FEDERAL COURT OF AUSTRALIA

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94

Appeal from:

BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929

File number:

NSD 1139 of 2019

Judges:

WHITE, WIGNEY AND BROMWICH JJ

Date of judgment:

28 May 2020

Catchwords:

MIGRATION – appeal from orders of the Federal Court of Australia dismissing an application for judicial review of a decision of the Minister – where Minister exercised discretion under s 501(1) to refuse to grant protection visa – no error by primary judge established – appeal dismissed

Legislation:

Migration Act 1958 (Cth) ss 5(1), 36(1B), 36(1C), 51A, 54, 55, 5657, 189, 197C, 198, 501(1), 501(6) 501(6)(d)(v), 501G(1)(e)

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Cases cited:

AEM20 v Minister for Home Affairs [2020] FCA 623

ARG15 v Minister for Immigration and Border Protection 250 FCR 109; [2016] FCAFC 174

AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27

BAL19 v Minister for Home Affairs [2019] FCA 2189

BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54

BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146

Doney v The Queen (1990) 171 CLR 207

EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681

Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225

Minister for Home Affairs v Buadromo 267 FCR 320; [2018] FCAFC 151

Minister for Home Affairs v Omar (2019) 373 ALR 569; [2019] FCAFC 188

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28

Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11

Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32

Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200

Plaintiff M46/2013 v Minister for Immigration and Border Protection (2014) 139 ALD 277; [2014] FCA 90

Sagar v O’Sullivan (2011) 193 FCR 311; [2011] FCA 182

Singh v Minister for Home Affairs [2020] FCAFC 7

SS v Australian Crime Commission (2009) 224 FCR 439; [2009] FCA 580

SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089

SZWCO v Minister for Immigration and Border Protection [2016] FCA 51

Date of hearing:

6 November 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

353

Counsel for the Appellant:

Mr S Beckett with Mr M Robinson

Counsel for the Respondent:

Mr P Herzfeld with Mr D Reynolds

Solicitor for the Respondent:

Minter Ellison Lawyers

Table of Corrections

19 April 2021

In [206] replaced “21 January 2014” with “12 January 2014 and in [333] and [335] replaced “12 January 2015” with “12 January 2014”.

ORDERS

NSD 1139 of 2019

BETWEEN:

BHL19

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

JUDGES:

WHITE, WIGNEY AND BROMWICH JJ

DATE OF ORDER:

28 may 2020

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    The circumstances of this appeal and the provisions in the Migration Act 1958 (Cth) (the Act) which are relevant to it are set out in the reasons of Bromwich J. I agree that the appeal should be dismissed and with the orders proposed by his Honour. Subject to one matter, I agree generally with the reasons of Bromwich J and do not wish to add to them.

2    My qualification relates to the appellant’s submission that his letter of 8 July 2015 should be regarded as having been given to the Minister within the meaning of s 55(1) of the Act because the effect of his migration agents’ letter of 4 September 2017 had been to incorporate it by reference. I wish to state my own reasons for concluding that that submission should be rejected.

3    The appellant’s submission, advanced following a question from the Bench during the hearing of the appeal, was that his letter of 8 July 2015 had been “given to the Minister” under s 55 because it had been incorporated by reference in his migration agents’ response of 4 September 2017 to the Minister’s notice of intention to consider refusal ( the NOICR). The argument was that, the information in the letter having been given under s 55, it was material to which the Minister was, by s 54(1) and (2)(c), to have regard. The appellant’s alternative submission was that the information had been given (again by incorporation by reference) in response to an invitation by the Minister pursuant to s 56(2) and that information of that kind was also encompassed by s 55.

4    For the incorporation by reference, the appellant relied on the first paragraph in his migration agents’ response of 4 September 2017:

Our client, [BHL19], applied for a protection visa on 27 June 2016 and attended a protection visa interview on 8 July 2016. On 7 August 2017 [BHL19] received a ‘Notice of intention to consider refusal of his TPV application’ (‘Notice of intention to refuse’). We now provide the following submission and accompanying documents in support of [BHL19’s] visa application. We continue to rely on all evidence and submissions previously provided by or on behalf of our client.

(Emphasis added)

5    The appellant’s submission was based on the emphasised last sentence.

6    The appellant had not made a submission to this effect before the primary Judge. However, counsel for the Minister accepted, quite fairly, that there was no additional material which the Minister could have put before the primary Judge in answer to the submission and did not object to the submission being made for the first time on the appeal.

7    The appellant’s submission gives rise to two principal issues. The first is whether information is “given” under s 55 if an applicant, instead of providing the information to the Minister, simply refers the Minister to information which may otherwise be available to the Minister.

8    The second is whether, even if so, a statement expressed in the general terms used by the appellant’s migration agents were sufficient as an incorporation by reference of the letter of 8 July 2015.

9    As to the first of these matters, there are some textual and contextual matters in ss 54-58 of the Act that the information relied on is to be given to the Minister and not just be the subject of a reference.

10    The first is that ss 54-58 use the word “give” and not a term such as “referred to”. A natural meaning of the word “give” is to deliver, bestow or hand over – see the first meaning of the word in the Macquarie Dictionary. None of the other meanings of the term “give” in the Macquarie Dictionary give it, as a freestanding term, the meaning of “provide a reference to”.

11    The second is that it is natural to understand that, having imposed an obligation on the Minister to have regard to certain information, ss 54-58 intend that there be some certainty as to the matters which are the subject of the obligation. Certainty of that kind is lacking if it is sufficient for an applicant simply to incorporate other documents by a generally expressed reference of the kind used by the appellant’s migration agents.

12    Related to that consideration is that the structure of ss 54-58 suggests that the information to which the Minister is required to have regard be of a reasonably readily identifiable kind. That is self-evidently so in the case of s 54(2)(a) and (b). Moreover, s 56(2) contemplates that the Minister may give an invitation to an applicant to give additional information “in a specified way” which, by s 58(1), may be in writing, at an interview or by telephone. That too seems to connote an actual provision of information in a manner which is readily identifiable.

13    However, it is unnecessary to express a concluded view about these matters. That is because, even if information may be given by the document provided referring to some other document, the sentence in the migration agents’ letter of 4 September 2017 on which the appellant now relies cannot reasonably be understood as incorporating reference to the appellant’s letter of 8 July 2015. A number of matters indicate that that is so:

(1)    when the first paragraph of the migration agents’ letter is read as a whole, it is natural to understand (and for the Minister to understand) the emphasised sentence as a reference to the evidence and submissions previously provided by or on behalf of the appellant in support of his application for a protection visa, and not otherwise;

(2)    the letter of 8 July 2015 was not sent to the Minister in support of an application for a TPV. It was directed to a different subject matter, namely, the appellant’s request for an exercise of the discretion of the Minister under s 195A and/or s 197AB of the Act allowing him to be released from immigration detention. Considered objectively, that militates against a conclusion that the emphasised sentence was intended to encompass reference to it;

(3)    the migration agents’ statement that “we continue to rely” on all evidence and submissions previously provided is, considered objectively, particularly suggestive of an intention to refer to evidence and submissions provided in support of the application for the TPV. It is inherently unlikely that the migration agents were intending to incorporate by reference all evidence and all submissions previously provided by or on behalf of the appellant irrespective of the purpose for which that material had been provided and irrespective of the relevance of that material to the application for the TPV then being made;

(4)    independently of these considerations, it is natural on an objective reading to understand the emphasised sentence as a statement by the migration agents that, irrespective of the content of the response of 4 September 2017, the agents were not abandoning reliance on the evidence and submissions previously provided in support of the application for the TPV, and was not implying that those matters may carry less weight; and

(5)    there is no evidence that the migration agents were even aware, at 4 September 2017, of the appellant’s letter of 8 July 2015. This adds to the objective improbability of the agents having intended by the emphasised sentence to incorporate reference to it.

14    For these reasons, even if it be permissible for information to be “given” to the Minister by reference, I do not consider that it can be said that the sentence relied upon by the appellant had the effect of incorporating the letter of 8 July 2015.

15    This conclusion also means that the appellant’s alternative submission to the effect that the information was given in response to an invitation by the Minister pursuant to s 56(2), must fail. But in any event, the NOICR to which the migration agents were responding appears to have been issued pursuant to s 57(2), and not pursuant to s 56(2).

16    For these reasons, I would reject the new submission made by the appellant on the hearing of the appeal.

17    As indicated at the commencement of these reasons, I agree generally with the remaining reasons of Bromwich J and that the appeal should be dismissed with costs. It is not necessary to address the Minister’s notice of contention.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate:

Dated:    28 May 2020

REASONS FOR JUDGMENT

WIGNEY J:

18    I dissent.

19    I have read the separate reasons of both White J and Bromwich J. I do not disagree that the appeal grounds that hinge on the proposition that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs failed to have regard to a mandatory consideration in deciding to refuse the appellant’s visa application have no merit. I am, however, unable to agree that the Minister acted reasonably, in the legal sense, in deciding to refuse the appellant’s protection visa application on the basis that he did not satisfy the character test in subs 501(6) of the Migration Act 1958 (Cth).

20    In his reasons for judgment, the primary judge observed (Judgment at [99]):

There must be a point at which a perceived risk is so unlikely, or the nature of the risk is so trivial, that a decision to refuse a visa under s 501(1), on the basis that the Minister was not satisfied that a visa applicant passed the character test by reason of s 501(6)(d)(v), would be legally unreasonable in circumstances where the consequences of the decision are of the kind they are here.

21    His Honour found that this was not such a case. White and Bromwich JJ agree.

22    I respectfully disagree. In my view this is just such a case.

23    The flaws and deficiencies in the Minister’s reasoning and factual findings concerning the supposed risk that the appellant might pose to the Australian community and the perfunctory and formulaic consideration that the Minister gave to the harsh and seriously deleterious effect that his decision would have on the appellant compel me to the conclusion that this decision reached the point of unreasonableness referred to by the primary judge. Not only that, but when one stands back and considers the appellant’s circumstances and the effect of the decision, the conclusion that this decision was plainly unjust and manifestly disproportionate is, in my view, unavoidable.

24    It is necessary to set out the facts and circumstances of the appellant’s case in some detail to fully appreciate why that is so.

Relevant facts and circumstances

25    The appellant arrived in Australia by boat on 15 November 2012. He was detained in immigration detention for a period of time, presumably on the basis that he did not have a visa and was accordingly an unlawful non-citizen.

26    On about 16 January 2013, the appellant was granted a Temporary Humanitarian Stay visa and an accompanying bridging visa. He was accordingly released from immigration detention. He continued to peacefully reside in the Australian community without any adverse incident or occurrence for almost a year until the events that ultimately became the basis for the Minister’s decision occurred.

The incident on 12 January 2014

27    The following account of the incident that occurred on 12 January 2014 is taken mainly from primary source documents, including the contemporaneous documentary records. The appellant gave an account of the incident in both a letter and statement he provided to the Minister. That account was consistent with, or at least not contradicted in any way by, the contemporaneous records.

28    On 12 January 2014, the appellant was at certain premises in inner Sydney for the purposes of getting a massage. He paid for that massage, but, before he received it, he received a telephone call informing him that his mother had been killed by a bomb blast in Syria. Not surprisingly, he became upset and distressed upon the receipt of that news. He also demanded his money back as he had not received the massage. The combination of those two circumstances resulted in a dispute with the owner of the premises. The police were eventually called.

29    The following description of the events is taken from a contemporaneous police report:

About 20:45pm on Sunday 12th January 2014 police attended Sabal Massage, 810 George St Haymarket, following calls to police for a dispute for a refund payment of a massage received by [the appellant]. [The appellant] is currently residing in [Sydney suburb] while completing a TAFE course and is a temporary resident in Australia holding refugee status. Police spoke with [the appellant] outside the location where he stated that he wanted to be refunded after his massage. Police spoke with management of the massage who stated to police that [the appellant] had received his massage as advertised, despite [the appellant] removing his underwear before the massage, [the appellant] stated to police that he stopped the massage after receiving a call from a family member informing him of the death of his mother in his home country of Syria. After police spoke with staff of the massage parlour, [the appellant’s] behaviour became more erratic and he became unable to control his emotions … While speaking to police [the appellant] stated that he ‘no longer wanted to live in this world’ and told police that he wished ‘to return to Syria, put a vest and go boom’ while motioning an explosion with his arms. Intel report relating to threats in Syria to be created. Police made attempts to calm [the appellant] as he increasingly became more emotionally unstable. He said to police ‘I don’t want to hurt you, only myself.’ Police became concerned for the mental state of [the appellant] as [sic] requested an ambulance to attend for a mental health assessment, due to [the appellant] saying that he wanted to hurt himself, he no longer wished to live and due to him physically trying to hurt himself, by hitting a wall with his fist and his forehead. Ambulance officers attended a short time later and [the appellant] was conveyed to St Vincents Hospital about 21:30pm for mental health assessment … Police assisted with the convey and remained at St Vincents until 23:50pm, while [the appellant] awaited assessment from the mental health team.

30    An ambulance record from the evening in question contains the following entry:

On Examination

Primary Survey        no immediate life threat

Secondary Survey    behaviour agitated & bizarre & inappropriate & threatening; crying / tearful; concentration short attention span

Initial Assessment    emotional distress; emotional distress; depression; psychiatric episode

31    As the police report recorded, the police took the appellant to St Vincent’s Hospital to obtain a mental health assessment. The report completed by the police officer who requested that assessment contained the following description of the circumstances leading to the request for assessment:

[The appellant] became involved in a civil dispute with a massage parlour about services and payment. Afterwards while speaking with Police he stated his mum died back in Syria and now he wants to die, that he wants to back [sic] to Syria and blow himself up. Also stated I want to die my mum is dead and I want to too.

32    It is clear that the appellant’s mental health was assessed at the hospital. The material that was before the Minister does not include any contemporaneous report of that assessment.

33    In a letter addressed to the Minister dated 8 July 2015, which the appellant wrote in support of his request to be released from immigration detention, the appellant stated that he was seen by a psychologist at the hospital. He told the psychologist about his mother’s death and the psychologist explained that he was “going through shock because of the news”. The appellant said that he was released and allowed to leave the hospital after a few hours.

34    While there is no contemporaneous record of the mental health assessment of the appellant which was carried out on the evening of the 12 January 2014 incident, the appellant claimed that he suffered from bipolar disorder at the time. Medical records relating to treatment received by the appellant throughout 2014 and 2015 confirm that the appellant suffered a number of manic episodes during that period that were attributed to his bipolar disorder. Those records are referred to in more detail later.

35    In the absence of any contrary evidence, there could be little doubt that the incident which occurred on 12 January 2014 was the product of both the appellant’s distress and anxiety at having been told that his mother had been killed and his underlying mental illness. As will be seen, the Minister ultimately accepted that this was the case.

36    It is readily apparent from the police records concerning the incident that the police did not arrest or charge the appellant, nor take any further action concerning the incident after the appellant was taken to the hospital for a mental health assessment. The police did, however, subsequently conduct an intelligence assessment. The nature of that assessment is referred to later.

37    The obvious inference to be drawn from the fact that the appellant was not arrested, charged, or detained by the police as a result of the incident on 12 January 2014 is that, like the psychologist at the hospital, the police assessed this incident as being a relatively minor incident which was the direct result of the appellant becoming agitated and distressed when he received news that his mother had died. The police plainly did not consider that the appellant had committed an offence, or that he presented any risk to the public. Plainly he would have been detained if that were the case.

The appellant is detained in immigration detention

38    According to the appellant, on about 3 February 2014 he was detained and placed in immigration detention at the Villawood Immigration Detention Centre. The basis upon which the appellant was detained is unclear and is not recorded in any Departmental document or other record which was included in the material that was before the Minister. As will be seen, the Minister’s reasons for refusing the appellant’s visa application make no reference to the appellant’s detention or the reasons for it. There is no suggestion in the materials that the appellant’s bridging visa was cancelled.

39    The appellant claimed that he had applied for a renewal of his visa before the 12 January 2014 incident. He was told that he would have to wait for the Minister to make a decision in relation to that renewal application. It appears that the appellant was told that his visa had expired when he was taken into immigration detention on 3 February 2014. Whether that was in fact the case is, at best, unclear. The appellant subsequently obtained a copy of a Departmental record which gave the following reasons for the appellant’s detention:

Risk Comments:    Information rec’d from NSW POL that client threatened to kill himself and others with a bomb strapped to his chest (vest).

40    That was an apparent reference to the incident which occurred on 12 January 2014. It is not entirely accurate. The police records of the incident stated only that the appellant threatened to kill himself, not “others”. The Department “risk comments” also neglect to note that the threat made by the appellant was to blow himself up in Syria. There was no suggestion that the appellant threatened to do any such thing in Australia.

The police intelligence assessment

41    On 4 February 2014, the appellant was spoken to by a police officer at the Villawood detention centre for the purposes of an intelligence assessment. As the police report extracted earlier indicated, the assessment was conducted because of the threats that the appellant made during the incident which occurred on 12 January 2014 about blowing himself up in Syria. The interview was not recorded, though the police officer who interviewed the appellant took notes in his police notebook. Those notes are the only contemporaneous record of the interview.

42    The police officer who conducted the interview did not make a statement about the interview until June 2017. It may be inferred, in all the circumstances, that the police officer only made a statement at the request of the Minister’s Department. That inference is available because the statement was made shortly before the Department sent the appellant a notice advising that the Minister intended to refuse his visa application on character grounds. There is no other reasonable or logical explanation for why the officer would have made a statement at this time given the length of time that had passed since the incident and the fact that the police took no action in relation to it.

43    In any event, the contemporaneous notes made by the police officer recorded the following (verbatim):

Met with a man in Jakarta who represented Al Quada [sic] in June 2013 to November 2013

-    Big man from Australia Rahib, white, black clothes maybe steve (Olsen)

-    Travelled to Afghanistan

-    30 min out of Jakarta on the beach. 4-5 days

-    Training on Sumbawa 6 months

-    Train to go back and fight in his country.

-    M60 in Bondi, Australian man, Chester Hill mosque. RPGs warehouse, workshop, mechanic, many guns

-    send 15-16 men with $100,000

-    Muslim man.

-    Syrian Army.

-    Al Nussra.

-    Derra. (hometown).

-    Stopped the Sheik and told him about Syria

-    Went to Jakarta via plane.

-    friends IBRAHIM [mobile phone number redacted] money Vodafone supermarket trolley. call him everyday.

-    $5000 us to get Australia

-    Mohammad IBRAHIM.

-    Lakemba Kingdom Restaurant Albawawee Mohammed.

-    Mercedes black

-    POI [name indecipherable]

-    Attends Friday at the mosque.

-    [indecipherable] Gravel road.

-    [indecipherable]

-    Australian army weapons.

44    The notes go on to record that the police returned to Villawood detention centre on 6 February 2014 and asked the appellant to sign his notebook to indicate that the police were permitted to access his mobile phone. The balance of the police officer’s notes are blacked-out. The basis upon which the concluding parts of the officer’s notes were blacked-out is unclear and unexplained.

45    The reason I have set out the police officer’s notes of his conversation with the appellant in full is that they demonstrate that it is almost impossible to glean any coherent or logical narrative from the notes. Plainly the appellant was recounting certain information to the police, including information about other people, events, and observations. It is, however, extremely difficult, if not almost impossible, to ascertain from the notes whether that information about those events and observations is information given to the appellant by other people, or information about what the appellant himself said or did.

46    To give but one example, the opening lines of the notes refer to a meeting with a man in Jakarta who represented Al Qaeda. That meeting is recorded to have taken place sometime between June 2013 and November 2013. It is, however, unclear whether the appellant was there referring to himself meeting a man at that time or place, or some other person doing so. As will be seen, the Minister interpreted the note as referring to a meeting the appellant had in Jakarta in 2013. The difficulty with that interpretation of the note, however, is that there is no suggestion, let alone any independent evidence, that the appellant was in Indonesia, or even could have been in Indonesia, at any time during 2013. He arrived in Australia by boat in November 2012 and was only released from immigration detention on a temporary visa in January 2013. The suggestion that he may have travelled to Indonesia later that year and then somehow returned to Australia by year’s end is, in all the circumstances, nothing short of fanciful. It is highly unlikely that the appellant would have been permitted to return to Australia if he left for Indonesia sometime in 2013.

47    It should, in this context, perhaps be added that the Minister plainly would have been in a position to ascertain if the appellant had in fact been in Indonesia during 2013 as the note, at least according to the Minister, supposedly recorded. The Minister undoubtedly has access to international travel records. It seems, however, that the Minister did not trouble himself to ascertain whether the appellant had been to Indonesia in 2013, or, if he did, he did not disclose that in his reasons.

48    Most of the other information in the note is similarly ambiguous and unclear. The narrative recorded in the notes is also, in parts at least, difficult to decipher or appears to be somewhat nonsensical.

49    That assessment of the information recorded in the police officer’s notes is entirely consistent with the appellant’s statement concerning the circumstances in which the interview occurred and the truth and reliability of the information which he provided during the interview. The appellant’s statement included the following in that regard:

In February 2014, I was suffering from acute bipolar. I was particularly manic during this time and the consequence is that you feel like you’re invisible and the most important person in the world. I was so manic that I was having hallucinations. The police came to speak to me while I was in detention and they kept asking me questions about Syria and the situation in Syria. I knew what they were looking for and because I was so manic, I decided to give them all the information they wanted. I started to tell them stories that surprised them and I could see that they were getting excited so I continued to tell them what I thought they wanted to hear.

