FEDERAL COURT OF AUSTRALIA

Masi-Haini v Minister for Home Affairs [2023] FCAFC 126

ORDERS

THE COURT ORDERS THAT:

1.    Grounds 1, 2 and 4 of the respondent’s amended notice of contention be upheld.

2.    The appeal be dismissed.

3.    The appellant’s application made in his submissions filed on 26 May 2023 be dismissed.

4.    The appellant is to pay the respondent’s cost of the appeal and of the application referred to in Order 3 above.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders made dismissing an application for judicial review of a decision of the respondent (Minister): see Masi-Haini v Minister for Home Affairs [2022] FCA 1326 (J). The Minister had refused to revoke a decision to cancel the appellant’s Class TY Subclass 444 visa.

BACKGROUND

2    The background to the appeal can be stated briefly.

3    The appellant is a citizen of New Zealand. He came to Australia as a child and has lived most of his life in Australia.

4    On 23 September 2015 the appellant was convicted in the District Court of New South Wales of two counts of “Robbery while armed with dangerous weapon” and was sentenced to six years imprisonment on each count and one count of “Assault w/i to rob armed offensive weapon wound/GBH” for which he was sentenced to eight years imprisonment.

5    On 8 March 2016 the appellant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) by a delegate of the Minister (cancellation decision).

6    The delegate was satisfied that the appellant did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c) of the Act. That is, because the appellant had a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more.

7    In response to an invitation from the Minister to do so, on 7 May 2016 the appellant made representations seeking revocation of the cancellation decision.

8    On 12 November 2021 the Minister made her decision refusing to revoke the cancellation decision (Minister’s Decision).

The Minister’s Decision

9    In making his representations to the Minister the appellant did not challenge the delegate’s conclusion that he did not pass the character test. The Minister was satisfied that the appellant did not do so and focussed her attention on whether there was another reason why the cancellation decision should be revoked. In doing so, although not legally bound to do so, the Minister had regard to Direction No. 90, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA of the Act (Direction 90).

10    Having regard to the grounds of appeal, it is only necessary to set out some limited aspects of the Minister’s Decision. It is summarised in detail by the primary judge at J [9]-[34].

11    First, in considering the primary consideration, protection of the Australian community, the Minister considered two factors: nature and seriousness of conduct; and risk to the Australian community. In relation to the latter, she had regard to, among other things, the appellant’s affiliation with an outlaw motorcycle gang (OMCG).

12    On that topic, the Minister first referred to the appellant’s submission that he had joined the OMCG “seeking a sense of acceptance and belonging during a difficult period in his life”. Based on available evidence and what the appellant had told a community corrections officer, the Minister deduced that he had been a member of the OMCG since late 2011. The Minister then referred to an Australian Criminal Intelligence Commission fact sheet dated 12 April 2019 in relation to organised crime groups and outlaw motorcycle gangs. At [44]-[45] of her decision she continued:

44.    While there is nothing to indicate that Mr MASI-HAINI took part in any criminal activity as part of the Comancheros OMCG, I find Mr MASI-HAINI's statement that ‘joining this club was the apex of my decline as a moral member of society’ is evidence that he knew of the gang’s outlaw status and involvement in criminal activity when he joined. I consider that his decision to join such an organisation, renowned for violence and identified by law enforcement as a criminal threat, to be of concern Attachment HI.

45.    While I acknowledge Mr MASI-HAINI reports he ceased to be a member of the Comancheros OMCG, his past membership causes me to retain concerns about his prospects of maintaining a law abiding lifestyle in future.

(Emphasis in original.)

13    The Minister also had regard to the appellant’s remorse and rehabilitation. The Minister referred to submissions by the appellant and his family, a report from a consultant forensic psychologist prepared for the Distinct Court and the courses completed by the appellant. At [40]-[41] the Minister said the following by way of conclusion on this topic:

40.    I have regard to submissions from various friends and family members and accept that Mr MASI-HAINI will have a support network in the community. I note that Mr MASI-HAINI refers to a ‘split’ between his parents and himself prior to his offending. While I accept there may have been some difficulties in the relationship, I consider that the loan he gave to his father from the money paid to him for a major roofing job indicates that the relationship was intact in the lead up to the offending.

41.    However I note that both sentencing remarks and Mr MASI-HAINI’s own submissions make it clear that he had a supportive family, was an active member of his church community, had a good employment history and was strongly committed to his children throughout most of the period in which he continued to offend quite regularly and even when he was first sent to prison. I therefore consider that all the support he had and the other supposedly protective factors did not in fact prevent him committing serious offences in the past. Accordingly, I do not see why the same factors would necessarily do so in the future.

14    At [51]-[53] of her decision the Minister set out her conclusion on risk to the community stating:

51.    I have found that Mr MASI-HAINI’s conduct is very serious. I have further found that violent crimes, especially those involving the use of a weapon, have the potential to cause physical and/or psychological injury or financial harm to members of the Australian community.

