already have concluded that the applicant had passed the character test. But if the applicant had passed the character test, including consideration of his involvement in people smuggling, could the Minister refuse to grant a visa on the basis of the involvement in people smuggling?
The Minister’s position was that clause 790.227 “is to be read according to its plain meaning, unconstrained by its context” (at para. 92). The majority demurred, on the basis that the surrounding statutory context constrained the broad language of “national interest” found in clause 790.227: it is not a “trump card” or a “special visa refusal power” (at para. 97) and “cannot be treated as if it were a personal dispensing power” (at para. 106).
A key provision is s. 501 of the Migration Act, which empowers the Minister to refuse an application where the Minister or the Minister’s delegate is not satisfied that the applicant passes the character test. There are two possibilities here, arising under subsections 501(1) and 501(3), as the majority explained:
It is necessary to say something more about the structure of s 501(1) and (3). A decision under s 501(1) involves two steps, being a consideration of whether the person has satisfied the decision-maker that the person passes the character test, and if not, the exercise of the discretion whether to exercise the power to refuse the vis. If the outcome of the first step is that the decision‑maker is satisfied by the person that they pass the character test, the only decision open to the decision‑maker is not to refuse the visa. A decision under s 501(3) requires consideration of the two conditions in s 501(3)(c) and (d): first, whether there is a reasonable suspicion that the person does not pass the character test and second, whether the refusal or cancellation of the visa is in the national interest. Only if the Minister holds such a reasonable suspicion and is satisfied that the refusal or cancellation is in the national interest, may the Minister exercise the discretion to refuse to grant or to cancel the visa. Otherwise, the only decision open to the Minister is not to refuse or cancel the visa (at para. 68).
The power under subsection 501(3) is a personal power to the Minister and is subject to rigorous procedural requirements, including laying a decision to exercise the power before Parliament (at para. 67). However, the Minister did not exercise the personal power provided for by subsection 501(3). Nor did a delegate of the Minister exercise the power under subsection 501(1). Instead, the Minister applied clause 790.227 (at para. 83).
But this gave rise to the difficulty noted above: reliance on the bad character of the applicant when the Minister had already impliedly concluded that the applicant had passed the character test (at para. 102). The Minister could not get to the point of applying clause 790.227 without determining (however improbably) that the applicant passed the character test: “Considerations that may support refusing a visa to an applicant who failed the character test, referable to the reason that the applicant failed the character test … cannot be resurrected as part of the same decision‑making process to form the basis of a decision relying on cl 790.227” (at para. 104).
The proper course of action, in view of the Minister’s evident concern about people smuggling and the character of the applicant, would have been to use the powers under s. 501, but the Minister chose not to do so:
But s 501 was not used to refuse the plaintiff’s visa. The Minister was advised that its application was “not viable”, and the Minister said she was “not inclined” to exercise the power. That was a decision not to exercise a power in respect of someone who had failed the character test with a specific statutory criterion of “the national interest”, which was subject to personal exercise by the Minister and tabling requirements (at para. 103).
Ultimately, the majority judges concluded, the broad language of clause 790.227 had to be understood in the context of a broader statutory scheme, with distinct criteria and safeguards that would be undermined or vitiated by giving effect to the literal meaning of the “national interest” power:
If this Court were to accept the defendants’ construction, it would mean taking Parliament to have intended by cl 790.227 to leave the assessment of whether it is in the national interest for a person who is found to be a refugee to be refused a protection visa to the subjective evaluation of the Minister or a delegate on a case‑by-case basis, unconstrained by any of the other provisions that govern the decision to grant or refuse a protection visa. Or it would mean that the Minister or delegate could choose to administer a general policy that they personally consider to be in the national interest, unconstrained by the policy set by Parliament in the Act to regulate, in the national interest, the grant or refusal of such visas. Clause 790.227 and its cognate clauses would be ultimate control criteria to be utilised by the Executive to refuse protection visas without any need to consider, or be constrained by, the other criteria set by Parliament and the discretionary statutory powers provided by Parliament to refuse visas. While possible, the scope of any judicial review of the Minister or delegate’s subjective opinion would be limited. The defendants’ construction should be rejected (at para. 96).
ENT19 is a striking illustration of the importance of placing a textually broad power in context. What appears to be a proper purpose at first blush may, on careful analysis of a statutory scheme, turn out instead to be beyond the scope of a power that, on proper construction, is carefully cabined. Of course, in other statutory schemes, a broadly drawn discretionary power will mean what it says: here the dispensing power in Canada’s immigration and refugee legislation, exercisable on the basis of humanitarian and compassionate considerations, comes to mind. But a broadly drawn power only means what it says if this makes sense within the statutory scheme, properly construed. As with “another reason” in Thornton, “national interest” in ENT19 had to be read down when appreciated in its full context. In both cases, the importance of propriety of purpose and relevancy of considerations to ascertaining the true scope of discretionary powers is on full display.
This content has been updated on August 3, 2023 at 12:13.