The interview lasted for about 2 hours and at the end the officers asked if there was anything else that I wanted to tell them. I replied, ‘yes, everything I have just told you is a lie’. I think this admission that everything was false is documented in the copy of the police notebook provided to me where the text has been blacked out using a marker. The officers were very shocked when I told them and I don’t believe that they knew anything about my bipolar because if they did I don’t believe they would have interviewed me. I believe I was having a significant bipolar episode at this time and I was so sick that things I said definitely shouldn’t have been taken as genuine.

The officers went away and a few months later my Case Manager told me that I was no longer being investigated and that I had been cleared.

50    As has already been noted, the police officer who was responsible for the intelligence assessment and who conducted the interview with the appellant on 4 February 2014 did not make a statement concerning the interview until just over three and a half years after the interview. The officer annexed his interview notes to the statement, but said nothing further about the content or subject matter of the interview. Nor did he say anything concerning the appellant’s demeanour during the interview.

51    Significantly, however, the officer stated that he completed the intelligence assessment and disseminated a report of that assessment to another police officer on 6 February 2014, two days after the interview. There is no indication of what that assessment was. It should be reiterated, in this context, that the police officer’s statement – as opposed to the intelligence assessment – was prepared fairly shortly before the Minister’s Department sent the appellant a notice advising him that the Minister intended to refuse his visa under subs 501(1) of the Act. As has ready been noted, the inescapable inference is that the statement was prepared at the request of the Minister’s Department. There is, however, no indication at all as to whether the Minister or his Department requested or obtained a copy of the police officer’s intelligence assessment, or, if that occurred, whether the intelligence assessment was considered by the Department or the Minister.

52    Surely if the police intelligence assessment was in any way adverse to the appellant, it would have been highly material to the Minister’s decision and would have been obtained, analysed, and provided to the Minister. The fact that the Minister’s reasons make no reference whatsoever to the intelligence assessment is, to say the least, very surprising. That is all the more so given the appellant’s claim that he was told by an officer of the Department that he had been cleared and was no longer being investigated. The Minister’s reasons do not refute that claim. Nor, as will be seen, do they refute the appellant’s claim that the Australian Security Intelligence Organisation (ASIO) had “cleared him of being of any adverse interest”. The Minister’s silence in relation to that claim, and in relation to any intelligence or security assessment of the appellant by the police or ASIO, was, and is, deafening.

Conduct in immigration detention

53    The appellant was involved in a number of incidents while he remained in immigration detention. It is again important to have regard to the primary source material in relation to those incidents. That material comprised a series of very brief incident reports. That was the only material that was before the Minister for the purposes of his decision, aside from the appellant’s stated response to the reports.

54    The first incident was recorded in an incident report dated 3 March 2014. That report simply stated: “[d]etainee [the appellant] stated that he will throw hot water mixed with sugar on another detainee’s face”. The report went on to note that the appellant was “spoken to by CSM [Client Services Manager] [name redacted] with regards to his rights and responsibilities”. It is tolerably clear that the alleged threat was not carried out and that no further action was taken by the detention authorities in respect of that incident.

55    The appellant stated, in relation to this incident, that it was “provoked by an older man” who pushed him because he was being noisy in the kitchen. The appellant said that he became angry because he believed that he had done nothing wrong and that he did not touch the other man or harm him in any way. There is nothing to suggest that this was not an accurate and reliable account of what, on just about any view, was a very minor incident.

56    The second incident, which is said to have occurred on 24 June 2014, was recorded in an incident report which was first generated on 4 July 2014. That report in fact recorded a complaint which had been made by the appellant, not the other way around. It stated that, on 24 July 2014 (though that date appears to be a typographical error), the appellant told a detention officer that another detainee had entered the computer room and assaulted him. It was reported, in that context, that the appellant had then stated that he would kill that detainee. That statement appeared to have been made to the detention officer, not the fellow detainee. There is again no suggestion that anyone was harmed, or that the detention officer believed that there was any risk that the appellant would, or even might, in fact carry out the threat, or that any action of any kind was taken against the appellant by the detention authorities as a result of this incident. The report itself characterised the incident as being minor.

57    The appellant stated, in relation to this incident, that the assault by the other detainee in the computer room was a “completely unprovoked attack” and that he was “still struggling with [his] health at this stage, so [he] became upset”. The appellant said that he did not touch or harm the other detainee and did not intend to do so. There is again no reason to doubt the accuracy or reliability of that account of this incident.

58    The third alleged incident occurred on 6 April 2015. The incident report in relation to that incident recorded that the appellant approached a detention officer and stated that the appellant wanted to kill him. The officer asked why and the appellant replied “its because you are always serious”. It is recorded that the appellant then tried to get the officer to say phrases in Arabic which meant “Praise Allah”. The officer said that he would not do that and the appellant then walked away “looking upset”. It is again apparent that no action was taken against the appellant in relation to this incident, other than that he was spoken to by another officer who “reminded him of his rights and responsibilities”. Plainly nobody took the threat seriously.

59    The appellant stated that he did not recall ever threatening a detention officer. He stated, however, that this alleged incident occurred during “an episode of severe mental health”. That would appear to be consistent with the nature of the incident as recorded in the report.

60    The fourth alleged incident concerned a telephone call that the appellant made to an unnamed officer of the Department on 20 April 2015. It is necessary to provide some context for this telephone call. At this point in time, the appellant had been in immigration detention for just over 14 months. Shortly after the call was made, the appellant wrote to the Minister complaining about his detention and requesting the Minister to exercise his discretion to release him into the community. In that letter, the appellant sought to explain, amongst other things, why he had said what he did about blowing himself up in Syria during the 12 January 2014 incident. It appears to be fairly clear that the telephone call was a prelude to that written request to the Minister.

61    The report itself is said to concern or report an incident during which the appellant “threatened self harm if he is sent back to his country”. The report stated as follows in relation to that alleged threat:

At approx 12:45 pm of 20 April 2015, DIBP ON Call [redacted] informed Duty Operations Manager [redacted] that detainee [the appellant] threatened self harm. Detainee had rung the GFU unit of DIBP to complain about his request for Ministerial intervention at approx 12:35 pm and mentioned that if he is sent back to Syria, “he will blow himself up”. Detainee also said that he has been in detention for a long time for “no reason” and “had no trouble with Police”. Detainee has been referred to Mental Health. SIS has been submitted by DIBP.

62    The following points may be made concerning this report.

63    First, it is readily apparent that the statement allegedly made by the appellant during the telephone call was made in the context about his complaint about his detention. It is equally clear that the appellant believed that his detention was a direct result of the incident which occurred on 12 January 2014.

64    Second, the account of what the appellant said during the telephone call is at least a third-hand account. The telephone call was made to a person who was on duty at the “GFU [Global Feedback Unit]”, who then reported it to the Duty Operations Manager, who in turn reported it to the person who completed the incident report. There is no first-hand account of the conversation.

65    Third, the appellant stated as follows in relation to this alleged incident:

The DIBP also refers to an incident in April 2015 where I allegedly threated [sic] to blow myself up again if I was returned to Syria. I recall that this incident was based on a misunderstanding. I had called the Global Feedback Unit to speak to them being in detention for such a long time. I had an Arabic interpreter assisting me and during the course of the conversation I was explaining the January 2014 incident and the allegations made against me to the Global Feedback Unit. The misunderstanding occurred because the Global Feedback Unit believed that I was making fresh threats, which wasn’t correct.

66    The appellant’s explanation of the incident report in relation to this telephone call was and is entirely credible and plausible in all the circumstances. There is no sound basis for doubting it. The circumstances all clearly point to the fact that the appellant was seeking to explain the 12 January 2014 incident. As will be seen, the Minister found otherwise, though his reasons for so doing are far from satisfactory, let alone persuasive.

Reports relating to security issues while in detention

67    The reports provided to the Minister included two reports concerning alleged “security issues” which allegedly occurred while the appellant was in immigration detention.

68    The first report, entitled “Stakeholder Information Sheet”, was prepared by a detention officer on 7 February 2014. It recorded as follows:

During a consultation with the abovementioned detainee, he disclosed the following:

He has been employed, on a voluntary basis, by a company in Lakemba, transferring money from Australia to Syria to be used for ‘the war’.

He is a friend of Osama Bin Laden’s son who has offered to send guns to him in Australia.

He extolled the virtues and philosophy of Osama Bin Laden at length.

On parting, he shook my hand, said thank you, then uttered ‘Osama Bin Laden’

69    This “consultation” occurred shortly after the appellant was taken into immigration detention. As has already been noted, the appellant stated that at this time he was suffering “acute bipolar” and was “so manic that [he] was having hallucinations”. That is, in any event, readily apparent from the nature of the statements that the appellant was recorded to have made to the officer. Given that the appellant was in immigration detention at the time, the suggestion that he was employed to send money back to Syria and that Osama Bin Laden’s son was offering to send guns to him were self-evidently absurd. Not surprisingly, there is no suggestion that anyone further investigated those absurd claims, or that the claims were investigated and found to have had any substance or basis in reality.

70    In his statement provided to the Minister, the appellant stated as follows in relation to the suggestion that he had anything to do with Osama Bin Laden:

Secondly, I want to clarify that I do not have, nor have I ever had, links to Al Qaeda, Osama Bin Laden, ISIL or any other religious group or organisation operating in Australia, Syria or any other country. This has been accepted by ASIO, who conducted a thorough assessment about me and cleared me as being of any adverse interest to them. If I had links to any groups or organisations or I was considered a threat, I would not have been cleared by ASIO.

71    It should perhaps be noted in this context that, aside from statements allegedly made by the appellant, there was nothing in any of the material which was before the Minister to suggest that the appellant did in fact have any links or association with Al Qaeda, Osama Bin Laden, ISIL, or any other religious group or organisation operating in Australia, Syria, or any other country.

72    The second report, entitled “Security Information Report”, is of some importance as it provided the basis for a significant adverse finding that the Minister made against the appellant. It accordingly should be set out in full:

I, [redacted] was rostered as Mike 1 in Hotham compound from 2000 to 0800 on 07/04/2015. At approximately 2050 hours, Detainee known to me as [the appellant] a resident of Hotham compound residing in Unit 3 Room 6 attended Hotham Officer’s station and demanded sugar in a loud voice and staring at staff with bulging red eyes. Ten minutes later at 2100 hours, He attended Hotham Officer’s station once again and demanded tea bags in the same manner despite having a bag full of tea inside Hotham Unit 3 common kitchen. Speaking to Hotham detainees few minutes after the incident, I was told that there has been a lot of concern and apprehension amongst fellow Hotham Detainees regarding his ongoing weird behaviour in the compound. He allegedly were [sic] entering other detainees rooms without their permission and pissing most of them off really badly. They warned that they might not be able to control themselves from harming him if he does not stop trespassing in their rooms even if he is not taking anything away. The other day he threatened to kill a Hotham Staff member because he was allegedly hearing voices telling him that he is an infidel. Also he allegedly recruiting fellow detainees to fight for ISIL in Syria.

(Emphasis added.)

73    The following points may be made concerning this report.

74    First, the report is entirely consistent with the appellant’s claims and the contemporaneous medical records that the appellant was suffering from acute bipolar and having hallucinations at this time. The appellant was reported as having “bulging red eyes” and the reporting officer plainly considered that his actions were highly unusual, which is no doubt why he or she spoke to the appellant’s fellow detainees about the appellant’s behaviour. The other detainees referred to the appellant’s “ongoing weird behaviour”.

75    Second, the reference in the report to the appellant having previously threatened a staff member would appear to be a reference to the 6 April 2015 incident referred to earlier. The suggestion that the appellant was “hearing voices telling him that he is an infidel” is again entirely consistent with the appellant suffering the effects of his acute bipolar condition at this time.

76    Third, and significantly, the source of the information in the final sentence of the report, that the appellant was “allegedly recruiting fellow detainees to fight for ISIL in Syria”, is somewhat unclear. It is not said to be something about which the reporting officer had any direct or firsthand knowledge. It is unclear whether this was something that had been reported by unnamed fellow detainees, or was something the officer was told by someone else. There is no separate report in relation to that allegation. Nor is there any suggestion that it was something that was further investigated or followed up by the detention authorities, or the Minister’s Department or anyone else. There is no indication that any action was taken against the appellant as a result of this report.

77    Fourth, the appellant stated that the alleged incidents referred to in this report, including the claim that he had tried to recruit other detainees to fight for ISIL, occurred during a time that he was suffering acute bipolar. He said that, given his mental state at the time, he had no recollection of ever trying to recruit other detainees to fight for ISIL. Given that the fellow detainees were all self-evidently in immigration detention, it would, in any event, have been a fairly absurd thing to do.

Medical reports and the appellant’s mental health

78    The Minister appeared to accept that all of the relevant incidents, including the 12 January 2014 incident, occurred during a period of time that the appellant’s behaviour was impaired by bipolar disorder. It is nevertheless useful to identify what was said about that in the contemporaneous documentation.

79    A report from the International Health and Medical Services (IHMS) noted that the appellant “required a psychiatric assessment and admission in a hospital in between 11-14 Mar 2014 due to angry outburst and disturbed behaviour”. An IHMS psychiatrist commented on 17 March 2014 that the appellant’s “irrational behaviour was a result of [the] stress of moving back to the detention centre” and noted that the appellant had been prescribed “anti-psychotic medication”. On 20 August 2014, an IHMS psychiatrist recommended that the appellant be released to community detention, no doubt because his psychiatric condition was being worsened by his ongoing detention. On 26 September 2014, an IHMS psychiatrist commented that the appellant may be suffering from “Bipolar Affective Disorder”. On 5 November 2014, the psychiatrist advised that the appellant may have “experienced some dissociative symptoms due to his difficult situation and anxiety” and that “[o]ngoing mental health management [was] required”. Finally, the report noted that the psychiatrist “acknowledged [that the appellant’s] irrational behaviour is directly linked to his return to held detention” and advised that the “detention environment is not appropriate or conducive to [the appellant’s] major mental health condition”.

80    The advice and recommendations of the IHMS psychiatrist in relation to the appellant’s mental health was plainly not acted on by the Minister or his Department. The appellant remained, and apparently still remains, in immigration detention. The more significant point, for present purposes at least, is that the IHMS psychiatrists were in no doubt that the appellant’s irrational behaviour was the product of his mental health issues and ongoing detention.

81    A document which contained “Case History Notes” prepared in the emergency department of Bankstown-Lidcombe Hospital on 26 February 2015 recorded that according to “police and ambulance handover”, the appellant had been “agitated” and had been “scheduled as [he] believed that jesus had been in the detention centre”. The appellant was “found to be very agi[t]ated and aggressive and thought disordered” and “manic”. He was prescribed various medication.

82    A discharge summary from an unnamed hospital dated 1 March 2015 referred to the appellant presenting at the hospital with “grandiose ideas” and diagnosed “Bipolar affective disorder, current episode hypomanic”.

83    The appellant stated that the incidents which occurred between January 2014 and April 2015 represented “a particularly difficult and unfortunate period in [his] life and were very out of character”. His health was “at its worst” during that period. As for his current health and behaviour, he stated:

My mental health concerns have since improved, I don’t require any medication and am managing my condition well. It appears that my health deteriorated between 2014-2015 because of the intense stress that I was under, was triggered by information that my mother had been killed in an explosion (which I later found out was not correct) and exacerbated by my re-detention into a high security centre where I was amongst criminals during a period when I was sick and vulnerable. I have since learned techniques to manage my stress and I also have excellent support from members of the community which has helped me a lot.

84    As will be seen, the Minister accepted that the appellant’s mental health and behaviour had improved since April 2015.

Behaviour between April 2015 and the date of the Minister’s decision

85    The appellant was not involved in any adverse incidents or bad behaviour in the almost four-year period between April 2015, which was the date of the last reported incident in immigration detention, and 4 February 2019, the date that the Minister refused the appellant’s visa application on character grounds.

86    Not only had the appellant not been involved in any adverse incidents, but there was evidence before the Minister which clearly demonstrated that his behaviour in immigration detention had been exemplary. A letter from a senior officer of the Australian Border Force dated 26 June 2017 reported that the appellant had been in immigration detention on Christmas Island since 3 November 2016 and that, on 22 June 2017, he was transferred to an “Incentive Program” which was designed to “reward detainees with ongoing good behaviour and positive demeanour”. A certificate of appreciation signed by the officer on 22 June 2017 recorded that the Australian Border Force had identified the appellant as “someone who has demonstrated on-going positive behaviours in immigration detention and has contributed to the good order of the Christmas Island Immigration Detention Centre”.

87    The appellant also supplied the Minister with a number of impressive character testimonials which had been provided by members of the public who had interacted with the appellant during the years that he had been in detention.

88    The appellant further supplied the Minister with a statutory declaration in which he declared that he had never been charged, let alone convicted, of any criminal offence in any country. There was nothing to suggest otherwise.

The Minister’s reasons

89    The Minister’s reasons are divided into two main sections. The first section dealt with the Minister’s findings in relation to the character test. The second section dealt with the Minister’s exercise of his discretion.

90    Upon close consideration, a number of the critical findings made by the Minister, or critical elements of the Minister’s reasoning, may be seen to be fundamentally flawed and manifestly unsatisfactory, to the point of being irrational or illogical.

Findings and reasoning in relation to the character test

91    The only element of the character test that the Minister addressed was the element in subs 501(6)(d)(v) of the Act, which provided that a person does not pass the character test if, in the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would “represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way”.

92    The Minister addressed that element of the character test by reference to the incident which occurred on 12 January 2014, the statements the appellant made to the police on 4 February 2014, and the appellant’s conduct while in immigration detention.

Findings concerning the 12 January 2014 incident

93    While the Minister’s reasons recorded that he “noted” various things in relation to the 12 January 2014 incident, the only actual finding he made concerning that incident was that the appellant “did make a threat to kill himself with a bomb on this occasion”: Reasons at [16]. It is perhaps not surprising that the Minister made that finding as it was essentially not in dispute. It would, however, be erroneous to consider that finding in isolation or out of context.

94    It is significant, in that regard, that the Minister did not at any point reject the appellant’s account of what occurred during this incident. Nor did the Minister reject the appellant’s explanation for how he came to make that threat. Specifically, the Minister did not reject or even question that: the appellant’s threat was limited to blowing himself up in Syria and that there was no suggestion that he would or might do so in Australia; the threat was the direct result of the appellant hearing news of his mother’s death as a result of a bomb blast in Syria; the appellant’s response to that news was exacerbated by his, at that stage, untreated acute bipolar disorder; and the appellant was not arrested or charged with any offence arising out of the incident. A fair reading of the Minister’s reasons suggests that he accepted those claims by the appellant, but even if that is not the case, the Minister certainly did not reject any of them. Nor, it might be added, was there any sound basis for rejecting any of those claims given the nature and content of the material that was before the Minister.

95    The fact that the Minister did not reject the appellant’s claims in relation to the 12 January 2014 incident is particularly relevant when one comes to consider the Minister’s assessment of the risk posed by the appellant. As will be seen, that assessment was illogical and involved a mischaracterisation of the incident and a fundamental failure to appreciate the extenuating circumstances in which it occurred.

Findings in relation to the statements made to the police

96    The Minister again “noted” a number of things in relation to this topic, but his finding was limited to a finding that “the fact that he made those claims at all may demonstrate an ideology of security concern, which I take seriously particularly given the current global context”: Reasons at [21]. That rather curious finding raises more questions than it answers: first, what were “those claims”; second, what is the “ideology of security concern”; third, what is the “current global context”; and fourth, what of the appellant’s clear claim that the events or occurrences he reported to the police were nonsense and a product of his manic and deluded mental state at the time. How could the fact that the appellant made the reported statements to the police, without more, demonstrate that he has an “ideology of security concern”, whatever that may mean, in the “current global context”, whatever that was, if what the appellant told the police was manifestly nonsense and the product of his manic state and hallucinations?

97    Even putting those imponderables to one side, there are also some demonstrable flaws and deficiencies in the Minister’s reasoning and factual findings in relation to this topic. Those flaws and deficiencies are detailed later in these reasons. It suffices to note at this stage that the material before the Minister about the statements made to the police in the context of the security assessment provided no basis for any finding that the appellant had any actual links or associations with Al Qaeda, Osama Bin Laden, ISIL, or any other extremist individuals, groups, or organisations. Nor was any such finding made.

Findings concerning the appellant’s conduct in immigration detention

98    As has already been discussed in some detail, the only material that was before the Minister in relation to the incidents which were said to have occurred while the appellant was in immigration detention were a series of incident reports. The appellant gave clear and unambiguous responses to the incident reports. While the Minister “noted” or said that he had “considered” the appellant’s claims concerning the incidents and the circumstances that gave rise to them, for the most part, the Minister failed to make any clear and unambiguous findings in relation to the incidents.