52.    While I consider that Mr MASI-HAINI has engaged positively with rehabilitation programs in prison and has made positive contributions as a role model in the Young Adult Offenders program and the Prevention of Alcohol Related Crime program, I cannot rule out the possibility that he will reoffend.

53.    On balance, I consider there to be a reduced, albeit ongoing, likelihood that Mr MASI-HAINI will reoffend. Nevertheless, I considered that, should Mr MASI-HAINI engage in similar conduct again it may result in psychological and/or physical harm or financial harm to members of the community. I have given this weight against revocation.

The decision of the primary judge

15    The appellant raised three grounds of review before the primary judge as follows:

1.    The Minister erred in making the following findings that were legally unreasonable:

(i)    that the Applicant’s (Mr Masi-Haini’s) family violence offending “must still be considered very serious” D[69], however the evidence supports the reverse conclusion; and

(ii)    that the Australian community would expect that non-citizens who have engaged in acts of family violence would expect they should not continue to hold a visa D[110], is a generalised conclusion without regard to any of the specific circumstances of Mr Masi-Haini.

Particulars

i.    The Minister acknowledged that a conviction for common assault is not evidence that Mr Masi-Haini engaged in any physical violence that caused bodily harm. This is consistent with Mr Masi-Haini’s evidence that he did not engage in any physical assault against his partner, rather they had an argument about him taking their daughter to church.

ii.    In assessing the seriousness of the family violence, the Minister found: no evidence of any frequency or trend of increasing seriousness as it was only one conviction; no repeated offending; Mr Masi-Haini undertook a number of programs that would be likely to address some of the drivers of the offence; no reoffending after a formal warning because there was only one offence; and his family violence offending was “not toward [the] upper end of the range of offending”: D[69] (emphasis added).

iii.    Mr Masi-Haini was never arrested on that day, and there is no evidence he was removed from the family home or the presence of his partner by the police; he did not even realise he had been charged for domestic violence until days later.

iv.    The Minister’s wholesale conclusion on community expectations failed to refer to any risk of re-offending of Mr Masi-Haini, failed to reconcile it to the contrary evidence, failed to refer to the personal circumstances of Mr Masi­Haini which may bear upon any reoffending and is inconsistent with the process of weighing up the relevant considerations.

2.    The Minister erred by failing to engage in any active intellectual process in respect to parts of the evidence and submissions which led to misunderstandings and/or misinterpretations of the evidence and to conclusions unsupported by the evidence.

Particulars

i.    The Minister found that Mr Masi-Haini knew of the bikie gang’s outlaw status and involvement in criminal activity when he joined, which was a cause for concern: D[44]. However, that was contrary to Mr Masi-Haini’s evidence. He said that he joined because he was having stresses in his life and was looking for acceptance and belonging. It was not until coming to prison that he realised he made a very selfish and bad mistake.

ii.    The Minister found that Mr Masi-Haini had supportive and protective factors such as good employment, a supportive family and commitment to his children when he committed the offences: D[41]. However, that was contrary to Mr Masi-Haini’s evidence. He said that he had no stable job, had a major financial issue, the stress of raising a family and the split of his parents and him, during the time leading up to committing the offences for which he was imprisoned.

iii.    The Minister found that as Mr Masi-Haini demonstrated no insight into his act of family violence that it limited any rehabilitation: D[67]. However, that conclusion is inconsistent with the evidence discussed at Particulars i to iii of Ground 1, and the other evidence of: their marriage one month after the incident; his wife’s support in Court; he was never arrested, charged or convicted for any family violence offending again for the next 4 years (up to his imprisonment for robberies); and there was no basis for the Minister to entirely rely on the Police Statement of Facts (D[20)) when they were not Agreed Facts and in the absence of any sentencing remarks of the Magistrate.

3.    The Minister erred by making material findings in the absence of probative evidence, or engaged in illogical or irrational reasoning, or the findings were legally unreasonableness.

Particulars

i.    The Minister found that although Mr Masi-Haini had ceased to be a member of the Comancheros Outlaw Motor Cycle Gang (OMCG), “his part membership causes me to retain concerns about his prospects of maintaining a law abiding lifestyle in the future” D[45].

ii.    The Minister did not reject any of Mr Masi-Haini’s evidence that he has had no association with OMCG for the past 8 years, and he made it clear he does not intend on rejoining them again. The Minister also acknowledged that “there is nothing to indicate that Mr Masi-Haini took part in any criminal activity as part of the Comancheros OMCG”: D[44].

iii.    The mere fact of Mr Masi-Haini’s past membership provided no probative basis for finding that he might not be law abiding in the future. Also the vagueness of that conclusion amounts to nothing more than speculation by the Minister.

iv.    In respect to the risk to the community, the Minister found that "I cannot rule out the possibility he will reoffend" (D[52]) and "[o]n balance, I consider there to be a reduced, albeit ongoing, likelihood that Mr Masi-Haini will reoffend" (D[53]).

v.    However, the Minister failed to make any finding that Mr Masi-Haini would be likely to commit any family violence offending again, and the evidence did not support it (see Particulars i to iii of Ground 1 and Particular iii. in Ground 2).

vi.    The Minister also failed to examine or make any finding in respect to the nature and circumstances of the past offending. Mr Masi-Haini committed the robberies for which he was imprisoned, under a threat to his life by the OMCG. The Court accepted that this threat was the motivation for his offences. However, the Minister failed to consider the bearing of those exceptional circumstances on the risk of reoffending, contrary to Assistant Minister for Immigration and Border Protection v Spendido (2019) 271 FCR 595.