99    The Minister did state that he had “placed greater weight on the reports” and that he “considered that those reports are likely to provide accurate and reliable descriptions of [the appellant’s] behaviour while in immigration detention” (Reasons at [33]), but that did not resolve all of the issues that arose concerning the alleged incidents and the circumstances in which they occurred. It only dealt with the few occasions where the appellant’s account of the incidents directly contradicted what was in the reports. Placing greater weight on the reports did not address the appellant’s claim that all the incidents occurred, and were the product of, his manic and at times psychotic state, or his claim that his poor mental health was exacerbated by his detention. It did not address the appellant’s explanations concerning his verbal altercations with other detainees, including the fact that he did not touch or harm the other detainees and never intended to do so. It did not address the appellant’s claim, in relation to the statements that he allegedly made to one of the detention officer’s concerning Osama Bin Laden’s son and related matters, that he had no allegiance or connection with Osama Bin Laden or Al Qaeda and that the statements were simply the product of his manic state and hallucinations.

100    In any event, the Minister ultimately made only two findings of significance in relation to the appellant’s conduct during immigration detention. Both of them are dubious and supported by reasoning that is, at the very least, unpersuasive and unsatisfactory.

101    The first finding was that the appellant “made a threat to blow himself up in April 2015 during his contact with the GFU”: Reasons at [35]. The Minister appears to have rejected the appellant’s claim that his telephone call with the GFU in April 2015 related to his complaints about being in immigration detention for so long, apparently as a result of the January 2014 incident, and that the only reference that he made to blowing himself up during that telephone call was when he was seeking to explain the circumstances of the January 2014 incident.

102    The second finding made by the Minister was that he was satisfied that the appellant “did make claims that suggested that he was recruiting people to ISIL as alleged, even though he may no longer remember it himself due to his mental health condition”: Reasons at [36]. That finding was based entirely on one line in a security information report in which a detention officer recorded second- or third-hand hearsay accounts from unnamed detainees concerning the appellant’s “ongoing weird behaviour in the compound”. The single line is “[a]lso he allegedly recruiting [sic] fellow detainees to fight for ISIL in Syria”. The source of that assertion or allegation is entirely unclear.

103    The significant deficiencies inherent in those two findings are addressed in detail later in these reasons.

The Minister’s conclusions in relation to the character test

104    The Minister’s conclusions concerning the application of subs 501(6)(d)(v) of the Act to the appellant’s circumstances should be set out in full (Reasons at [44]-[46]):

I have accepted that [the appellant’s] previous conduct, as described by NSW Police and Serco staff in the documents mentioned above, has resulted from his bipolar affective disorder, and that his mental health and behaviour have improved since April 2015. I have also considered the submissions made by [the appellant’s] migration agent that his conduct does not amount to serious conduct and is not a genuine reflection of his character.

However, I have found that there remains a risk that [the appellant] would represent a danger to the Australian community by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, the Australian community. In coming to this conclusion, I considered that the pattern of behaviour he has exhibited, including his threats to blow himself up in January 2014 and April 2015, his repeated claims of association with extremist groups and the threats he made to other detainees and Serco staff while in detention, are of significant concern. I have found that, even if his claims about his associations with extremist groups are not true, the very fact that [the appellant] has repeatedly made those claims may demonstrate an ideology of security concern, which I take seriously particularly given the current global context. In this regard, I have also considered the non-disclosable information.

Although I consider there is a low likelihood of [the appellant] carrying out his threats, I consider it to be more than a minimal or remote chance. Further, I considered that the threats made by [the appellant] cannot be ignored in the current global context. In this respect, I considered that, in the event that any of [the appellant’s] threatened activity (including his threat to blow himself up) was carried out in Australia, this would likely result in significant harm to the Australian community.

105    As can be seen, the critical finding made by the Minister was that there was a risk that the appellant would, if permitted to remain in Australia, represent a danger to the Australian community because he was either liable to become involved in activities that are disruptive to the Australian community, or liable to become involved in violence threatening harm to the Australian community. It is not entirely clear exactly what “disruptive” activities or violence the Minister found that the appellant was liable to become involved in. Reference was made to “threats” and “threatened activity”, though the only specific threat which is referred to by the Minister is the appellant’s threat to “blow himself up”. That was plainly a reference to the January 2014 incident.

106    The main basis of the Minister’s critical finding was said to be the “pattern of behaviour” that the appellant was said to have exhibited, which the Minister considered to be of “significant concern”. That pattern of behaviour included the appellant’s “threats to blow himself up”, his supposed “repeated claims of association with extremist groups”, and the “threats he made to other detainees and Serco staff while in detention”. The Minister’s findings and reasoning in relation to those matters are analysed in detail later in these reasons. It suffices at this point to simply note that, upon close analysis, the Minister’s reasoning was significantly flawed and deficient in certain respects, and the critical findings were not reasonably open on the material considered as a whole.

The Minister’s exercise of the discretion in subs 501(1) of the Act

107    Having found that he was not satisfied that the appellant passed the character test because there was a risk that, if the appellant remained in Australia, he would “represent a danger to the Australian community … whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community”, the Minister considered whether he should in those circumstances exercise his discretion under subs 501(1) of the Act to refuse the appellant’s visa application. He found that he should.

108    The Minister’s decision to exercise that discretion hinged on five critical findings: first, that the appellant’s past conduct was “serious in nature”; second, that the appellant represented a “significant risk” to the Australian community; third, the Australian community would expect that the appellant would not be granted a protection visa; fourth, that it had been found that the appellant, if returned to Syria, would face a well-founded fear of persecution; and fifth, the result of the refusal of the appellant’s visa application would be that he would be liable to removal to Syria as soon as reasonably practical despite the fact that his removal would breach Australia’s international non-refoulement obligations. The first three findings weighed in favour of refusing to grant a visa and the last two findings weighed against the grant of a visa.

109    It is necessary to briefly address the Minister’s reasons in relation to each of those findings.

Seriousness of past conduct

110    The basis of the Minister’s finding that the appellant’s past conduct was “serious in nature” is difficult to comprehend. It is supported by virtually no probative or logical reasoning.

111    The Minister referred, on the one hand, to the factual findings he had made in relation to the threats the appellant had made to blow himself up, the claims that the appellant had made regarding his “associations and past activities” which were said to be of “serious concern”, the threats the appellant made to fellow detainees and detention centre staff, and the claim that the appellant was recruiting fellow detainees to fight for ISIL: Reasons at [53]. The material that was before the Minister, and the findings that were made by the Minister in relation to those matters, have been addressed at length earlier in these reasons.

112    On the other hand, the Minister referred to his acceptance that the appellant’s conduct resulted from his bipolar disorder and that there was accordingly doubt about the “credibility” of his claims concerning his alleged association with particular extremist groups: Reasons at [54]. In other words, the Minister accepted that, despite what the appellant had been reported to have said, he may not in fact have been associated with any extremist groups. It should be reiterated that, aside from the documents that recorded the appellant’s statements, there was nothing whatsoever before the Minister to suggest that the appellant was in fact associated with any extremist group.

113    The Minister then simply concluded that the appellant’s conduct was “serious in nature, having regard to the current global context and the non-disclosable information”: Reasons at [55]. The Minister did not explain what he meant by the “current global context” and did not shed any light on the general nature of the “non-disclosable information” or how or why it impacted on his conclusion. He did not, for example, indicate whether that information related to the “current global context” generally, or the appellant specifically, or something else.

114    More will be said about this conclusion later in these reasons. It suffices at this point to note that it is difficult to see how the Minister could reasonably have come to this conclusion had he given careful and proper consideration to the material that was before him. In particular, while a threat to blow oneself up might, considered in isolation, be thought to be serious, when the particular threat made by the appellant is considered in the context of all the surrounding facts and circumstances, it is difficult to see how it could reasonably be said to be “serious in nature”, whatever the “current global context” might be. It is equally difficult to see how any of the other incidents, properly considered in context, could be said to be serious.

Significant risk to the Australian community

115    The Minister said that, in making the finding that the appellant represented a significant risk to the Australian community, he had considered or had noted the information or submissions concerning the following matters: the fact that the incidents were the result of the appellant’s bipolar affective disorder; the fact that the appellant’s mental health and behaviour had improved since April 2015; the fact that the January 2014 incident was triggered by a period of extreme stress following the receipt of information by the appellant that his mother had died and as a result of him being detained; the fact that there had been no adverse incident since April 2015 and indeed the appellant’s behaviour since that time has been exemplary; and the fact that the appellant had never perpetrated any harm or violence against any person, or been subjected to any further discipline, or been charged with any offence. The Minister did not reject any of those matters. The Minister also said that he took into account the submission that the appellant had been “cleared from any investigations by ASIO and the police on the basis that [he] was not an adverse security risk”. The Minister did not reject that submission, or suggest that there was any reason or basis not to accept it.

116    Despite those considerations, the Minister concluded as follows (Reasons at [61]-[62]):

While submissions made by or on behalf of [the appellant] tend to suggest a low likelihood of [the appellant] carrying out his threats, the likelihood is not negligible. In this respect, I have also considered the non-disclosable information. Should [the appellant] carry out his violent threats in Australia, it would likely result in injury or loss of life to members of the Australian community.

Having particular regard to the extremely serious nature of the claims and threats made by [the appellant], I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community. I have placed significant weight on this consideration.

117    That conclusion will again be analysed in greater detail later. It suffices at this point to note that it is difficult to ascertain or comprehend the basis upon which the Minister concluded that the risk that the appellant would “carry out” his “violent threats” was “not negligible”. It is equally confounding that the finding appeared to be based on the Minister’s speculation about the harm which would result if those “violent threats” were carried out in Australia in circumstances where the only relevant or significant threat made by the appellant related to him blowing himself up in Syria, not in Australia.

Expectations of the Australian community

118    The Minister found that the Australian community would expect that the appellant would not be granted a protection visa.

119    It would appear that the main basis for that finding was that the appellant had engaged in “serious conduct”. It was said, in that regard, that “Australia has a low tolerance of any serious conduct by visa applicants” and that there should be “no expectation that foreign nationals who have engaged in serious conduct should be allowed to remain in Australia”: Reasons at [63].

120    The Minister said that he had considered the appellant’s submissions that he had no criminal history and that the nature of his conduct was not such that the Australian community would expect that he not be granted a visa, particularly given his mental health and personal circumstances. The Minister also said that he had regard to the appellant’s submissions that he had very compelling protection claims and that the refusal of his visa application gave rise to the “risk of indefinite detention”. The Minister found, however, that the Australian community would place greater weight on other considerations. He concluded (Reasons at [66]):

However, I considered that the Australian community would place greater weight on the need to protect the Australian community in light of the nature and seriousness of the claims and threats made by the [the appellant] and the current global context, and would expect that [the appellant] would not be granted a protection visa. I have placed significant weight on this consideration.

121    It can be seen, once again, that the Minister’s finding concerning community expectations turned largely on his findings about the “nature and seriousness of the claims and threats” made by the appellant. Those findings will be addressed later.

Well-founded fear and Australia’s international non-refoulement obligations

122    The Minister accepted that his Department had determined that, if returned to Syria, the appellant would “face a well-founded fear of persecution at the hands of the Assad-led regime or opposing rebel forces including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance”: Reasons at [67]. The effect of that determination was twofold. First, it would follow that, but for the Minister’s exercise of discretion pursuant to subs 501(1), the appellant would almost certainly have been entitled to the grant of a protection visa. Second, it would also follow that if Australia returned the appellant to Syria, it would be in breach of Australia’s international non-refoulement obligations. The Minister accepted, in that context, that there was “currently no known prospect of removal to any other country”: Reasons at [68].

123    Having found that the appellant was a person in respect of whom Australia had international non-refoulement obligations, the Minister went on to consider the consequences of a decision to refuse the appellant’s visa application under subs 501(1) of the Act. The Minister reasoned as follows in relation to those consequences (Reasons at [69]-[71]):

I am aware that the statutory consequence of a decision to refuse to grant [the appellant] a visa is that, as an unlawful non-citizen, [the appellant] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime, detention under section 189. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen.

I have noted that the obligation to remove [the appellant] would not apply if, following my refusal to grant him a Temporary Protection (subclass 785) visa, he is granted another visa. However, I am aware that as a result of a refusal decision under section 501(1), there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the appellant] will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless I determine, under section 48B of the Act, that section 48A of the Act does not apply to him). Application for a visa other than a protection visa will be subject to section 501E of the Act, which will apply to [the appellant] as a result of my refusal decision under section 501(1). This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994)), which he could only apply for in response to an invitation.

I am mindful that even if I refuse to grant [the appellant] a Temporary Protection (subclass 785) visa, I have a personal non-compellable power in section 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the appellant’s] favour, he will be liable to removal as soon as reasonably practicable in accordance with section 198 of the Act, including to Syria, having regard to section 197C.

124    The Minister’s reasoning and findings concerning the consequences of a decision to refuse the appellant’s visa application pursuant to subs 501(1) of the Act will be considered in more detail later. It suffices to note at this point that, having read those paragraphs of the Minister’s reasons, one could perhaps be excused for thinking that there was at least some prospect that the appellant might be able to secure some other visa; that he would not necessarily be refouled to Syria. The reality, however, was that the almost inevitable consequence of a decision to refuse the appellant a protection visa under subs 501(1) was that the appellant would remain in immigration detention until it was reasonably practicable to return him to Syria in breach of Australia’s international non-refoulement obligations. The question whether the Minister gave any genuine consideration to that consequence is considered later.

The Minister’s weighing of the considerations and conclusion

125    The Minister considered and weighed the findings he had made and concluded as follows (Reasons at [79]-[80]):

I found the above considerations in favour of refusal outweighed the countervailing considerations in [the appellant’s] case, including the potential harm for [the appellant] if he is returned to Syria, Australia’s international non-refoulement obligations, and his mental health concerns.

I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient for me not to refuse the visa. In the present circumstances, I found that the risk posed by [the appellant] to the Australian community is unacceptable.

126    The question whether that conclusion and the resulting exercise of discretion to refuse the appellant’s visa application was legally reasonable in all the circumstances is considered later in these reasons.

legal UNREASONABLENESS, IRRATIONALITY AND ILLOGICALITY

127    It is well settled that a discretionary power which is conferred by statute is subject to the implied condition or presumption that it be exercised reasonably. A decision maker who fails to exercise a discretionary power reasonably thereby fails to exercise the discretion within jurisdiction or, to use the now familiar language employed in such cases, commits a jurisdictional error. It is also well accepted that, in certain circumstances, a decision maker may commit a jurisdictional error if they make material findings of fact in the absence of probative evidence, or otherwise engage in illogical or irrational reasoning. That is particularly so where the faulty findings or reasoning relate to a jurisdictional fact, or are otherwise material to the ultimate conclusion or exercise of the relevant discretionary power.

128    It is necessary to give close consideration to the relevant principles in relation to legal unreasonableness, irrationality and illogicality. That is because the Court must be astute to avoid merits review under the guise of those principles.

Relevant principles – Legal unreasonableness

129    The relevant principles in relation to legal unreasonableness have been given detailed consideration and analysis in many cases in recent times: see, in particular, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28; Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7; Singh v Minister for Home Affairs [2020] FCAFC 7; BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54.

130    It is unnecessary to add significantly to what has already been written on the topic. It is sufficient to provide a brief summary of the general principles that emerge from those cases. The general principles are now so well accepted in the authorities that it is unnecessary to provide specific case citations. Following are the main points.

131    First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.

132    Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.

133    Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified.

134    Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that, within the boundaries of power, there is an area of “decisional freedom” within which a decision maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power. It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable.

135    Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the provisions of the statute which confer the relevant power. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope, and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact-dependant and to require careful attention to the evidence.

136    Sixth, where reasons for the decision are available, the reasons are likely to provide the main focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the Court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.

137    Seventh, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations, or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. The expressions that have been utilised in past cases include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”: Muggeridge at [65]. It must be emphasised, however, that the task is not an a priori definitional or “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope, and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

138    Eighth, defective, illogical, or irrational reasoning or fact finding may support a finding that the ultimate decision or exercise of discretion was legally unreasonable, particularly where the illogicality relates to a critical matter upon which the decision or exercise of discretion turned. Muggeridge was such a case. That provides an appropriate segue to a consideration of the principles relating to the finding of jurisdictional error on the basis of illogicality or irrationality.

Relevant principles – Illogicality and irrationality

139    There is a degree of overlap between the principles of legal unreasonableness and the principles of illogicality and irrationality in administrative decision-making. That is because, as just noted, an exercise of discretion which is based on illogical or irrational reasoning or decision-making may be considered to be legally unreasonable. There is, however, another species of cases where illogical or irrational findings of fact may give rise to a finding that an administrative decision maker has failed to lawfully exercise their jurisdiction. That is where the illogical or irrational reasoning or finding relates to a jurisdictional fact: a necessary pre-condition to the exercise of power.

140    As Derrington J convincingly explained in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681, the principles relating to judicial review for jurisdictional error, including legal unreasonableness arising from illogical or irrational reasoning or fact finding, are separate and distinct from the principles relating to judicial review in respect of a “jurisdictional fact error”; that is, review of an administrative decision on the basis that the decision maker’s finding of the relevant jurisdictional fact was illogical, irrational, or not based on probative evidence. The significance of that distinction was doubted, to an extent, by the Full Court in BFH16 at [29]-[34], though it was ultimately unnecessary for the Full Court to decide that issue. Nor is it necessary or desirable for that issue to be addressed or determined in this case. It is not desirable because it was not an issue which was ventilated at first instance or addressed at all in the parties’ submissions on appeal. The matter was argued essentially on the basis that the Minister committed a jurisdictional error because, in making the findings or determinations that provided the basis for his decision, he acted “irrationally, illogically and unreasonably”.

141    That said, some of the impugned findings and reasoning of the Minister concerned a jurisdictional fact, albeit a fairly obscure and subjective one. In simple terms, that jurisdictional fact was that the Minister was not satisfied that the appellant passed the character test, specifically the criterion in subs 501(6)(d)(v) of the Act. Expressed in terms of the relevant statutory provisions (including the unfortunate double negative), the Minister’s discretion to refuse the appellant’s visa application under subs 501(1) only arose if the Minister was not satisfied that the appellant was not a person in respect of who it could be said that, in the event that he was allowed to remain in Australia, there is a risk that he would represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment in any other way.

142    As obscure as that jurisdictional fact may be, it is clear that if the Minister’s state of non-satisfaction was based on illogical or irrational reasoning or findings of fact, including findings not supported by logically probative evidence, he acted without jurisdiction in refusing to grant the visa to the appellant: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [147]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 at [38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [122].

143    That is not, however, the only basis upon which the Minister may be found to have erred in a jurisdictional sense in cancelling the appellant’s visa. If, having found that he was not satisfied that the appellant passed the character test, the Minister exercised his discretion to refuse to grant the visa on the basis of factual findings that were illogical or irrational, or not supported by probative evidence, that too would amount to a jurisdictional error: Muggeridge at [35] and [58]. Illogical or irrational findings made by a decision maker “on the way” to a final conclusion may establish jurisdictional error: SZMDS at [132]; see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]; Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [54].

144    It is critical to emphasise, however, that illogicality or irrationality in this context must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [124]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. If “probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [131].

145    It should equally be emphasised that, for an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: SZRKT at [148]. The “critical question” whether an administrative decision is irrational, illogical, and not based on findings or inferences of facts supported by logical grounds, “should not receive an affirmative answer that is lightly given”: SZMDS at [40]. A high degree of caution must be exercised before concluding that a finding is irrational or illogical in order to ensure that the Court does not embark impermissibly on “merits review”: SZMDS at [96]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [14]-[15].

146    It should finally be observed, in this context, that in considering whether an administrative decision maker’s decision or exercise of discretion was the product of, or was materially affected by, illogical or irrational reasoning or factual findings, the decision maker’s reasons should not be the subject of over-zealous scrutiny: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].

was the minister’s decision legally unreasonable?

147    The appellant’s grounds of review at first instance included that the Minister, in making the findings or determinations he did in relation to both the character test and the exercise of the discretion, acted “irrationally, illogically and unreasonably”. The primary judge rejected those grounds. The primary judge’s response to the specific contentions and arguments advanced by the appellant are addressed at various points below. His Honour concluded that “there was material before the Minister from which he could conclude, reasonably and logically, that the [appellant] did not pass the character test” and that the “process of reasoning adopted in reaching that conclusion was not shown to be relevantly illogical or unreasonable” (Judgment at [79]). His Honour also found that there was “a rational basis for the Minister to conclude that there was a low risk of [the] relevant conduct occurring and that, if the [appellant] were to carry out in Australia a threat of the kind he had made in the past, the consequences would or could be extremely serious”: Judgment at [100].

148    I respectfully disagree with those conclusions. In my view, the cumulative effect of the many flaws and deficiencies in the Minister’s reasoning and factual findings is such that it can be concluded that his decision was illogical or irrational. The flaws and deficiencies infect both the Minister’s finding that the appellant had not satisfied him that he, the appellant, passed the character test (specifically, the criterion in subs 501(6)(d)(v) of the character test) and the Minister’s exercise of his discretion under subs 501(1) of the Act.

149    Moreover, in my view, when the material that was before the Minister is carefully analysed, it can be concluded that the outcome of the decision was legally unreasonable because it was, amongst other things, plainly unjust and obviously disproportionate.

150    To explain why I have reached those conclusions concerning the Minister’s decision, it is necessary to return again to the Minister’s reasoning and findings concerning both the character test and the exercise of his discretion so as to expose the flaws in the Minister’s findings. I should perhaps emphasise at the outset that this is not a case where there is a single critical finding which may be said to be illogical, irrational, or unsupported by the evidence. Rather, the unreasonableness of the Minister’s conclusion and decision is essentially the product of the cumulative effect of numerous flaws and deficiencies in the Minister’s fact finding and reasoning. That said, as will be seen, there were also a number of manifest failures on the Minister’s behalf to properly consider and engage with some of the appellant’s claims and submissions which alone would support a finding of legal unreasonableness.

Flawed reasoning and findings concerning the character test

151    Many of the factual findings made by the Minister concerning the appellant’s failure to satisfy the character test are, upon close analysis, materially flawed and deficient. No reasonable decision maker, who gave genuine and rational consideration to the material, could have found or been satisfied, on the basis of the material, that because of the incidents that were said to have occurred four to five years before the decision was made, there was a “risk that [the appellant] would represent a danger to the Australian community by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, the Australian community”: Reasons at [45]. The findings made by the Minister which apparently led him to conclude that there was such a risk simply do not stand up to scrutiny.

Findings in relation to the 12 January 2014 incident

152    The 12 January 2014 incident was plainly the main incident and the main reason why the Minister was ultimately not satisfied by the appellant that he met the character test. While the Minister referred to generic “threats” or “threatened activity” by the appellant, it was only the appellant’s “threat to blow himself up” which was specifically referred to as supporting the finding that the appellant represented a danger to the Australian community: Reasons at [46]. The only other alleged threats made by the appellant were a few isolated verbal threats made to detention officers or inmates while the appellant was in immigration detention and suffering from the symptoms of his bipolar disorder. It is inconceivable that those isolated threats, given their very minor nature and the circumstances in which they were apparently made, could provide the basis for a finding that the appellant did not meet the character test, particularly given the appellant’s exemplary behaviour in immigration detention since April 2015.

153    There was no dispute that on 12 January 2014, the appellant told a police officer or officers that he “no longer wanted to live in this world” and that he wanted to “return to Syria” and blow himself up. What is significant, however, is the extraordinary circumstances in which that threat was made. Those circumstances included: the appellant was at the time suffering from bipolar disorder; the appellant had just learned, via telephone, that his mother had been killed by a bomb blast in Syria; that news, not surprisingly, caused the appellant considerable emotional anxiety and distress; that emotional distress, perhaps combined with his mental health condition, resulted in the appellant becoming more erratic; the police did not arrest or charge the appellant, but instead transported him to hospital for a mental health assessment; and the appellant was released from hospital later that night with no further action taken. The appellant did not at any point threaten to blow himself up in Australia, which is no doubt at least one of the reasons why the police did not arrest, charge, detain, or take any further action against the appellant, or otherwise consider him to pose any threat to the Australian community.

154    The Minister accepted, or at least did not reject, the material that was before him that clearly indicated that the threat made by the appellant on 12 January 2014 occurred in those extraordinary and extenuating circumstances. The issue, in those circumstances, is how the Minister could logically or rationally find that this incident could support a finding, five years after it had occurred, that there was any real or appreciable risk that the appellant would at some point in the future blow himself up in Australia and thus cause significant harm to the Australian community. That issue is addressed in more detail later. The short answer is that the material before the Minister could not logically or rationally support that finding.

Findings concerning statements made to the police on 4 February 2014

155    The Minister’s findings concerning the statements that the appellant made to the police on 4 February 2014 were, at best, fairly equivocal. He accepted that the material that was before him was not sufficient for him to conclude that the appellant “meant what he apparently said” (Reasons at [20]) and accepted that the “veracity of the claims” made by the appellant during the police interview “remains unclear”: Reasons at [21]. Despite being unable to find that anything that the appellant told the police had any basis in reality, and despite the paucity of material before him concerning the police interview and the resulting security assessment, the Minister nevertheless considered that the fact that the appellant “made those claims at all may demonstrate an ideology of security concern” (Reasons at [21]), whatever that may mean.

156    Even those equivocal findings are problematic.

157    The first problem is the identification of exactly what the appellant told the police. As noted earlier, the only material before the Minister on that topic was the police officer’s handwritten notes of the conversation. The problem is that those notes are virtually indecipherable; not in terms of their legibility, but in terms of deciphering exactly what the appellant was saying. It is almost impossible to ascertain whether the appellant’s statements conveyed information about what he had done, heard, or observed, or information about what he knew or believed others had done or said, or information about what he had been told by others.

158    To make matters worse, the Minister appears to have interpreted parts of the notes in a way that was not only adverse to the appellant, but was also not reasonably open on the material. In particular, the Minister interpreted the note as recording that the appellant met with a man representing Al Qaeda sometime between June 2013 and November 2013. Interestingly, the Minister does not refer to the fact that the notes recorded that the supposed meeting was in Jakarta. It is that fact which makes the suggestion that the appellant in fact had that meeting highly improbable, if not impossible. As noted earlier, it is fanciful to suggest that the appellant, having only arrived in Australia in late 2012 and having only been released from immigration detention on a limited bridging visa in January 2013, could somehow have left Australia for Indonesia during 2013 and then returned to Australia later that year, supposedly on the same visa. The Minister, of course, would have been in the perfect position to ascertain if the appellant had in fact left Australia during 2013. There is no indication that he attempted to ascertain whether that was the case.

159    There are also problems with the Minister’s finding that the appellant told the police that he received training to go back and fight in his country, including a six month period of training on Sumbawa Island. A fair reading of the police officer’s notes of his conversation with the appellant reveals that the statement the appellant made in relation to training related to the activities of the “[b]ig man from Australia Rahib” and that it was that man who received the training to go back and fight in “his”, that is Rahib’s, country. It is by no means clear that the appellant said that he received training in Sumbawa.

160    The second problem is that the Minister does not make any unequivocal finding at all in respect of the appellant’s clear and unambiguous claim that, at the time of his interview with the police, he was in a manic state and suffering from hallucinations and that what he told the police was made-up and untrue. The Minister “noted” the appellant’s claims in that regard but ultimately focused solely on the appellant’s claim that he told the police that what he had told them was a lie. Even the Minister’s finding in relation to that claim was equivocal. He simply found that the “information currently available is not sufficient for me to determine whether [the appellant] had in fact told the police that everything he had said at the interview on 4 February 2014 was a lie; nor is it sufficient for me to conclude that the appellant meant what he apparently said”: Reasons at [20].

161    That finding does not squarely address the appellant’s claim that what he told the police was a product of his mental illness and was untrue. What is even more extraordinary about the finding, however, is that even the most cursory and simple of further inquiries could have given the Minister sufficient material to in fact make an unequivocal finding about the truthfulness and reliability of what the appellant had said to the police. Yet the Minister apparently failed to make that inquiry.

162    The Minister must have been aware, from the police officer’s statement, that the police conducted the interview for the purposes of an intelligence assessment and that such an assessment was completed. That intelligence assessment would no doubt have addressed the question whether anything that the appellant had said was reliable and truthful. It may be inferred, given the timing of the police officer’s statement, that the statement was produced at the request of the Minister’s Department. Even if that not be the case, it is extraordinary that the Minister’s Department did not attempt to obtain, or in fact obtain, a copy of the intelligence assessment. That assessment would not only have addressed the appellant’s claim that the information he gave the police was nonsense, and that he told the police that it was nonsense; it would also in any event have plainly been relevant to assessing whether it could genuinely be said that there was a risk that, if permitted to remain in Australia, the appellant would represent a danger to the Australian community.

163    Those problems with the Minister’s reasoning and findings concerning this topic are exacerbated by the Minister’s failure to make a finding about another clear and unambiguous claim made by the appellant; that he did not have, and had never had, links to Al Qaeda, Osama Bin Laden, ISIL, or any other religious group or organisation operating in Australia, Syria, or any other country and that this had been accepted by ASIO, which had cleared him of being of any adverse interest.

164    Aside from statements the appellant made while he was in a manic state, there was no material before the Minister which was capable of demonstrating that the appellant in fact had any links to Al Qaeda, Osama Bin Laden, ISIL, or any other religious group or organisation. The Minister did not find that he did. He only found that the fact that he said what he said to the police “may” demonstrate an “ideology of security concern”: Reasons at [21]. Perhaps more significantly, the Minister did not make any findings about the appellant’s claim that he had been “cleared” by ASIO. The Minister noted the appellant’s claim in that regard, but said nothing more about it other than that he “also noted the non-disclosable information”: Reasons at [18]. That vague, if not entirely opaque, statement does not amount to a finding about the appellant’s claims that ASIO had cleared him of being of any security concern. Nor does the apparent existence of some “non-disclosable information” about something absolve the Minister of his obligation to address that claim.

165    The Minister’s complete side-stepping of the appellant’s claim concerning the ASIO clearance is all the more bizarre given that the existence of an ASIO assessment would effectively have provided a complete answer, one way or another, to the question whether there was any risk that, if permitted to remain in Australia, the appellant would represent a danger to the Australian community. The existence of an adverse assessment by ASIO would, on the one hand, have provided an insurmountable hurdle for the appellant. A clearance, on the other hand, would have made it difficult for the Minister to find that there was any risk that the appellant would represent a danger to the Australian community.

166    For all the foregoing reasons, the Minister’s vague and equivocal finding that the statements that the appellant made to the police “may demonstrate an ideology of security concern” was deeply and fundamentally flawed. So too was the reasoning which underpinned it. It was not supported by any logically probative evidence. The Minister also failed to genuinely address or make findings concerning clear and unambiguous claims that the appellant had made, both in relation to the statements he made to the police, and in relation to the underlying issue as to whether he had any links or associations with any persons or organisations which may have been of “security concern”. The finding is further undermined by the Minster’s entirely unexplained failure to obtain the police intelligence assessment that was produced as a result of that interview and his failure to address the appellant’s claim that he had been cleared by ASIO.

167    The primary judge held that the Minister’s “use” of what the appellant was reported to have said during the interview was not illogical (Judgment at [61]) and that “[n]o illogical reasoning has been shown in the Minister’s treatment of the [appellant’s] interviews with police”: Judgment at [66]. It follows from what I have just said that I respectfully do not agree.

168    The Minister’s finding that the statements that the appellant made to the police in February 2014 “may demonstrate an ideology of security concern” was apparently important to his conclusion that the appellant had not satisfied him that he (the appellant) passed the character test. The fact that the finding was flawed, illogical, and irrational substantially undermines the logicality of the Minister’s finding concerning the character test.

169    It should finally be noted, in relation to this aspect of the Minister’s decision, that the Minister’s failure to make any findings concerning the clear and unambiguous claims and representations made by the appellant in relation to the statements he made to the police is itself sufficient to demonstrate jurisdictional error on the part of the Minister. As was made clear most recently by the Full Court in Minister for Home Affairs v Omar (2019) 373 ALR 569; [2019] FCAFC 188 at [37], the Minister is obliged to engage in an “active intellectual process with significant and clearly expressed relevant representations” in the context of a decision to cancel or refuse a visa. Depending on the nature and content of the representations, the Minister may also be “required to make specific findings of fact” in relation to the matters raised in the representations: Omar at [39]. It is not sufficient for the Minister to merely “note” the representations, or state that they had been considered or taken into account: Omar at [43]; see also AEM20 v Minister for Home Affairs [2020] FCA 623 at [100]. The failure to consider, in a relevant legal sense, significant matters raised clearly by a person in the appellant’s position will amount to a “failure to conform with the Act” or a failure to “carry out the relevant statutory function according to law”: Omar at [45].

170    As has already been noted, the Minister “noted”, but failed to make any findings about, a number of significant matters raised by the appellant, including: that the information he gave to the police during the security assessment was false and was the product of his manic state at the time; that he did not have, and had never had, links to Al Qaeda, Osama Bin Laden, ISIL, or any other religious group or organisation operating in Australia, Syria, or any other country; and that he had been “cleared” by both the police and ASIO of being of any adverse interest. It is impossible to avoid the conclusion that the Minister failed to engage in an active intellectual process with those claims and therefore failed to consider them in a relevant legal sense. That manifest deficiency would alone be sufficient to demonstrate legal unreasonableness on the part of the Minister.

Findings concerning the appellant’s conduct in immigration detention

171    The Minister ultimately made only two unequivocal and material factual findings concerning the appellant’s conduct while in immigration detention. The first was that the appellant “made a threat to blow himself up in April 2015 during his contact with the GFU” (Reasons at [35]) and the second was that the appellant made claims “that suggested that he was recruiting people to ISIL”: Reasons at [36]. Neither of those findings withstand scrutiny.

172    As for the first finding, as discussed earlier, the appellant claimed that he made the telephone call in April 2015 to speak with the Global Feedback Unit about why he had been in detention for such a long time. He said that during that call, which was made utilising the services of an interpreter, he referred to the January 2014 incident. He did not make a new or independent threat to blow himself up. The Minister rejected the appellant’s explanation of the April 2015 telephone call simply on the basis that “the scope for the GFU to misunderstand [the appellant] was substantially limited” because he had the assistance of an interpreter: Reasons at [35]. That is, to say the very least, hardly persuasive reasoning. It is difficult to see how the mere fact that an interpreter was involved meant that there was limited scope for confusion.

173    The report of what the appellant said during the telephone call contained what was, at best, a third-hand account of the conversation. The Minister appeared to have given no genuine consideration to the scope for confusion or unreliability arising from that circumstance alone. Moreover, the content of the report and the timing of the call is entirely consistent with the appellant’s account of what he said during the call. The report recorded the appellant as having said that he had been in detention for “no reason” and that he had “had no trouble with Police”, which are fairly clear references to the January 2014 incident. The Minister appeared not to have given careful attention to what the report actually recorded when considering the appellant’s evidence concerning the phone call.

174    It should also be emphasised in this context that it is clear that the note recorded that the appellant said that he would blow himself up in Syria if he is sent back there. That is entirely consistent with the contemporaneous documentary record of what the appellant said during the January 2014 incident. The note of what the appellant said in April 2015 cannot reasonably or sensibly be interpreted as involving a threat by the appellant that he would blow himself up in Australia if a decision was made to send him back to Syria. As discussed later, that is an important distinction when one comes to assess whether the statement or statements made by the appellant concerning blowing himself up could reasonably or rationally give rise to any risk that the appellant would present a danger to the Australian community.

175    As for the second finding, the finding that the appellant made claims that he was “recruiting people to ISIL” (Reasons at [36]) was based on a single line in a report which contained a second or possibly third-hand account of an allegation from an unidentified source. That is, to say the very least, an extraordinarily flimsy basis upon which to find that the appellant had claimed to be recruiting fellow detainees to fight for ISIL.

176    Even putting that issue to one side, the Minister’s finding in relation to this incident effectively ignored the appellant’s claim, which was entirely consistent with the content of the report (when read in context and as a whole), that anything that he may have said to his fellow detainees concerning recruitment to fight for ISIL was said at a time that he was undergoing “an episode of severe mental health”. It also ignored the appellant’s claim to have had no involvement or association whatsoever with ISIL. The point is that, even if the appellant did say something to other detainees about fighting for ISIL, the statements amounted to nothing more than the errant ramblings of a mentally unwell man.

177    The final point to note concerning the Minster’s findings about the appellant’s conduct while in immigration detention concerns the Minister’s apparent acceptance that the appellant’s conduct while in immigration detention “has resulted from his mental health condition, which may have been exacerbated by being held in immigration detention”: Reasons at [39]. While the Minister may have accepted that fact, he appeared to have given it no weight, or virtually no weight, in arriving at any of his findings. What is even more curious is that immediately after accepting that the appellant’s conduct resulted from his mental health condition, the Minister stated: “[h]owever, I have also considered the non-disclosable information in this regard”: Reasons at [39]. Exactly what that means is entirely unclear. Indeed, without some further explanation, it is entirely meaningless. It is meaningless to say that you have “considered” undisclosed information if nothing is said about the impact or effect that the information has had on any reasoning or finding that has been made.

The Minister’s conclusions concerning the character test

178    The Minister’s finding that the appellant had not satisfied him that he (the appellant) passed the character test and that the appellant did not pass the character test “by virtue of” subs 501(6)(d)(v) of the Act appeared to hinge on the following five findings: first, the appellant had exhibited a “pattern of behaviour”; second, that pattern of behaviour included the appellant’s “threats to blow himself up in January 2014 and April 2015, his repeated claims of association with extremist groups, and the threats he made to other detainees and Serco staff while in detention”; third, even if the appellant’s claims about his association with extremist groups were not true, the fact that he made them at all “may demonstrate an ideology of security concern”; fourth, there was a low likelihood, which was “more than a minimal or remote chance”, that the appellant would carry out “his threats”; and fifth, that if the appellant did carry out his “threatened activity” that would “likely result in significant harm to the Australian community” (Reasons at [45]-[46]).

179    There are a number of significant and fundamental issues or problems with those findings.

180    First, the supposed “pattern of behaviour” occurred between four and five years prior to the Minister’s decision. It ceased by April 2015. There was no suggestion whatsoever that the appellant had engaged in any adverse or untoward behaviour since that time. Indeed, the material that was before the Minister suggested that the appellant’s behaviour in immigration detention since that time had been exemplary. The Minister appeared to have ignored or given no weight to that consideration.

181    Second, on the Minister’s own finding, the “pattern of behaviour” during 2015 and up to April 2015 was the result of the appellant’s “bipolar affective disorder” during that period. Accordingly, the threats and claims made by the appellant during that time had to be approached and assessed on the basis that they were, as the appellant had claimed, a product of his manic and hallucinatory mental state during that period. It would also follow that the appellant’s pattern of behaviour during that period was not truly reflective of his character. It would appear, however, that the Minister effectively ignored or gave no weight to that consideration in assessing the seriousness of the supposed pattern of behaviour.

182    Third, the Minister also found that the appellant’s mental health had improved since April 2015. That was plainly why the appellant had not been involved in any adverse conduct since April 2015. The risk that there would be any repetition of the behaviour which had been the product of the appellant’s poor mental health in 2014 and early 2015 had to be assessed or approached on that basis. Yet the Minister appeared to have again ignored that consideration in assessing the risk.

183    Fourth, as for the appellant’s “threats to blow himself up”, as discussed at length earlier, the Minister accepted, or at least did not reject, the appellant’s version of events concerning the January 2014 incident. The threat was made in circumstances where the appellant was distressed at having heard the news that his mother had been blown up by a bomb in Syria. That prompted the appellant’s threat that he would return to Syria and blow himself up. The appellant was also in a manic state as a result of his bipolar disorder at the time. The extraordinary circumstances in which the threat was made, including the appellant’s distressed and manic mental state at the time, suggested that it was highly unlikely that the appellant ever intended to carry out his threat, or, more significantly, that there was any real or material prospect or risk that he would in fact carry it out.

184    Fifth, the fact that there was no real or material risk that the appellant’s threat to “blow himself up” in January 2014 was supported by the fact that the police did not take any action against the appellant in relation to that threat, other than to have his mental health assessed at hospital. The police conducted an intelligence assessment of the appellant, yet the Minister appears to have made no attempt to ascertain what that assessment was. The appellant claimed that the police cleared him of being of any adverse interest. There was nothing before the Minister to suggest otherwise. The same can be said in respect of the appellant’s claim that ASIO had assessed him and cleared him of being of any adverse interest. There was nothing before the Minister to suggest otherwise and the Minister did not reject the appellant’s claim in that regard.

185    Sixth, in any event, there was no suggestion whatsoever that the appellant ever threatened to blow himself up in Australia. His threat was to return to Syria to blow himself up. That would, on any view, not represent any danger to the Australian community.

186    Seventh, the Minister’s finding that the appellant made a separate and independent threat to blow himself up in April 2015 was flawed for the reasons given earlier. The appellant’s claim that he was only recounting the details of the 2014 incident in his telephone call in April 2015 in the context of his complaints about being held in immigration detention was credible, plausible, and not inconsistent with the documentary record. The Minister’s reasoning based on the fact that the appellant had the assistance of an interpreter was, at best, flimsy. In any event, the separate threat made by the appellant in April 2015, if there was one, was the same as the one made in January 2014; that he would return to Syria and blow himself up. Even if the appellant meant what he said, which given the circumstances was highly unlikely, that presented no risk or danger to the Australian community.

187    Eighth, the Minister’s suggestion that the appellant had made “repeated claims of association with extremist groups” was, on any view, an exaggeration which was unsupported by the evidence. In fact, the material before the Minister suggested no more than that the appellant had referred to his association with extremist groups on two, or possibly three, occasions between February 2014 and April 2015. The first occasion was when he was interviewed by the police on 4 February 2014 for the purposes of an intelligence assessment. As discussed in detail earlier, the appellant claimed that he was in a manic state during that interview, that he told the police stories that were untrue, and that he told the police that what he had told them was untrue. An intelligence report was prepared by the police, but inexplicably was not obtained by the Minister. The second occasion was when the appellant told a detention officer on 7 February 2014 that he knew Osama Bin Laden’s son. The appellant claimed that he was manic and hallucinating at the time and that his statements were not true, a claim the Minister appeared to accept, or at least did not reject. There was also a fleeting reference in another report to a second- or third-hand hearsay report that the appellant had attempted to recruit other detainees to fight for ISIL in Syria. As discussed earlier, there were substantial issues concerning the reliability of that report.

188    Ninth, even putting the Minister’s exaggerated account of those claims to one side, the Minister appeared to have accepted the likelihood, if not certainty, that the claims were untrue. That is perhaps not surprising given that the Minister accepted that the claims were made while the appellant was affected by his bipolar disorder. The appellant also stated that they were untrue and that he in fact had no association with extremist groups. There was no material before the Minister to suggest otherwise and the Minister did not engage at all with the appellant’s claims that both the police and ASIO had cleared him of being of any adverse interest.

189    Tenth, the Minister’s equivocal suggestion that even if the claims were not true they nonetheless “may demonstrate an ideology of security concern” borders on the absurd, particularly given the Minister’s acceptance that the claims were a product of the appellant’s bipolar disorder. Exactly why the untrue rants of a man suffering bipolar disorder “may demonstrate an ideology of security concern” was left largely unexplained. The Minister’s finding in this regard also ignored the fact that the appellant claimed that he had been cleared of being a security concern by the police and ASIO, and there was no material before the Minister to suggest otherwise. The Minister must have been aware that the police had prepared an intelligence report, but he appeared not to have bothered to get it. The same can be said concerning ASIO. As noted earlier, the Minister’s failure to engage at all with the appellant’s claims and representations in relation to these matters would alone be sufficient to demonstrate legal unreasonableness.

190    Eleventh, it is difficult, if not impossible, to see how the material that was before the Minister concerning “threats [the appellant] made to other detainees and Serco staff while in detention” provided any support for the Minister’s critical finding that there was a risk that the appellant would represent a danger to the Australian community. The material suggested that the few incidents involving any such threats were isolated and minor incidents, that they were the product of the appellant’s poor mental health (which was exacerbated by his detention), that they resulted in no injury or harm of any sort, and that no action was taken against the appellant by the detention authorities, which no doubt reflected their view that they were not serious incidents. The Minister accepted that those incidents were the result of the appellant’s bipolar disorder.

191    Twelfth, the Minister’s finding that there was a “low likelihood of [the appellant] carrying out his threats” which was “more than a minimal or remote chance” was unsupported by any logical or probative reasoning. As has already been noted, the appellant’s “threats”, such as they were, were made between four and five years before the Minister made his decision and were accepted to be the product of the appellant’s poor mental health at the time, which had since improved. The specific threat made by the appellant to “blow himself up” if returned to Syria in January 2014 was made in extraordinary circumstances which were unlikely to be repeated. The few threats made against fellow detainees were very minor, if not trivial, incidents which were not productive of any harm or even risk of harm. Plainly the managers of the detention centre did not take them seriously as no action was taken in relation to them. Nothing had occurred since April 2015 which suggested that there was any risk that the appellant would carry out any of the threats that he had made while in a manic state. Indeed, the material that was before the Minister in respect of the appellant’s conduct since April 2015 suggested quite the opposite.

192    Thirteenth, there is a manifest gap or flaw in the logic of the Minister’s finding that “in the event that any of [the appellant’s] threatened activity (including his threat to blow himself up) was carried out in Australia, this would likely result in significant harm to the Australian community” (Reasons at [46]). While the Minister referred to the “threatened activity” as “including” the appellant’s threats to “blow himself up”, this finding could only relate to that specific “activity”. It could not seriously be suggested that the threats to the other detainees and detention centre staff, if carried out, would cause significant harm to the Australian community. As for the appellant’s threats to “blow himself up”, the gap or flaw in the Minister’s logic is that there was never any suggestion that the appellant had threatened to blow himself up in Australia. The threats related to him blowing himself up in Syria, or if he was returned to Syria. That “threatened activity” never involved anything being done in Australia. It was illogical, in those circumstances, to speculate about what would happen if it did.

193    There was, in all the circumstances, no reasonable or logical basis to find, on the basis of the material that was before the Minister, that in the event that the appellant was allowed to remain in Australia, there was anything more than an extremely remote or minimal risk that he would represent a danger to the Australian community. It should perhaps be noted, in this context, that while the appellant apparently conceded in oral argument before the primary judge that it might have been open to the Minister to find that the appellant posed a “low threat”, there is no suggestion that he conceded that he posed anything more than a remote or minimal risk. There was also no logical or rational basis to find, on the material, that the appellant was “liable to become involved in activities that are disruptive to, or in violence threatening harm to” the Australian community.

194    The primary judge found, in effect, that the Minister’s finding that there was a more than minimal or remote chance that the appellant would carry out his threat to blow himself up, and that that might occur in Australia, was not illogical or irrational. It follows from what I have said that I respectfully do not agree.

195    As for the fact that the appellant only ever threatened to blow himself up in Syria, the primary judge found that it “is perfectly logical to reason that there is a risk that a person who is willing to blow themselves up might carry out such an act in a place different from that which they had specifically identified in the threat”: Judgment at [47]. That may be so in some circumstances devoid of any context. But that logic does not apply when one considers the particularly extraordinary circumstances in which the appellant actually made his threat. I accordingly do not agree with the primary judge that the Minister’s finding in this regard was logical. I also do not agree with the primary judge’s finding that it is possible to read the relevant reports as suggesting that the appellant was threatening to blow himself up in Australia. Nor, as the primary judge acknowledged, is it apparent that the Minister read the reports in that way.

196    In my view, the Minister’s reasoning and findings that led him to conclude that the appellant did not pass the character test by virtue of subs 501(6)(d)(v) of the Act are so flawed that the Minister’s conclusion can be said to be illogical, irrational, and not based on probative evidence.

197    I am acutely conscious that it is impermissible to review the merits of an administrative decision under the guise of review grounds involving illogicality, irrationality, and unreasonableness. I am equally well aware that illogicality and irrationality, in this context, must be “extreme” and must amount to more than emphatic disagreement and that I cannot simply substitute the findings that I consider should have been made for those that were in fact made by the Minister. As I have sought to explain, the flaws and deficiencies in the Minister’s findings and reasons are extreme and go well beyond mere emphatic disagreement. I simply do not accept that any decision maker who gave real and genuine consideration to the material could rationally or logically reach the conclusion that, in all the circumstances, the appellant did not pass the character test.

Flawed reasoning and findings in relation to the exercise of the discretion

198    The Minister’s reasoning and findings that ultimately led him to exercise his discretion to refuse the appellant’s visa application were, for the most part, equally flawed and deficient. The critical findings that led the Minister to exercise his discretion were that: the appellant’s conduct, being the conduct that led the Minister to conclude that the appellant failed the character test, was “serious in nature” (Reasons at [55]); there was a likelihood that was “not negligible” that the appellant might “carry out his violent threats in Australia” which would likely result in “injury or loss of life to members of the Australian community” (Reasons at [61]); and the Australian community would expect that the appellant not to be granted a protection visa given the “need to protect the Australian community in light of the nature and seriousness of the claims and threats” made by the appellant: Reasons at [66].

199    None of those findings withstand scrutiny.

200    The Minister also purported to consider the effect of his decision to refuse the appellant’s protection visa application. Upon close consideration, however, it is impossible to accept that the Minister gave real and genuine consideration to that issue.

Finding that the appellant’s past conduct was “serious in nature”

201    For the reasons that have effectively already been given, I am unable to accept that the Minister’s finding that the appellant’s conduct between January 2014 and April 2015 was “serious in nature”, whatever that might mean, was a finding that was reasonably open on the material that was before him. At risk of repetition, the following points may be made in relation to that finding.

202    First, it is difficult, if not impossible, to accept that the 12 January 2014 incident was “serious in nature” given the extraordinary and extenuating circumstances in which it occurred. Plainly the police did not consider it to be serious as they took no action whatsoever in relation to it, other than to have the appellant’s mental health assessed and to conduct a security assessment. The mental health assessment plainly did not amount to much as the appellant was released from hospital that evening. As for the security assessment, the Minister apparently did not trouble himself to ascertain what that assessment was, or, if he did, he did not tell the appellant about it or refer to it in his reasons.

203    Second, exactly the same can be said concerning the statements that the appellant made to the police on 4 February 2014. Those statements were made in an interview conducted by the police for the purposes of producing a security assessment. An assessment was produced, but the Minister either did not get it, or did not have regard to it. The appellant claimed that he was in a manic state at the time of the interview and that nothing that he said during the interview had any basis in reality. There was nothing whatsoever before the Minister to suggest that it did. Plainly the police did not consider that anything said by the appellant in the interview was “serious in nature” because they took no further action of any sort as a result of those statements, other than producing an assessment that the Minister apparently did not trouble himself to obtain.

204    Third, it is impossible to accept that the isolated incidents which occurred while the appellant was in immigration detention could be said to be “serious in nature”. Plainly Serco, the company that operated immigration detention centres at the time, did not consider any of the incidents to be serious in nature as no action was taken against the appellant in relation to any of the incidents. Equally, the Minister and his Department plainly did not consider those incidents to be “serious in nature” at the time they occurred because they took no action whatsoever in relation to them. The Minister also accepted that the incidents were the product of the appellant’s bipolar disorder, which was exacerbated by his continuing detention.

205    Fourth, the Minister’s oblique and opaque reference to the “current global context” and the “non-disclosable information” does not provide any logical or probative basis for the finding. The Minister did not explain what the “current global context” was or how it related in any way to the characterisation of the appellant’s conduct. Equally, while the Minister, for obvious reasons, did not disclose the content of the non-disclosable information, nor did he even attempt to explain how that information had any bearing whatsoever on his findings concerning the characterisation of the appellant’s conduct. This issue is considered in more detail later in these reasons.

206    Fifth, the characterisation of the appellant’s past conduct was considered by the Minister to be relevant to the “protection of the Australian community”. In that context, even if it was in any way reasonably open to characterise the appellant’s conduct during the period 12 January 2014 to April 2015 as “serious in nature”, the Minister either ignored, or gave no weight to, the fact that the appellant had led a “peaceful existence” in the community in the 12 months preceding 12 January 2014 while he was on a bridging visa, and also ignored or gave no weight to the fact that since April 2015, the appellant had been involved in no further adverse incidents and had indeed been commended for his exemplary behaviour by the Australian Border Force.

Finding that the appellant represented a “significant risk” to the Australian community

207    For the reasons given earlier in the context of the character test findings, the Minister’s finding that the appellant posed any risk, let alone a “significant risk”, to the Australian community was not a finding that was logically or rationally open on the material. Again, at risk of repetition, the following points may be made.

208    First, the threat that was made by the appellant on 12 January 2014 was made in exceptional and extenuating circumstances that were unlikely to ever be repeated or replicated.

209    Second, the threat in any event involved the appellant returning to Syria to blow himself up. He never suggested that he would do that in Australia. The extraordinary circumstances in which the threat was made explained why the threat was specific to Syria. There was never any threat to the Australian community.

210    Third, it was not reasonably open to find that the appellant made a separate or independent threat to blow himself up in April 2015. Even if he did, that threat was again about something that he would do in Syria, not Australia.

211    Fourth, the threat was made over five years before the date that the Minister made his decision. Nothing had occurred since that time which suggested that the threat was likely to be repeated, let alone actually carried out. The appellant’s mental health and behaviour had improved since April 2015 and he had not been involved in adverse incidents of any kind since that time. Indeed, his conduct has been recognised as exemplary.

212    Fifth, the Minister did not reject the appellant’s claim that he had been cleared of being a security risk by both the police and ASIO. There was nothing to contradict those claims. There was certainly no evidence of any adverse security assessment by the police or ASIO.

213    Sixth, while the Minister’s finding or conclusion concerning the significant risk of harm referred only to the appellant’s “threats” or “violent threats”, aside from the appellant’s threat that he wanted to return to Syria to blow himself up, the only other threats made by the appellant were isolated and minor threats made to fellow detainees and a detention officer in early to mid-2014. The Minister did not reject the appellant’s version of events concerning those incidents. They were incidents that occurred while the appellant was suffering adverse mental health issues exacerbated by his detention and must be taken to have been fairly trivial given that no action whatsoever was taken against the appellant arising from them. They also occurred almost five years before the Minister’s decision and in circumstances where the appellant had subsequently been commended for his exemplary behaviour while in immigration detention. The suggestion that those threats could support a finding of any ongoing risk to the Australian community borders on the absurd.

214    Seventh, nothing that the appellant was reported as having told the police during the interview on 4 February 2014 could be construed as a threat or violent threat. In any event, for the reasons already given, the appellant claimed that he was in a manic state during that interview and that nothing he said during it had any basis in reality. There was nothing whatsoever to suggest that anything he said during the interviews did have any basis in reality.

215    Eighth, the Minister said that he had considered, had regard to, or noted the following information, claims, or submissions that had been advanced by the appellant: that he was suffering from a bipolar affective disorder during the period when all the adverse incidents occurred; that his bipolar disorder was the primary reason for his conduct during that period; that the statements made by him during that period cannot be taken as being genuinely held or indicative of his actual character; that his health had improved since April 2015 and that his conduct since that time has been exemplary; that there was no record of any incident of significance involving the appellant since April 2015; that his mental health concerns during 2014 and up to April 2015 had been “triggered by a period of extreme stress following the receipt of information that his mother had died and by being re-detained in a high security detention facility”; that he had never perpetrated any harm or violence against any person, nor been subjected to any further disciplinary action since April 2015; that he had never been charged with any offences; and that he had been cleared by both ASIO and the police on the basis that he was not an adverse security risk. The Minister did not reject or refuse to accept any of that information, or any of those claims or submissions. In light of his conclusions, however, it is impossible to see how he could possibly have given any real or genuine consideration to any of those matters.

216    In light of all those matters, I cannot accept that the Minister’s findings that there was a likelihood that was “not negligible” that the appellant would carry out “his violent threats in Australia” and that the appellant thereby represented a significant risk to the Australian community were findings that were reasonably or logically open on the material.

Findings in relation to the expectations of the Australian community

217    It is unnecessary to say much in relation to the Minister’s findings concerning the expectations of the Australian community. That is because those findings depended entirely on the Minister’s findings that the appellant had engaged in “serious conduct” and that there was a need to protect the Australian community from the appellant’s threats. For the reasons already given, the Minister’s findings concerning the seriousness of the appellant’s past conduct and the risk that the appellant would carry out the threats he made in the past were irrational, illogical, and not supported by probative material. It follows that the Minister’s findings concerning the expectations of the Australian community are equally illogical and irrational.

218    It should, however, be noted that, in considering the expectations of the Australian community, the Minister claimed that the refusal of his protection visa application would be contrary to the Australian community’s expectations given the appellant’s “very compelling protection claims” and the risk of indefinite detention should his visa application be refused. It was submitted, in that regard, that the Australian community would give more weight to those considerations than to the appellant’s past conduct. The Minister concluded otherwise, finding that the Australian community would give greater weight to the “need to protect the Australian community in light of the nature and seriousness of the claims and threats made by [the appellant] and the current global context”. The basis upon which the Minister made that finding is unclear and unexplained. It is difficult to see why the Minister would have any more insight into the expectations of the Australian community than anyone else.

219    That provides a convenient segue to the Minister’s consideration of the effect that his decision to refuse the appellant’s visa application would have.

Findings in relation to non-refoulement and the effect of the decision on the appellant

220    In Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225, Allsop CJ (with whom Markovic and Steward JJ agreed) said this (at [3]):

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; 329 ALR 491; [2016] FCAFC 11 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(Emphasis added.)

221    Did the Minister confront and give consideration to the “human consequences” of his decision to refuse the appellant’s visa application on the basis that he was not satisfied that the appellant passed the character test? In my view, he plainly did not.

222    The Minister dealt with the consequences of a decision to refuse the appellant’s visa application in the exercise of his discretion under subs 501(1) of the Act under the subheading “International non-refoulement obligations”. The relevant paragraphs of that part of the Minister’s reasons were extracted earlier in these reasons. The following points may be noted concerning the Minister’s reasoning and findings on that topic.

223    First, the Minister noted that his Department had accepted that the appellant had a well-founded fear of persecution in Syria “at the hands of the Assad-led regime or opposing rebel forces including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance”: Reasons at [67]. This amounted to an acceptance that if the appellant was returned to Syria, there was a real risk that he might, amongst other things, be killed, imprisoned or tortured. The Minister elsewhere described the appellant’s protection claims as “very compelling”.

224    Second, the Minister also accepted that because Australia owed the appellant protection obligations on account of his well-founded fear of persecution, Australia would breach its international non-refoulement obligations if the appellant was returned to Syria. Though the Minister did not explain exactly what those international non-refoulement obligations were, they are principally derived from a number of international conventions to which Australia is a party: the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), ratified by Australia on 8 August 1989; the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), ratified by Australia on 17 December 1990; and the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), ratified by Australia on 13 August 1980. One would have thought that the breach of such obligations was not something that a reasonable Minister of State would take lightly.

225    Third, the Minister noted that the effect of s 197C and s 198 of the Act was that the effect of his refusal of the appellant’s visa application would be that he would be liable to be removed from Australia to Syria, irrespective of Australia’s international non-refoulement obligations, there being no prospect of removal to any other country. It might also be noted in this context, though the Minister did not advert to it, that the obligation to remove the appellant to Syria existed irrespective of the Minister’s acceptance that there was a real risk that, if returned to Syria, the appellant would be killed, imprisoned, or tortured.

226    Fourth, the Minister noted that until it was “reasonably practicable” to remove the appellant to Syria, he would remain in immigration detention by reason of s 189 of the Act.

227    Fifth, the Minister referred to the possibility that the appellant might be granted some other visa, in which case the obligation to remove him would not apply.

228    In BAL19 v Minister for Home Affairs [2019] FCA 2189, Rares J (at [43]) likened almost identical reasoning given by the Minister to a visa applicant in almost identical circumstances to the explanation of the “catch” in Joseph Heller’s classic novel Catch 22. But for the fact that the consequences of the Minister’s decision was a matter which was deadly serious, not humorous and satirical like Catch 22, I would agree that this was an apt description of the Minister’s speculation about the possible grant of some other visa to the appellant. It is absurd. It is absurd because, as Rares J explained in BAL19 at [45]-[48], in reality the Minister’s finding that the appellant did not pass the character test meant that it was effectively inconceivable that the appellant could, or would, be granted some other visa at any point in the near future, at least unless, and until, the appellant’s circumstances significantly changed such that he could no longer be considered by the Minister to be a risk to the safety of the Australian community. In those circumstances, the Minister’s speculation about the grant of another visa was, to continue the literary theme (and noting also that pro-bono counsel for the appellant was Mr S Beckett), positively Kafkaesque. The reality was that the effect of the Minister’s decision was that the appellant would be held in immigration detention until it was reasonably practicable to return him to the country where there was a real risk that he would be tortured or killed.

229    In BAL19, Rares J concluded (at [49]-[54]) that the Minister’s reasons, which explained the effect of his decision to refuse a visa in terms of Australia’s international non-refoulement obligations in almost identical terms to the Minister’s reasons in this matter, gave rise to a jurisdictional error. That was because the reasoning “exposed the lack of any active intellectual engagement with each of the legal and the practical consequences of the refusal to grant the protection visa when the Minister expressed his animadversions … about the possibility of the grant of a bridging, or some other substantive, visa” (at [49]). His Honour also found (at [54]) that the Minister had acted “unreasonably … and did not address the correct question, namely what would happen to the applicant (i.e. the legal or practical consequence) if the visa were not granted”.

230    The same can be said concerning the Minister’s consideration of the effect of his refusal to grant a protection visa to the appellant in this case. I am not persuaded that Rares J was wrong to so conclude, let alone plainly wrong. That is all the more so given that Katzmann J recently arrived at the same conclusions in relevantly indistinguishable circumstances: AEM20 at [108]-[117]. There is, in those circumstances, no sound reason why I should not apply the same reasoning to the relevantly identical circumstances of this case.

231    I should emphasise that I am not suggesting that the Minister’s consideration of the operation of ss 189, 197C, and 198 of the Act, or his discussion of the possibility of the appellant being granted another visa, was wrong or that the Minister misunderstood the operation of those sections: cf. AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27 at [16]-[22]. Nor do I think that Rares J was suggesting as much in BAL19. Rather, the point is that by speculating about the grant of another visa to the appellant, the Minister failed to give real and genuine consideration to the fact that the almost inevitable consequence of his decision to refuse the appellant’s visa application on the basis that he did not satisfy the character test was that the appellant would be refouled to Syria, in breach of Australia’s international non-refoulement obligations. That was the almost inevitable result because, given the Minister’s findings concerning the appellant’s failure to satisfy the character test, there was no reasonable or rational basis to consider that the appellant might be granted some other visa.

232    The fact that the Minister failed to give real and genuine consideration to the almost inevitable result of his exercise of discretion in this case is particularly significant when it comes to consider whether the outcome of the Minister’s exercise of discretion was legally unreasonable. That issue is considered later in these reasons.

233    It should finally be noted in this context that in BAL19, Rares J quashed the Minister’s decision to refuse to grant a protection visa to the applicant on the basis that subs 36(1C) of the Act, which is a specific criterion applicable only to an applicant for a protection visa, precluded the Minister using subs 501(1) of the Act or its analogues as a basis to refuse to grant a protection visa: BAL19 at [88]. The effect of that finding in BAL19 is that the Minister, in this case, was not entitled to refuse to grant the appellant a protection visa on the basis of subs 501(1) of the Act. The Minister has filed an appeal in BAL19.

234    The appellant did not argue, either before the primary judge or on appeal, that it was not open to the Minister to employ subs 501(1) of the Act to refuse his application for a protection visa. That was no doubt because BAL19 was not decided until after the hearing of the appeal. Given the findings I have made concerning the reasonableness of the Minister’s decision in this matter, it is unnecessary for me to consider the correctness of this aspect of Rares J’s judgment in BAL19. Nor would that be desirable in circumstances where it was not the subject of any argument. It should be noted, however, that in BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562, Colvin J gave detailed consideration to this aspect of BAL19 and concluded (at [129]) that he was not satisfied that “the fundamental foundation” for Rares J’s findings was plainly wrong: see also AEM20 at [139].

The Minister’s conclusions concerning the exercise of discretion

235    The Minister’s conclusion in relation to the exercise of the discretion involved balancing the considerations which weighed in favour of the refusal of the visa against the “countervailing considerations”, which were said to include “the potential harm for [the appellant] if he is returned to Syria, Australia’s international non-refoulement obligations, and his mental health concerns”: Reasons at [79]. As has already been discussed, the considerations which were said to weigh in favour of refusal were the serious nature of the appellant’s past conduct, the significant risk to the Australian community, and the expectations of the Australian community.

236    For the reasons already given, the reasoning and factual findings which informed each of the considerations which the Minister found to weigh in favour of refusal were unreasonable, irrational, and illogical. The critical findings made by the Minister in relation to the seriousness of the appellant’s past conduct, the risk of harm to the Australian community, and the expectations of the Australian community were, when closely analysed, not reasonably or logically open on the material that was before the Minister. Equally, as just discussed, the Minister’s reasoning concerning the effect that his decision would have, including the breach of Australia’s international non-refoulement obligations, was flawed and unreasonable.

237    It follows inevitably that the Minister’s conclusion concerning the exercise of his discretion was legally unreasonable.

238    At risk of repetition, I should again emphasise that this is not an exercise of merits review. I am not simply replacing the Minister’s conclusion with the conclusion that I consider should have been arrived at. The finding that the Minister’s conclusion in relation to the exercise of the discretion under subs 501(1) of the Act was legally unreasonable is not one which has been lightly arrived at.

The outcome was unreasonable, disproportionate, and plainly unjust

239    As has been made abundantly clear in the authorities, an administrative decision can be found to be legally unreasonable even if no error can be detected in the decision-making process or the reasons of the decision maker. That is so where the outcome of the decision can clearly be seen to be outside the area of “decisional freedom” or the range of possible lawful outcomes. That is not a conclusion that can be easily or lightly reached. The test is stringent. Where the Parliament has entrusted the exercise of a statutory discretion on a Minister of State, it is not a matter for the Court to simply substitute its views and conclusion for the views and conclusion of the Minister. The cases where the outcome of an exercise of discretion by a Minister are found to be legally unreasonable may therefore be expected to be rare and exceptional.

240    This, unfortunately, is such a case.

241    On a superficial level, the Minister gave a justification for the decision to refuse the appellant’s visa application which might be thought to be evident and intelligible. It may readily be accepted that if there was actually a real or appreciable risk, even a relatively low one, that the appellant might, if granted a visa, represent a danger to the Australian community by committing some violent act, such as blowing himself up, that might provide a powerful reason for refusing the visa application.

242    The difficulty here, however, is that when careful and considered attention is given to the material that was before the Minister, there was no reasonable or rational basis for finding that there was anything more than a trivial, remote, or even infinitesimal risk. That difficulty is exacerbated by the fact that the almost inevitable result of the Minister’s decision was that the appellant was to be sent back to a country where there was a real risk that he might, amongst other things, be killed, imprisoned, or tortured.

243    It is unnecessary to repeat what has already been said about the exceptional facts and circumstances of this case. It is true that the appellant made a threat to “blow himself up” in Syria. But that threat was made in extraordinary and extenuating circumstances that, on just about any view, are unlikely to be repeated or replicated. Those circumstances included that the appellant was suffering a mental illness and received distressing news about the death of his mother. It is also true that the appellant said some potentially disturbing things to the police shortly afterwards, though that again occurred in extenuating circumstances, in terms of the appellant’s mental state, and there is nothing to suggest that anything he said had any basis in reality. The appellant was also involved in some minor verbal incidents while in immigration detention, though it is accepted that those events were the product of his mental health issues which had been exacerbated by his return to high-security detention.

244    The appellant had never been charged with any offence, here or overseas, and was not subject to any disciplinary action while in immigration detention. The appellant claimed to have been cleared of being of any security concern or interest by both the police and ASIO and there is no evidence to suggest otherwise. Nor did the Minister find otherwise. The appellant had not been involved in any adverse incidents or engaged in any bad behaviour since April 2015, almost four years prior to the Minister’s decision. The appellant’s behaviour in immigration detention in the years immediately preceding the decision had been found to be exemplary.

245    Significantly, the appellant had been accepted to be a genuine refugee. He had a well-founded fear of persecution in Syria if returned there. Yet that is where he was to be sent, in breach of Australia’s international non-refoulement obligations, if his visa was to be cancelled. There was effectively no legal or practical alternative.

246    As was noted at the outset, the primary judge, in my view, correctly stated that there “must be a point at which a perceived risk is so unlikely, or the nature of the risk is so trivial, that a decision to refuse a visa under s 501(1), on the basis that the Minister was not satisfied that a visa applicant passed the character test by reason of s 501(6)(d)(v), would be legally unreasonable in circumstances where the consequences of the decision are of the kind they are here”: Judgment at [99]. The primary judge did not think that this was such a case. White and Bromwich JJ agree.

247    I respectfully disagree. This is just such a case. I am firmly of the view that when careful and considered attention is given to the material that was before the Minister, and to all of the facts and circumstances of the case, the inescapable conclusion is that the Minister’s decision in this case was plainly unjust, obviously disproportionate, and irrational. The conduct engaged in by the appellant many years ago in exceptional and extenuating circumstances could not, on any reasonable view, justify a decision the effect of which would be to condemn him to be returned to a country where it is accepted he may be persecuted, tortured, or killed.

248    I should emphasise, yet again, that this is not a conclusion which is lightly reached. Nor is it a matter of mere emphatic disagreement or, worse still, merits review, or a substitution of my views and conclusions for those of the Minister, who is undoubtedly the legal repository of the relevant power. My conclusion is that, having given careful and anxious consideration to all the facts and circumstances of this case, the outcome of the Minister’s decision falls outside the range of possible lawful outcomes of the exercise of the relevant power.

The notice of contention and the non-disclosable information

249    The Minister contended that the appellant was unable to discharge his onus of demonstrating that the Minister’s decision was legally unreasonable because the Minister said that he relied on “non-disclosable information” in reaching his decision. The primary judge did not deal with the contention because he found that the appellant had not discharged his onus in any event.

250    The Minister filed a Notice of Contention in the following terms:

The appellant is unable to discharge his onus of demonstrating that, if the Minister’s decision appeared to be legally unreasonable on the matters disclosed in the Minister’s reasons, the ‘non-disclosable information’ on which the Minister relied could not supply the deficiency.

251    In his reasons, the Minister referred to the fact that in making his decision he had regard to “non-disclosable information” as defined in subs 5(1) of the Act. That information was said by the Minister to be relevant in considering both the application of the character test in relation to the appellant and in the exercise of the discretion under subs 501(1) of the Act. The Minister noted that, by reason of subs 501G(1)(e) of the Act, he was not required to give that information to the appellant as part of his reasons for the refusal decision.

252    Subsection 5(1) of the Act includes the following definition of “non-disclosable information”:

non-disclosable information means information or matter:

(a)    whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

(i)    prejudice the security, defence or international relations of Australia; or

          (ii)    involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

(b)    whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

(c)    whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.

253    It can be seen that the definition is extremely broad and can encompass many different types or categories of information. However, most of the categories of non-disclosable information hinge on the Minister’s opinion about the nature of the documents, not the objective qualities of the documents. It is entirely unclear exactly how or why the undisclosed information in this case fell within the definition.

254    Subsection 501G(1)(e) of the Act relevantly provides that if a decision is made under subs 501(1), the Minister must give the person a written notice that “sets out the reasons (other than non-disclosable information) for the decision”.

255    The appellant did not dispute or challenge the Minister’s claim concerning the existence of relevant non-disclosable information. The appellant made no attempt to require the Minister to disclose that information for the purposes of his judicial review application. That is perhaps not surprising given the very broad definition of “non-disclosable information” and the almost impossible task that the appellant would have faced in proving that the Minister did not have a particular opinion about the documents. In any event, it follows that, by reason of subs 501G(1)(e), the Minister’s reasons were not required to “set out” any information which the Minister said fell within the definition of “non-disclosable information” in subs 501(1) of the Act.

256    It may readily be accepted that, in some cases at least, a decision maker’s reliance on information that cannot be put before the Court, either by reason of a claim of public interest immunity or by reason of some statutory provision like those that are relevant in this case, may impose a significant burden on an appellant who seeks to demonstrate that the decision was legally unreasonable: see, for example, Sagar v O’Sullivan (2011) 193 FCR 311; [2011] FCA 182; Plaintiff M46/2013 v Minister for Immigration and Border Protection (2014) 139 ALD 277; [2014] FCA 90. In some cases that hurdle may be effectively insurmountable.

257    This is not such a case. That is so for a number of reasons.

258    First, unlike in cases such as Sagar and Plaintiff M46/2013, there is absolutely no indication of the general nature of the non-disclosable information in this case. Both Sagar and Plaintiff M46/2013 involved adverse security assessments by the Director-General of Security. The general nature and effect of the information was accordingly clear and fairly obvious. That is not so here. As has already been noted, the definition of “non-disclosable information” in subs 5(1) of the Act is extremely broad and could cover an extremely wide range of information. There is no indication whatsoever of which paragraph of the definition the information in this case fell within, or what the source or general nature of the information was, or even what it related to. It may well have been favourable to the appellant.

259    Second, and relatedly, the Minister’s references to the non-disclosable information in his reasons were at best oblique and at worst positively opaque. It is virtually impossible to work out how, or why, or in what way, the information impacted on the Minister’s findings. Indeed, it is for the most part unclear whether the information had any effect at all on the Minister’s findings.

260    There are four brief references to the non-disclosable information in the Minister’s reasons.

261    At paragraph 18 of the Reasons, the Minister noted the appellant’s claim that he had no links to Al Qaeda, Osama Bin Laden, ISIL, or any other religious group or organisation and his submission that this had been accepted by ASIO who had “cleared him of being of any adverse interest”. The Minister then simply noted that “[i]n this respect, I have also noted the non-disclosable information”. Without more, the Minister’s statement that he had “noted” some non-disclosable information is entirely meaningless. The reasons give no hint of the general nature or import of the information and do not even indicate whether the information caused the Minister to accept or reject the appellant’s claim or submission, let alone why that may be so. It is entirely possible that the information may have supported the appellant’s submission. Indeed, it is abundantly clear that the non-disclosable information was not an adverse security assessment by ASIO, as that itself would have been a reason for refusing the appellant’s visa application irrespective of the character test: see subs 36(1B) of the Act.

262    The second reference to the non-disclosable information is equally confounding. At paragraph 39 of the Reasons, the Minister referred to his acceptance that the appellant’s behaviour had improved since April 2015 and that his previous conduct had resulted from his mental health condition, which “may have been exacerbated by being held in immigration detention”. The Minister’s reasons then stated: “[h]owever, I have also considered the non-disclosable information in this regard”. While the Minister used the word “however” in this sentence, it is impossible to ascertain what, if any, bearing the information had on the finding recorded earlier in the paragraph. There is again no indication of the general nature or import of the information or how or in what way it was relevant to the relevant finding.

263    The same can be said about the third reference to the non-disclosable information in paragraph 45 of the Reasons. In that paragraph, the Minister referred to the statements that the appellant made to the police and found that even if the statements were not true, the fact that the appellant made them “may demonstrate an ideology of security concern”. The Minister then noted that he took that matter “seriously” particularly given the “current global context” and that “[i]n this regard, I have also considered the non-disclosable information”. The context in which that statement was made would suggest that the non-disclosable information had something to do with the “current global context”, whatever that was or may have been, but even that is unclear. While the Minister may have considered the information, there is no indication that it had any bearing whatsoever on any relevant finding.

264    The final reference to the non-disclosable information is at paragraph 61 of the Reasons. In that paragraph, the Minister set out his finding that the likelihood of the appellant carrying out “his threats” was “not negligible”. The Minister then noted that “[i]n this respect, I have also considered the non-disclosable information”. There is once again no indication of the general nature or import of that information, or what its relevance was, or whether it had any bearing at all on the relevant finding. Given the oblique and ambiguous reference to the information, it may have been favourable to the appellant; that is, the Minister may in effect have been saying that he made that finding irrespective of, or despite, the non-disclosable information.

265    In all the circumstances, I reject the Minister’s submission that the Minister’s reference to the non-disclosable information effectively prevented the appellant from discharging the onus of proving that the Minister’s decision was unreasonable. The references to that information in the Minister’s reasons are so obscure and ambiguous that it cannot be concluded that, whatever it was, it had any bearing whatsoever on the Minister’s reasoning, or findings, or his ultimate conclusions. That is not the same as saying that a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) should be drawn because the Minister chose not to refer to the non-disclosable information. I accept that no such inference can or should be drawn in the circumstances: cf. SS v Australian Crime Commission (2009) 224 FCR 439; [2009] FCA 580 at [94]. The more fundamental problem for the Minister is that there is nothing to suggest that the material supported the Minister’s findings and reasoning in any material way. The Minister cannot effectively shield his decisions from judicial review on the grounds of legal unreasonableness by making oblique or opaque references to non-disclosable information.

Conclusion

266    I have acknowledged that the concept of legal unreasonableness in the context of judicial review cannot be used as a backdoor way of reviewing the merits of an administrative decision, or as a way of substituting the Court’s views or opinions for those of the decision maker. I also acknowledge that a finding of legal unreasonableness on the part of a Minister of State must be regarded as an exceptional and somewhat extraordinary finding. Where, however, the outcome of the Minister’s refusal of a protection visa is as draconian and disproportionate as it was in this case, and where the reasoning and factual findings that supposedly support that outcome are as flawed, irrational, and unsupportable as they are here, the Court should not hesitate to declare the exercise of power to be unreasonable and beyond power.

267    I would, in all the circumstances, have quashed the Minister’s decision to refuse to grant the appellant a protection visa and ordered that the Minister determine the appellant’s application for such a visa according to law.

I certify that the preceding two hundred and fifty (250) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:

Dated:    28 May 2020

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

268    The appellant, who is now 32 years old, is a national of Syria who arrived in Australia by boat on 15 November 2012. After an initial period of detention, he was, on 16 January 2013, granted a temporary humanitarian stay visa with an associated bridging visa and commenced living in the community. On 3 February 2014, the appellant was again in immigration detention, having been detained by the respondent Minister under s 189(1) of the Migration Act 1958 (Cth) (Act), following an incident detailed below which took place after he was told about the violent death of his mother (as it turned out, apparently incorrectly). He has remained in detention since then.

269    On 8 July 2015, the appellant wrote to the first respondent, the Minister, seeking the exercise of discretion to be released back into the community, and explaining the events that had led to his return to immigration detention and other events detailed below. That request was unsuccessful.

270    On 27 June 2016, the appellant lodged an application for a temporary protection visa. On 4 February 2019, the grant of that visa was refused by the Minister. The Minister did so in the exercise of the discretionary power under s 501(1) of the Act, after determining that the appellant had not satisfied him that he passed the character test contained in s 501(6)(d)(v).

271    The appellant’s application for judicial review of the Minister’s decision was dismissed by a Judge of this Court on 17 June 2019: BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929. This is an appeal against that dismissal.

The visa refusal process

272    By a letter dated 7 August 2017, the Minister sent the appellant a notice of intention to consider refusal of his 27 June 2016 protection visa application (Notice, also referred to by the primary judge as the NOICR). The Notice informed the appellant that consideration would be given to refusing his protection visa application on character grounds under s 501(1) of the Act. The Notice also advised that, in considering whether he passed the character test, the decision-maker would have regard to a number of matters which were detailed in attachments to the Notice, and also certain non-disclosable information.

273    Section 501 relevantly provides:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

Character test

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

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;

274    The Notice, when read with its attachments, identified three aspects of the appellant’s conduct that, as the primary judge observed, ultimately formed the central basis for the Minister’s refusal to grant the protection visa:

(1)    On 12 January 2014, he received a telephone call from his brother in Syria, telling him that his mother had been killed by a bomb. He became distressed and got into an argument at the premises he was attending to obtain a knee massage about payment for services that had not yet been provided. Police were called, who referred him for emergency psychiatric assessment at a hospital. On the material that was before the Minister, he had stated that he wanted to die and that he wanted to go back to Syria and blow himself up.

(2)    On 4 and 6 February 2014, he was interviewed by police. During those interviews he made reference to meeting with a man representing Al Qaeda in the period from June to November 2013, to meeting with an Australian man at a Mosque, to a warehouse containing rocket-propelled grenades and guns, and to training he had received to go back and fight in Syria, including six months training on Sumbawa Island.

(3)    Between 2014 and 2015, while back in immigration detention, the appellant had been involved in a number of incidents:

(a)    a threat to pour a mixture of hot water and sugar on another detainee;

(b)    on 24 June 2014, threatening to kill another detainee after being assaulted by that detainee;

(c)    on 6 April 2015, telling a client services manager that he wanted to kill him because that person was always serious and because he had been hearing voices telling him that person was an infidel;

(d)    on 20 April 2015, contacting the Department’s Global Feedback Unit via an interpreter and stating that if he was sent back to Syria he would blow himself up; and

(e)    allegations that the appellant had been attempting to recruit detainees to fight for the Islamic State of Iraq and the Levant (referred to as ISIL) in Syria.

275    The Notice also informed the appellant that the decision-maker may consider other information which was “non-disclosable information” as defined in s 5(1) of the Act. That meant, the Notice continued, that when making the decision under s 501(1), the decision-maker may have regard to information which would not be provided to the appellant. While the Minister contended that the use of this non-disclosable information presented a significant hurdle to the appeal succeeding, it was not ultimately necessary to consider this argument for the purposes of this decision.

276    Under the heading “Enclosures”, the Notice stated (emphasis added):

The following documents are also enclosed. These documents constitute the disclosable information held by the Department which the decision-maker may rely on to decide whether you pass the character test, and, if you do not whether your application for a visa should be refused.

277    The numerous documents attached to the Notice included:

(1)    the appellant’s application for a protection visa lodged on 27 June 2016; and

(2)    the submission which the appellant had made to the Minister on 8 July 2015, seeking an exercise of discretion by the Minister to allow him to be released into the community and to remain in Australia, which included a letter from the appellant bearing the same date. That letter relevantly included the following sentence:

My use of English may not be perfect and definitely not fluently but I do not pose a risk to the Australia Community, as evidenced by my peaceful existence in Sydney for 12 months I spent in the Australian Community on a bringing visa.

It is convenient to refer to this sentence as the peaceful existence submission.

278    On 4 September 2017, the appellant, via his migration agents, provided detailed submissions in response to the Notice. In that response, the appellant commented in detail on the incidents summarised above at [274], submitting that his bipolar disorder, which manifested between January 2014 and April 2015, was the primary reason for any such conduct.

279    The appellant emphasised that he had never been charged with any offences arising from those alleged incidents. He relied upon having been cleared by the Australian Security and Intelligence Organisation (ASIO) and the police of being any adverse security risk, and noted that threats alleged to have been made to other immigration detainees were provoked and that he had never perpetrated any harm or violence, nor been disciplined. As there had not been a recurrence of his bipolar condition, he submitted that there was no risk that he would become involved in activities that were disruptive or violent to the Australian community.

280    The appellant also submitted that the Australian community would not expect him to be refused a visa, made detailed submissions about Australia’s non-refoulement obligations and relied upon credible country information about the situation in Syria.

281    The appellant’s response to the Notice did not contain any overt reference to either the peaceful existence submission, or to the 8 July 2015 letter containing that submission.

The Minister’s protection visa refusal decision

282    At the commencement of his reasons, the Minister recorded that, in relation to his consideration of the appellant’s satisfaction of the character test and his exercise of the discretion, he had had regard to non-disclosable information as defined in s 5(1) of the Act, and to the submissions made on the appellant’s behalf in response to the Notice,as well as other relevant information as outlined below”.

283    The Minister’s reasons (as reproduced below) indicate that he accepted that the appellant’s conduct from January 2014 to April 2015 was caused by his bipolar disorder, that this condition may have been exacerbated by his being held in immigration detention, and that he had improved since April 2015.

284    In relation to the incident on 12 January 2014, the Minister noted the appellant’s explanation and submissions concerning it. In particular, the Minister noted the appellant’s claim that he had been upset at the time having just been informed of his mother’s death, his claim that his threats had been directed to self-harm rather than harm to others, that his reaction was attributable to his bipolar disorder, and that, by reason of language difficulties, the New South Wales Police may have misunderstood what he was saying. The Minister also noted the appellant’s acknowledgement that “I must have said a lot of things that I cannot remember at that moment in time because of the news my mother had passed away”. The Minister then concluded (at [16]):

Having regard to NSW Police’s descriptions of the incident, as set out in the documents mentioned above, as well as [the appellant’s] explanations, I am satisfied that [the appellant] did make a threat to kill himself with a bomb on this occasion, although he may no longer remember this himself. I have made this finding despite having accepted that [the appellant] has no criminal history in any country, and having had regard to his United Arab Emirates Police Certificate, which contains a certification provided by Dubai Police that [the appellant] had no previous convictions as at 1 November 2016.

285    The Minister then considered a police report from when the appellant had been interviewed on 4 February 2014. The report stated that the appellant had claimed to have met a representative of Al-Qaeda, to have met a man at the Chester Hill Mosque with some association to a warehouse containing rocket-propelled grenades, and to have received training with a view to returning to Syria to fight. The Minister noted that the appellant denied having any of these associations and that the statement attributed to him had occurred at a time when he was manic. The Minister concluded (at [21]):

While the veracity of the claims made by [the appellant] during the police interview on 4 February 2014 remains unclear, I have found that the fact that he made those claims at all may demonstrate an ideology of security concern, which I take seriously particularly given the current global context.

286    The Minister accepted that the appellant had made the threats recorded by detention centre staff. These were recorded by the Minister as follows (at [22]):

    On 3 March 2015, [the appellant] stated to a Client Services Manager that if he saw a particular detainee, he would assault him and throw a mixture of hot water and sugar mix on his face.

    On 24 June 2014, following an assault from another detainee, [the appellant] threatened to kill the other detainee.

    On 6 April 2015, [the appellant] approached a Client Services Officer (CSO) and stated that he wanted to kill him. When asked why he wanted to kill the CSO, [the appellant] stated that ‘it’s because you are always serious’. In relation to this incident, a Security Information Report provided by Serco on another incident on 7 April 2015 also notes that ‘[t]he other day [the appellant] threatened to kill a Hotham Staff member because he was allegedly hearing voices telling him that he is an infidel’.

287    The Minister then considered an incident report which indicated that the appellant had contacted the Department’s Global Feedback Unit and had said that if he was sent back to Syria he would blow himself up. The Minister also referred (at [29]) to a report from a Detention Centre staff member that, in February 2014, the appellant had:

    stated that he had been employed, on a voluntary basis, by a company in Lakemba, transferring money from Australia to Syria to be used for ‘the war’;

    stated that he is friends with Osama Bin Laden’s son who has offered to send guns to him in Australia; and

    extolled the virtues and philosophy of Osama Bin Laden at length.

288    Next, the Minister considered a security information report recording allegations by fellow detainees that the appellant had, while in detention, been attempting to recruit detainees to fight for ISIL. Having considered the appellant’s explanation and submissions concerning these matters, the Minister said that he was satisfied that the appellant had engaged in the conduct, and had made the statements, which the various records attributed to him.

289    The Minister referred to the evidence provided by International Health and Medical Services, contracted by the Department to provide health care within the Australian detention network, which stated that the appellant’s irrational behaviour was “directly linked to his return to held detention” which was “not appropriate or [conducive] to [the appellant’s] major mental health condition”. The Minister then noted information indicating that the appellant had not been charged with any criminal offence, and did not have a criminal record. The Minister also accepted that the appellant’s mental health condition had improved since April 2015. The Minister concluded (at [39]):

Having regard to the above, I accept that [the appellant’s] behaviour has improved since April 2015, and that his previous conduct, as recorded in the documents provided by NSW Police and the reports provided by Serco staff as outlined above, has resulted from his mental health condition, which may have been exacerbated by being held in immigration detention. However, I have also considered the non-disclosable information in this regard.

290    On the question of whether the appellant had satisfied him that he passed the character test, the Minister concluded:

[44]    I have accepted that [the appellant’s] previous conduct, as described by NSW Police and Serco staff in the documents mentioned above, has resulted from his bipolar effective disorder, and that his mental health and behaviour have improved since April 2015. I have also considered the submissions made by [the appellant’s] migration agent that his conduct does not amount to serious conduct and is not a genuine reflection of his character.

[45]    However, I have found that there remains a risk that [the appellant] would represent a danger to the Australian community by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, the Australian community. In coming to this conclusion, I considered that the pattern of behaviour he has exhibited, including his threats to blow himself up in January 2014 and April 2015, his repeated claims of association with extremist groups and the threats he made to other detainees and Serco staff while in detention, are of significant concern. I have found that, even if his claims about his association with extremist groups are not true, the very fact that [the appellant] has repeatedly made those claims may demonstrate an ideology of security concern, which I take seriously particularly given the current global context. In this regard, I have also considered the non-disclosable information.

[46]    Although I consider there is a low likelihood of [the appellant] carrying out his threats, I consider it to be more than a minimal or remote chance. Further, I considered that the threats made by [the appellant] cannot be ignored in the current global context. In this respect, I considered that, in the event that any of [the appellant’s] threatened activity (including his threat to blow himself) was carried out in Australia, this would likely result in significant harm to the Australian community.

[47]    I have therefore found that [the appellant] has not satisfied me that he passes the character test. Specifically, I have found that [the appellant] does not pass the character test by virtue of section 501(6)(d)(v) of the Act.

291    Having found that the appellant had not passed the character test by reason of s 501(6)(d)(v), the Minister then considered whether to exercise his discretion to refuse the protection visa. On the question of the risk to the Australian community, the Minister concluded:

[59]    I noted that it has been submitted that [the appellant’s] mental health concerns between 2014 and 2015 should be ‘held in isolation’, and were triggered by a period of extreme stress following the receipt of information that his mother had died and by being re-detained in a high security detention facility. His migration agent noted that, prior to 2014 and following 2015, [the appellant] has not experienced any acute episodes of bipolar and submitted that, in this context, the risk that [the appellant] poses to the Australian community if he engages in similar conduct is very low. I noted that [the appellant] has also submitted that he does not pose a risk to the Australian community.

[60]    I noted the submissions that [the appellant] has never perpetrated any harm or violence against any person, nor been subjected to any further discipline action since April 2015 aside from referrals for medical assistance. I have also taken into account submissions that [the appellant] has never been charged with any offences and has been subsequently cleared from any investigations by ASIO and the police on the basis that [the appellant] is not an adverse security risk.

[61]    While submissions made by or on behalf of [the appellant] tend to suggest a low likelihood of [the appellant] carrying out his threats, the likelihood is not negligible. In this respect, I have also considered the non-disclosable information. Should [the appellant] carry out his violent threats in Australia, it would likely result in injury or loss of life to members of the Australian community.

[62]    Having particular regard to the extremely serious nature of the claims and threats made by [the appellant], I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community. I have placed significant weight on this consideration.

292    The Minister then considered expectations of the Australian community, and concluded as follows:

[65]    I have also considered submissions made that refusal of [the appellant’s] visa would be contrary to the Australian community’s expectations given [the appellant’s] very compelling protection claims, and that the Australian community's expectations would be that the risk of indefinite detention should outweigh [the appellant’s] previous conduct, which it has been submitted was not serious or genuine in nature and does not pose an ongoing risk to the Australian community.

[66]    However, I considered that the Australian community would place greater weight on the need to protect the Australian community in light of the nature and seriousness of the claims and threats made by [the appellant] and the current global context, and would expect that [the appellant] would not be granted a protection visa. I have placed significant weight on this consideration.

293    Under the heading International non-refoulement obligations, the Minister accepted that the appellant faced a well-founded fear of persecution and threat to life if returned to Syria, that Australia owed him non-refoulement obligations which would be breached if he was returned to Syria, that a legal consequence of the decision was that he would be liable to removal from Australia as soon as reasonably practicable without regard to those non-refoulement obligations, and that there was no known prospect of removal to any country other than Syria. The Minister then noted that the obligation to remove the appellant would not apply if he exercised a non-compellable power under s 195A of the Act to grant the appellant a visa if he believed doing so was in the public interest, or invited the appellant to apply for a bridging visa, though provided no indication of whether this would be done:

[67]    I have had regard to submissions made on [the appellant’s] behalf regarding [the appellant’s] protection claims. I accept that my Department has found that [the appellant], if returned to Syria, would face a well-founded fear of persecution at the hands of the Assad-led regime or opposing rebel forces including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance.

[68]    I accept the Departments finding that [the appellant] is a person in respect of whom Australia has international non-refoulement obligations. This means that removal of [the appellant] to Syria would breach those obligations. I also accept that there is currently no known prospect of removal to any other country.

[69]    I am aware that the statutory consequence of a decision to refuse to grant [the appellant] a visa is that, as an unlawful non-citizen, [the appellant] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime, detention under section 189. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen.

[70]    I have noted that the obligation to remove [the appellant] would not apply if, following my refusal to grant him a Temporary Protection (subclass 785) visa, he is granted another visa. However, I am aware that as a result of a refusal decision under section 501(1), there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the appellant] will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless I determine, under section 48B of the Act, that section 48A of the Act does not apply to him). Application for a visa other than a protection visa will be subject to section 501E of the Act, which will apply to [the appellant] as a result of my refusal decision under section 501(1).

[71]    This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation.

[72]    I am mindful that even if I refuse to grant [the appellant] a Temporary Protection (subclass 785) visa, I have a personal non-compellable power in section 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the appellant’s] favour, he will be liable to removal as soon as reasonably practicable in accordance with section 198 of the Act, including to Syria, having regard to section 197C.

294    The Minister then concluded by weighing up the relevant factors as follows:

[76]    In considering whether to refuse [the appellant’s] visa, I considered the risk posed to the Australian community by [the appellant’s] continued presence in Australia, taking into consideration the serious nature of the threats he has made.

[77]    I found that the Australian community could be exposed to significant harm should [the appellant] engage in conduct similar to that threatened. I could not rule out the possibility of [the appellant] engaging in serious conduct akin to that threatened. I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community.

[78]    Further, in light of the nature and seriousness of the claims and threats made by [the appellant] and the current global context, I considered that the Australian community would expect that [the appellant] would not be granted a protection visa.

[79]    I found the above considerations in favour of refusal outweighed the countervailing considerations in [the appellant’s] case, including the potential harm for [the appellant] if he is returned to Syria, Australias international non-refoulement obligations, and his mental health concerns.

[80]    I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient for me not to refuse the visa. In the present circumstances, I found that the risk posed by [the appellant] to the Australian community is unacceptable.

DECISION

[81]    Having found that [the appellant] does not satisfy me that he passes the character test, and that the reasons for refusing his present visa application outweigh the reasons for not refusing it, I have decided to exercise my discretion to refuse to grant [the appellant] a Temporary Protection (subclass 785) visa under section 501(1) of the Act.

The notice of appeal

295    The originating application before the primary judge advanced six grounds of review. The amended notice of appeal now before this Court is narrower, and advances an overall first ground of asserted error on the part of his Honour in not finding jurisdictional error in the Minister’s assessment of risk to the Australian community. The appellant seeks to make good that overall ground by reference to three further grounds of appeal, which effectively function as particulars to ground 1, citing particular paragraphs of his Honour’s reasons for judgment as follows:

[2]     The primary judge erred in not finding that the respondent failed to consider relevant material, namely that the appellant had been living a peaceful existence in the Australian community for about 12 months from January 2013: [148].

[3]    The primary judge erred in finding that a document provided by the respondent with his “Notice of intention to consider refusal of your visa application” [the 8 July 2015 request to be allowed to live in the community] was not information required to be taken into account by the respondent in determining to refuse the appellant’s visa application: [147].

[4]    The primary judge erred in not finding that the decision of the respondent, that the appellant does not pass the character test and that the reasons for refusing the appellant's visa application outweigh the reasons for not refusing it, was unreasonable: [100].

296    Appeal grounds 2 and 3, which were part of judicial review ground 6 before the primary judge, concern the peaceful existence submission in the appellant’s 8 July 2015 letter to the Minister, in relation to the period that he was in the community from early 2013 to early 2014. As already noted, the letter is dated almost a year before the appellant applied for a protection visa on 27 June 2016. The appellant asserted below, and continues to assert in this appeal, that this letter and the reference to a peaceful existence in the community, was a mandatory relevant consideration (ground 3) that was not taken into account as such (ground 2).

297    It is logical to deal with ground 3 first, because that concerns the threshold question of whether the 8 July 2015 letter was a mandatory relevant consideration, before turning to the question raised by ground 2 of whether that letter, and in particular the peaceful existence submission, was shown not to have been taken into account.

Ground 3

298    The primary judge primarily concluded (at [138] to [147]) that:

(1)    as the Minister was expressly required to have regard to all information in a visa application by s 54 of the Migration Act;

(2)    as the Minister was expressly required by s 55 to have regard to all further information provided by a visa applicant after such an application has been made; and

(3)    as the 8 July 2015 letter preceded the making of the protection visa application almost 12 months later,

the 8 July 2015 letter, and in particular the peaceful existence submission, was not a mandatory relevant consideration and therefore could be, but was not required to be, taken into account.

299    The key relevant provisions in Part 2, Division 3, Subdivision AB, headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications” are ss 51A and 54 to 57. They relevantly provide as follows:

51A    Exhaustive statement of natural justice hearing rule

(1)    This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

54    Minister must have regard to all information in application

(1)    The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2)    For the purposes of subsection (1), information is in an application if the information is:

(a)    set out in the application; or

(b)    in a document attached to the application when it is made; or

(c)    given under section 55.

(3)    Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

55    Further information may be given

(1)    Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2)    Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

56    Further information may be sought

(1)    In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

(2)    Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

57    Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or part of the reason:

            (i)    for refusing to grant a visa; or

      (ii)    for deciding that the applicant is an excluded fast track review applicant; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

Note: Excluded fast track review applicant is defined in subsection 5(1).

(2)    The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.

300    The primary judge’s reasoning concluded as follows (at [147]):

Assuming that s 51A does not foreclose the possibility that mandatory relevant considerations might be implied, it is significant that: (a) ss 54 and 55 specifically identify what must be taken into account when considering a visa application; and (b) subdiv AB is expressed to be a “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. Sections 54 and 55 provide that the Minister must take into account all the information in the application and certain information received subsequently. The statutory language and context do not leave room for an implication that the Minister is required to consider material received before the visa application was made.

301    Ground 3 challenges that finding. Unless that challenge succeeds, ground 2 can go nowhere because there could not have been the jurisdictional error relied upon by the appellant in failing to consider the 8 July 2015 letter if it was not a mandatory relevant consideration.

302    The Minister, despite successfully having relied upon the argument before the primary judge that s 54 with s 55 was an exhaustive statement of what had to be taken into account, now abandons that reliance. He contends in other proceedings, and for consistency now in this appeal, that Subdivision AB has no application to visa refusal decisions on character grounds under s 501 of the Act. This was an indispensable, but not overt, part of the argument that was accepted by a majority of three out of five judges in Minister for Home Affairs v Ogawa [2019] FCAFC 98; 369 ALR 553 in finding, in that s 501 case, that s 56(1) compelled the Minister to have regard to all additional relevant information given by a visa applicant in response to an invitation by him. That conclusion was only possible if Subdivision AB, and thus s 56, applied to such a case.

303    The Minister applied for special leave to appeal to the High Court in Ogawa. That application was dismissed on 13 November 2019, a week after the hearing of this appeal: Minister for Home Affairs v Ogawa [2019] HCASL 375. The Minister did not advance any argument in this appeal that the presently constituted Full Court should depart from the Full Court decision in Ogawa insofar as it necessarily depended on Subdivision AB applying to a s 501 case. Absent a contrary High Court decision, the high threshold of finding that the majority decision in Ogawa was plainly wrong in proceeding upon that basis cannot readily be surmounted. Such a finding is not reasonably open and this Court therefore should proceed upon the basis that the practical effect of Ogawa is that Subdivision AB does apply to s 501. That then necessitates considering the appellant’s arguments as to why the primary judge erred in finding that ss 54 and 55 operated so as to preclude the 8 July 2015 letter being required to be considered.

304    The appellant’s initial written submissions (at [21]-[22]), and the second part of his reply submissions on this ground (at [11]) assert that the primary judge had found that ss 54 and 55 did not permit consideration of the 8 July 2015 letter. As is apparent from the last sentence of [147] reproduced at [300] above, his Honour’s finding above was that the 8 July 2015 letter was not required to be considered, not that it was forbidden to be considered. On this conclusion by the primary judge, it was a matter for the Minister as to whether or not to consider the letter.

305    The appellant also submits that because the 8 July 2015 letter went to the issue of the risk to the Australian community, and that such risk was a mandatory relevant consideration because of the express terms of s 501(6)(d)(v), the peaceful existence submission within the letter was a mandatory relevant consideration. That cannot be accepted. The relevance of individual items of information is not elevated to being a mandatory relevant consideration merely because it may have some possible bearing on the application of a statutory test: see generally Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [41]-[49].

306    The balance of the appellant’s reply submissions on this topic assert that, when the Minister invites an applicant to comment or provide information, the documents contained within the request itself must be given the status of a mandatory relevant consideration. In this case, the appellant submits, although the 8 July 2015 letter did not form part of the appellant’s protection visa application or response to the Notice, the fact that it was one of the attachments to the Notice means that it must be considered by the Minister as the decision-maker.

307    At the hearing of the appeal, the appellant’s argument was developed as follows. He relies upon the following invitation to comment in the Notice. Although the appellant relies mainly on the first sentence, this section of the Notice has been reproduced in full in order to provide context:

Invitation to comment

Before the decision-maker considers whether to refuse to grant you a visa, you have an opportunity to comment or provide information on any factors you believe to be relevant to whether you pass the character test and, if the decision-maker considers that you do not, as to why your visa application should nevertheless not be refused.

While you are under no obligation to do so, you may wish to comment or provide information, including, in particular, information regarding the following:

    Your alleged statement to NSW Police on 12 January 2014 that you wished to return to Syria and blow yourself up and your subsequent statement on 20 April 2015

    Any links you have or have had with Al Qaeda or persons associated with Al Qaeda

    Any links you have or have had with ISIL or persons associated with ISIL

    The nature of any physical or weapons training you have received

    The nature of your association with the Australian Caucasian man you met at the Chester Hill mosque referenced in Attachment 4

    Threats you have made whilst in immigration detention against other detainees and service provider staff

    Any other information you wish to provide regarding your character, including information that may have already been provided to the Department.

308    The appellant submits that the first sentence of the invitation to comment reproduced above, by referring both to commenting upon and providing information in response to the Notice, is both an invitation to comment on the material provided pursuant to s 57(2)(c) and an invitation to “give” additional information under s 56(2). That submission should be accepted.

309    The appellant then submits that it is nonsensical that the Minister could give an invitation to comment on specified relevant information (s 57(2)(c)) and an invitation to give additional information (s 56(2)) without considering the information that he has sought a comment about or has invited further information to be given about. The request by the decision maker is said to “merge” with the reply by the appellant, such that the obligation in s 56(1) to have regard to any information provided in response to a request equally applies to information contained within that request. In support of his argument, the appellant notes that a visa applicant would otherwise have to again provide information that they are already aware is in the possession of the Minister and which the Minister has noted he is considering (necessarily going beyond the visa application itself which is required to be considered by s 54(1) and (2)(a)). Secondly, the appellant submits, the invitation to comment on specified material under s 57(2)(c) involves an implicit acceptance by the Minister that the material is relevant information” (s 57(2)(a)) that the Minister considers would be the reason or part of the reason for refusing to grant a visa (s 57(1)(a)(i)).

310    The appellant’s submissions cannot be accepted. Section 56 specifies that a Minister must have regard to information provided (relevantly here, in response to the invitation to comment in the Notice). The 8 July 2015 letter was neither provided in this manner nor referred to or otherwise relied upon in the appellant’s response to the Notice. Further, a central problem with the appellant’s argument in relation to both s 56 and s 57 is that the invitation to comment and provide information was not specifically in relation to the 8 July 2015 letter. Under the heading “Enclosures”, the Notice had earlier noted only that the Minister may rely on the enclosures (reproduced above at [276]), thus including the 8 July 2015 letter, not that he would necessarily do so. The earlier section entitled “Invitation to commentmade no specific mention of the 8 July 2015 letter, but instead raised particular incidents that the appellant may have wished to comment upon (see [307] above).

311    The only indication that the Notice gave that the 8 July 2015 letter would be considered was in relation to the specific incidents summarised at [274] above that were of concern, some of which cited the attachment containing that letter as a source, but no more. There is no basis for the suggestion that the Notice specifically invited comment or further information upon the peaceful existence submission contained within the letter, or implicitly accepted that it was “relevant information that would be central to the Minister’s determination within the meaning of s 57.

312    The appellant’s alternative argument in reliance on s 56, advanced following a question from the bench during the hearing of the appeal, depends upon characterising the 8 July 2015 letter as falling within the description of something that the appellant had given, in the sense of information that the Minister wanted to “get” (s 56(1)), or additional information that the Minister invited the appellant to “give” (s 56(2)) as part of the process after a visa application has been made. That argument relied upon two stages of argument in relation to the last sentence in the first paragraph of the response to the Notice, which is asserted to contain an implied reference to the 8 July 2015 letter. That paragraph is as follows:

Our client, [the appellant], applied for a protection visa on 27 June 2016 and attended a protection visa interview on 8 July 2016. On 7 August 2017 [the appellant] received a ‘Notice of intention to consider refusal of his TPV application’ (‘Notice of intention to refuse’). We now provide the following submission and accompanying documents in support of [the appellant’s] visa application. We continue to rely on all evidence and submissions previously provided by or on behalf of our client.

313    Both stages of this argument had to succeed for this to prevail. The first stage of the appellant’s argument is that the last sentence We continue to rely on all evidence and submissions previously provided by or on behalf of our clientis not to be read as being confined to evidence and submissions previously provided by or on behalf of the appellant in support of his protection visa application, but rather should be taken to be referring to any evidence and submissions provided to the Minister’s Department at any earlier time on any other topic. The former more confined interpretation would not include a reference to the 8 July 2015 letter, and thus the peaceful existence submission, as it preceded the protection visa application by almost a year. The latter broader interpretation would include a reference to the 8 July 2015 letter. Although nothing ultimately turns on the difference due to the conclusion reached about the second stage of this argument, the former understanding of the last sentence (that is, excluding a reference to the 8 July 2015 letter) is to be preferred for the following reasons:

(1)    the evident purpose for the presence of the last sentence is to make sure that the new statement from the appellant dated 30 August 2017 was not to be taken to be implicitly abandoning any prior protection visa claim by reason of failing to repeat it, including in particular his 27 June 2016 statement containing a non-exhaustive summary of his protection claims in support of his protection visa application and the other supporting material that he had provided or caused to be provided – no other purpose for the sentence is readily apparent;

(2)    the reference to “continue to rely” speaks of a continuation of the visa application process, to which the Notice related, not to any unrelated process, even if there might have been scope for some commonality of information;

(3)    it is to be expected that the migration agents were aware of what had already taken place in that visa application process, even if not all documents previously provided were in their possession;

(4)    it is to be expected that the migration agents would only be referring to material directly relevant to the protection visa application to which the Notice was directed and to which that response was directed;

(5)    the response itself makes no reference to the 8 July 2015 letter, which had already been attached to the Notice;

(6)    the migration agents are inherently unlikely to be referring to an open-ended prior body of pre-visa application material which may include information not known to those agents, and which might conceivably be harmful to the appellant’s case for the grant of a protection visa; and

(7)    had the contrary broader understanding of what was referred to been at all apparent, it seems likely that this would have been seized upon in the proceeding before the primary judge or in this appeal proceeding, prior to it being raised by this Court at the appeal hearing.

314    The second stage of the appellant’s alternative argument is that the sentence “We continue to rely on all evidence and submissions previously provided by or on behalf of our clientfalls within the s 56(2) concept of to “give”. This argument must fail because the requirement to have regard to information that a visa applicant gives cannot properly be understood to extend to information that a visa applicant does not give, but only refers to. The whole point of the regime for information reflected in ss 54, 55 and 56 is to limit it to information that has actually been given, and then to require the Minister to have regard to it.

315    This ground of appeal must fail because the primary judge was plainly correct. The statutory language and context leave no room for finding that pre-visa application information provided by a visa applicant of the kind contained in the 8 July 2015 letter is a mandatory relevant consideration in considering such an application.

Ground 2

316    Strictly speaking it would not matter if this ground succeeded, because even if it was shown that the peaceful existence submission in the 8 July 2015 letter relied upon was not considered, that could not vitiate the Minister’s decision given the absence of any obligation to consider it. However the ground has been raised and should be dealt with.

317    The primary judge concluded, in the alternative (at [148]), that in any event:

(1)    the appellant had not established that the 8 July 2015 letter was not taken into account;

(2)    the peaceful existence submission in the 8 July 2015 letter was not materially different from submissions that were taken into account; and

(3)    the substance of the matters said not to have been taken into account (of which the peaceful existence submission in the 8 July 2015 was only a part) was reflected in the material otherwise overtly before the Minister and it had not been demonstrated that material was not considered.

Each of those points were expanded upon by his Honour in some detail (at [149]-[163]).

318    The appellant does not engage with the first point made by the primary judge above, namely that it was not demonstrated that the peaceful existence submission in the 8 July 2015 letter relied upon was not taken into account. It is worth noting that letter itself and other aspects of its contents were expressly referred to in the Minister’s reasons at [9] and [13]. This poses a formidable hurdle to any successful argument that not specifically referring to the peaceful existence submission means that it was not considered, as opposed to being insufficiently material or different from other information to warrant any separate mention. This is a sufficient basis on its own for ground 2 to fail.

319    The balance of the appellant’s submissions rely upon the asserted importance of the peaceful existence submission in the 8 July 2015 letter to submit that this was sufficient to demand not just that the reference be considered, but that it be given such weight and importance as to demand an active intellectual process be applied to it, and presumably some analysis of it in the Minister’s reasons. This overstates the significance of the peaceful existence submission and encroaches upon the obligation not to engage in merits review. It does not address the primary judge’s second conclusion (at [148], summarised at [317(2)] above) that the peaceful existence submission in the 8 July 2015 letter was not materially different from submissions that were taken into account going to the question of risk, which was accepted to be low, let alone establish any error in that conclusion. Even assuming that the Minister was obliged to have regard to the peaceful existence submission in the 8 July 2015 letter, that does not mean it was required to be expressly manifested in the reasons for refusing to grant the visa. This is especially so when the appellant did not see fit to mention it in his response to the Notice, and the substance of the submission going to his low risk to the Australian community was able to gleaned from other material that was referred to.

320    This ground must fail because the appellant has not established any error on the part of the primary judge.

Ground 4

321    This ground of appeal takes issue with the primary judge’s conclusion, at [100], that there was a rational basis for the Minister to find that the appellant did not pass the character test. The appellant also asserts that his Honour erred in finding there was no legal unreasonableness in the Minister exercising his discretion to refuse the grant of the visa, and concluding that the factors in the appellant’s favour and the detriments he faced were outweighed by the serious consequences if the identified risk to the Australian community materialised.

322    While the appellant focuses on the primary judge’s reasons at [100], that paragraph needs to be considered in the context of the preceding paragraphs, including in particular [97]-[99], which followed a detailed consideration of the Minister’s reasons by his Honour. Those four paragraphs are as follows:

[97]    As is evident from its terms, a main purpose of s 501 is protection of the Australian community – see also: Stretton at [15] (Allsop CJ). The breadth of the discretionary power to cancel a visa under s 501(2) on character grounds was examined by Griffiths J in Stretton at [65] to [71]. The power to refuse to grant a visa under s 501(1) is similarly broad. Sections 501(1) and 501(6)(d)(v) are to be read in the context of the purposes of the Act as a whole. One such purpose is expressed in s 4 as: “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. The concept of the “national interest” is necessarily broad.

[98]    The applicant accepted in oral argument that it was open to the Minister to conclude that the applicant posed a low threat in the sense that there was a low chance of the relevant conduct occurring. The nature of the consequences to the Australian community if the relevant conduct occurred were not suggested to be other than potentially serious.

[99]    The Minister was faced with a difficult decision, balancing the low threat of serious harm to the Australian community with potentially life-threatening consequences to the applicant. Not everyone would agree with the result as a matter of merit. This Court’s role is limited to ensuring that the Minister acted within the bounds of legality: Stretton [12] to [13] (Allsop CJ). There must be a point at which a perceived risk is so unlikely, or the nature of the risk is so trivial, that a decision to refuse a visa under s 501(1), on the basis that the Minister was not satisfied that a visa applicant passed the character test by reason of s 501(6)(d)(v), would be legally unreasonable in circumstances where the consequences of the decision are of the kind they are here. It has been accepted that “proportionality” has a role to play in the sense that an obviously disproportionate response might be a pathway to a conclusion that the decision was unreasonable: Stretton at [57] (Griffiths J), citing Li at [74]; see also Stretton at [15] and [21] (Allsop CJ). That concept obviously cannot become a back door way of introducing merits review, as was made clear in Li and Stretton.

[100]    Here, there was a rational basis for the Minister to conclude that there was a low risk of relevant conduct occurring and that, if the applicant were to carry out in Australia a threat of the kind he had made in the past, the consequences would or could be extremely serious. The Minister’s decision that, in those circumstances, a protection visa should not be granted, notwithstanding the heavy considerations which weighed against such a conclusion, was one a decision-maker could reach without committing jurisdictional error on the basis of legal unreasonableness.

323    The explanation of the statutory framework identified by the primary judge at [97] was not questioned on appeal. Moreover, the concessions made by the appellant in oral argument before his Honour, and the way in which the case was conducted by the appellant, noted by his Honour at [98], were not sought to be withdrawn, or challenged as being inaccurately recorded, respectively. This appeal therefore had to be decided upon the basis that it was open to the Minister to conclude that there was a chance, albeit low, of the threatened conduct occurring in Australia, and that if that was to occur it would be potentially serious.

324    Sections 501(1) and (6)(d)(v), have been cast by the legislature in wide terms, with low thresholds, referable to the broad concept of national interest”. A visa applicant does not pass the character test if found to meet a threshold as low as “a risk” of representing a “danger to the Australian community. Representing a danger of this nature expressly includes merely “being liable to become involved in activities that are disruptive to, or in violence threatening harm to, the Australian community, but can also occurin any other way”. With a minimum threshold for “danger” being as low as being liable to be disruptive to the Australian community, and potentially even lower in some other way, the Minister has a very wide area within which to exercise a genuinely free discretion: Li at [66].

325    Because s 501(6)(d)(v) does not refer to any particular level of risk, be it high, low, remote or negligible, it is an evaluative exercise for the Minister to conduct as to whether any such risk exists, and if so, what the consequences might be. A conclusion of legal unreasonableness in the assessment of whether the degree of risk posed is above zero is inherently going to be very difficult to find, even in quite a factually extreme case. Correspondingly, when it comes to the exercise of the discretion to grant the visa sought, despite not being satisfied that the visa applicant has passed the character test, it is for the Minister to determine whether that degree of risk is acceptable or not, including whether it is outweighed by countervailing considerations.

326    In the exercise of a statutory power which requires reaching a state of satisfaction, in this case refusal to grant a visa under s 501(1) if the Minister was not satisfied that the appellant passed the character test, an implied condition is that this state of mind be arrived at rationally, including that findings of fact be based on evidence that is rationally probative of the fact in issue: BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [40]. While this challenge was brought upon the basis of asserted legal unreasonableness, not irrationality per se, the assessment of whether the material before the Minister was capable of supporting the impugned conclusions reached is much the same. Legal capacity of such material, rather than its weight, goes to the lawfulness of the exercise of power, not the merits of that exercise of power. It is akin to the difference between the role of a tribunal of law in deciding whether evidence has the legal capacity to prove a fact, such that there is a case to answer, and a tribunal of fact in assessing evidence to determine whether a fact in issue has been proven. Thus, in a criminal jury trial, “if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision” and may only be taken away from the jury by a directed verdict “if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen (1990) 171 CLR 207 at 214-15. It hardly seems likely that an administrative decision-maker has less latitude to evaluate material that lacks quality than a jury deciding the question of whether guilt of a serious criminal offence has been established.

327    The legal capacity of the material before the Minister to support the conclusions reached will not necessarily be lacking if it is weak, or capable of a benign explanation, or might support a different conclusion, because that is merely something about which reasonable minds may differ, perhaps even vociferously: see BFH16 at [29], citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [96] and [130], and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47].

328    The appellant’s submissions attack both:

(1)    the reasoning process by the Minister, especially at [46] and [61], reproduced above; and

(2)    the outcome, especially at [79], reproduced above and again below.

329    Before considering the specifics of those submissions, it is helpful to recall the observations by Allsop CJ on this topic in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1:

[8]    The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

[11]    The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

[12]    Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

[13]    The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

330    As the Chief Justice observed in Stretton in [8], the role of this Court in conducting judicial review of the Minister’s decision is supervisory and cannot involve substituting the Court’s view as to how a discretion should be exercised for that of an administrative decision-maker, including in particular substituting its view of what is reasonable for that of the Minister: see also Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [66]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [59]. The issue therefore is whether the arguments advanced in support of this ground of appeal go beyond a challenge to the merits of the evaluative exercise carried out by the Minister, so as to substantiate a finding of legal unreasonableness.

331    While the relationship between the reasoning process as to the character test, and the conclusion reached as to the ultimate refusal to grant the visa, should not be rigidly set (Stretton, above, at [13]), the two were addressed separately by the appellant, the second effectively as an alternative in the event that the challenge to the first did not succeed. It is therefore convenient to address them separately, while acknowledging their interplay and overlap.

(1)    The reasoning process on the character test

332    As to the challenge to the Minister’s reasoning process on the character test, the appellant submits that there was no logical basis for the Minister to infer, based on the threats made by him while delusional due to his bipolar disorder, that he posed “more than a remote chance” of carrying out those threats. This was in the context where there were no charges against him in relation to the conduct and it was not apparently doubted that he was not considered a security threat by ASIO or police. The only evident risk, according to the appellant, was that his mental condition would again deteriorate and he would make further threats, not that he would carry them out. It is that additional step of the Minister finding that there was a risk that the threats made might be carried out in Australia that is characterised by the appellant as being legally unreasonable.

333    An important aspect of the argument advanced both before the primary judge and on appeal concerned the finding by the Minister that the appellant had made two separate threats to blow himself up. The first threat was made at the time of the altercation on 12 January 2014, which the appellant said he would carry out in Syria, being a reaction to being told that his mother had been killed. The second threat was recorded as having been made on 20 April 2015 during a telephone call by the appellant to the Department’s Global Feedback Unit (known as the GFU).

334    As to the first threat, the primary judge reasoned at [47], correctly in my view, that it is “perfectly logical to reason that there is a risk that a person who is willing to blow themselves up might carry out such an act in a place different from that which they had specifically identified in the threat”.

335    As to the second threat, the appellant unsuccessfully sought to persuade the Minister that he was only referring to the prior threat made on 12 January 2014, not making a fresh threat to blow himself up. The Minister’s finding that this was a new threat was not required to be established to any curial standard. It could be established even by interpreting the arguably unclear or imprecise record of the Department in an unlikely way, provided that interpretation was available. The primary judge reasoned at [48], again correctly in my view, that this could reasonably be understood as a new threat by the appellant to blow himself up in Australia.

336    Those findings about the threats made by the appellant to blow himself up were important to the Minister’s risk assessment, including as to seriousness. Reasonable minds can differ as to how that risk should have been assessed, both in terms of the likelihood of the threat being carried out, and the seriousness of the consequences for the Australian community if it were to be carried out. Even the most emphatic disagreement with the reasoning in relation to that conclusion, identifying holes in the reasoning and shortcomings in the evidence or other material upon which the reasoning is based, does not necessarily or even readily render it legally unreasonable.

337    The Minister’s reasoning and conclusion in relation to the appellant not satisfying him that he passed the character test may be seen to squarely meet the requirement in s 501(6)(d)(v) of a finding of a certain kind of risk. The Minister’s evaluative finding was that there was a low likelihood, found to be more than minimal or remote, of the threatened activity in fact taking place in Australia. The Minister found that the possibility and thus risk of this taking place could not be excluded, and if it did occur could result in significant harm to the Australian community.

338    That was a very pessimistic approach to take, and could be seen as overly cautious, but the language of s 501(6)(d)(v) is cast in terms that authorised the Minister to be highly protective of the Australian community when it came to granting or refusing a visa when character is in issue. The problem with the appellant’s argument as to the reasoning process, apart from apparently departing from the concession recorded in the primary judge’s reasons at [98] without first obtaining leave to do so, is that it does not engage with the substance of the Minister’s reasons, as analysed by his Honour.

339    Taking the appellant’s threats to blow himself up seriously, the Minister was entitled to reason that once made, such a threat could possibly be carried out in Australia, even if that was not very likely. Some degree of risk that the appellant would carry out his threats, however low, was still rationally able to be found by the Minister, as the primary judge effectively concluded. I therefore consider that it was a conclusion that was open to the Minister as a matter of subjective assessment, even if the available information about the appellant’s prior conduct did not have to be read and understood in that way. That a different conclusion could have been reached by assessing the material in the way that the appellant contends should have been done amounts to no more than inviting impermissible merits view. That is because it focuses on the weight to be given to the evidence, not its legal capacity to support the conclusion reached. It was not legally unreasonable for the Minister to find a low possibility and thus risk that threats of this kind might be carried out. In substance, this argument, if accepted, would have the effect creating a threshold higher than provided for by the legislature of “a risk.

340    I am therefore not satisfied that the necessary threshold of legal unreasonableness has been surmounted in relation to the reasoning of the Minister in finding that the low risk existed, nor in the assessment of the material relied upon to reach that conclusion, any more than it ultimately was at the appeal stage in Stretton.

(2)    The outcome in refusing the grant of the visa

341    As to outcome, being the ultimate exercise of the discretion to refuse the grant of the visa sought, the substance of the appellant’s argument is one of asserted disproportionality between the finding of a low level of risk to the Australian community on all the evidence, and the ultimate conclusion reached at [79] of the Minister’s reasons, reproduced again for convenience:

I found the above considerations in favour of refusal outweighed the countervailing considerations in [the appellant’s] case, including the potential harm for [the appellant] if he is returned to Syria, Australias international non-refoulement obligations, and his mental health concerns.

342    Establishing legal unreasonableness in relation to an outcome may be more difficult than for a process of reasoning. The appellant was required to demonstrate that the Minister’s ultimate decision to refuse to grant him a visa was not within the range of possible lawful outcomes: Stretton at [11], reproduced at [329] above. That is, the outcome itself had to be an unlawful exercise of the power.

343    The appellant submits that the Minister’s finding of, at most, a low likelihood of the threatened conduct occurring, produced the disproportionate outcome of the protection visa being refused. The outcome is said to be disproportionate due to the necessarily greater weight given to the need to protect the Australian community in light of the “nature and seriousness of the claims and threats” made when due regard is had to the Minister’s findings or awareness that:

(1)    the conduct giving rise to the risk was caused by mental illness and he has no recorded criminal history;

(2)    he has never perpetrated any harm or violence against any person, apparently accepting submissions that he had never been charged with any offence and was cleared by police and ASIO;

(3)    he had already spent five years in detention;

(4)    the Minister’s Department had found he had a well-founded fear of persecution if he was returned to Syria including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance; and

(5)    notwithstanding Australia’s non-refoulement obligations he was be liable to deportation on refusal of his protection visa application.

344    This aspect of the challenge is confined to the question of whether it was legally unreasonable for the Minister to balance the identified low risk (and potentially dire consequences if realised) against the other factors, including the identified individual and cumulative detriments, and conclude that the former should dominate, leading to the adverse exercise of the discretion.

345    The appellant submits that, in the circumstances listed above, the exercise of the discretion to refuse the visa for the reasons given was so unjust, arbitrary or disproportionate as to be beyond power, relying on Stretton. As the primary judge noted, Stretton makes it clear that although disproportionality” may be a pathway for finding legal unreasonableness, it cannot be used to conduct impermissible merits review: see in particular Allsop CJ at [21] and Griffiths J at [57]-[58].

346    Once the Minister had made the risk assessment leading to the conclusion that the appellant failed the character test, it was for the Minister to assess and weigh the competing considerations as to the exercise of the discretion to nonetheless grant the visa sought. It was for the Minister to decide whether or not the risk and its potential consequences, if realised, did or did not outweigh the appellant’s compelling circumstances and the detriments he may face, including in particular those identified by the appellant on judicial review and in this appeal.

347    Each of the factors relied upon by the appellant before the primary judge, and on appeal, summarised above, are doubtless matters that could have resulted in a different conclusion being reached in the exercise of the discretion. The competing considerations could, on the merits, have been weighed and assessed differently, giving dominant weight to the factors favouring the grant of the visa, instead of it being refused. However that evaluative exercise was for the Minister, and not for the primary judge, as his Honour acknowledged. Neither individually, nor cumulatively, did the features the appellant relied upon compel a finding that the result arrived at was legally unreasonable. However harsh the conclusion reached by the Minister, it was, in these circumstances, within his lawful authority.

348    If an appeal on the merits had been permitted, that might well have produced a different outcome. To find, as the appellant asserts, and in the way this has been argued, that this conclusion was so unjust, arbitrary or disproportionate as to be beyond power by reason of legal unreasonableness, called for the primary judge, and for this Court in conducting an appeal by way of rehearing, to evaluate the competing considerations and decide which should prevail. For the primary judge, and for this Court, to focus on the weight that should have been given to the different features was nothing more than impermissible merits review.

349    It follows that the appellant’s assertion that the conclusion reached was so unjust, arbitrary or disproportionate as to be legally unreasonable does not rise higher than emphatic (and understandable) disagreement, emphasising the significance of his circumstances, past, present and future. The appellant has not been able to rise above merits review to successfully argue not just that a different conclusion could have been reached on all the material, but that in the lawful exercise of power, the conclusion reached was not available. It does not establish any error in the primary judge’s ultimate conclusion at [100], reproduced at [322] above, that the high threshold of legal unreasonableness had not been demonstrated.

350    I am therefore unable to accept that, in effect, the Minister’s decision could only lawfully be made in favour of the grant of the visa to the appellant. I am therefore unable to agree that any of these three conceptually similar pathways relied upon – unjust, arbitrary or disproportionate – have been shown to infect the Minister’s decision to refuse to grant the visa. I do not accept that legal unreasonableness in the conclusion reached as to the exercise of the discretion – that is to say, as to the outcome reached – has been established, such that the primary judge erred.

(3)    Conclusion on ground 4

351    No error on the part of the primary judge has been established, such that this ground of appeal must also fail.

Conclusion

352    As each ground of appeal must fail, the Minister’s notice of contention concerning the non-disclosable information does not arise for consideration.

353    The appeal should be dismissed with costs.

354    I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.

Associate:

Dated:    28 May 2020