16    The primary judge addressed the grounds by reference to those parts of the Minister’s Decision which they challenged.

17    The primary judge first considered an aspect of ground 2, by reference to particular (ii) to that ground, which challenged the Minister’s Decision at [31] and [40]-[41] concerning the appellant’s remorse and rehabilitation. The appellant submitted before the primary judge that there was an inconsistency between the finding at [41] and the Minister’s statement at [31] that she had taken into account the appellant’s submission that in the time leading up to his most recent offending he was experiencing major financial stress while trying to raise a family with no stable job. The primary judge rejected that submissions. At J [39] his Honour relevantly said:

… read fairly, D[41] deals with the applicant having supportive and protective factors in place at the time of each of his offences, whilst D[31] deals with a stressor which the applicant relied upon to explain his most recent offending. Further, read fairly, D[31] records a submission made by the [appellant] and D[41] records a finding made by the Minister in which, to the extent of any inconsistency, she did not accept the submission made. I note also that in D[41], the Minister referred to both sentencing remarks (which I take to mean those made in 2008 by Judge Sides and in 2015 by Judge Conlon) and the [appellant’s] own submissions as providing a basis for the finding in D[41].

18    The primary judge then considered the appellant’s submission that the Minister’s finding at [41] was contrary to the evidence but found that this submission invited impermissible merits review and that it was not a case where it was contended that there was no evidence for the finding: at J [41].

19    The primary judge next considered ground 2 by reference to particular (i) and ground 3 by reference to particulars (i) to (iv), which concerned the Minister’s consideration of the appellant’s membership of the OMCG. In doing so the primary judge first considered the appellant’s submission that there was no evidentiary or other basis for the Minister’s finding at [44] of her decision that the appellant knew of the OMCG’s outlaw status when he joined it: at J [45]. At J [47]-[48] the primary judge accepted that submission and, after considering the Minister’s submissions, the primary judge concluded (at J [52]) that he was satisfied that the finding that the appellant “knew of the OMCG’s status when he joined it (and thus the Minister’s concern that he had done so) did not have an evidentiary or other basis” and that the Minister erred in making that finding.

20    The primary judge then considered the appellant’s submission that: the Minister failed to adequately engage with his representations; he had not been a member of the OMCG for a number of years; he regretted joining the OMCG; and his life moved on from that point. The appellant submitted before the primary judge that if the Minister had engaged adequately with these representations, she may have come to a different conclusion in assessing the risk to the community posed by the appellant: at J [53]. The primary judge accepted the first of these submissions finding that, with the exception of one reference at [45] of her decision, there was no assertion in the Minister’s Decision that the Minister had engaged with those representations and that “mere past membership of an OMCG does not provide a rational basis for concern as to future offending”: at J [54].

21    The primary judge was thus satisfied “that these are logical errors in the Minister’s reasoning”: at J [54]. This seems to be a finding in relation to ground 3, although once again it is not expressed as such.

22    The primary judge turned to consider the two errors he had identified together noting (at J [55]) that it did not follow that the errors were jurisdictional and whether an error is jurisdictional will depend upon the nature of the error considered in the context of a decision as a whole, referring to Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33]-[35]. The primary judge reasoned as follows at J [56]-[58]:

56    In the present case, the impugned findings formed part of the Minister’s consideration of the “OMCG affiliation”, which was one of four factors considered as part of her assessment of the risk of further criminal or other serious conduct by the [appellant], the other three factors being “factors contributing to past conduct”, “remorse and rehabilitation” and “recent adverse conduct”. The conclusion reached after considering all four factors was that the Minister formed the views that she “cannot rule out the possibility that he will reoffend” (at D[52]) and that “on balance I consider there to be a reduced, albeit ongoing, likelihood that [the applicant] will reoffend” (D[53]). Those findings were open to the Minister based upon her other findings, including that:

(1)    the psychological assessment report provided to Judge Conlon (and which formed the basis of his Honour’s satisfaction that the [appellant] had reasonable prospects of rehabilitation) stated that the [appellant] required treatment that should involve cognitive behaviour therapy with a specified focus; but the information before the Minister did not indicate that the [appellant] had made firm arrangements for the type of therapy discussed in that report (at D[35] and [37]);

(2)    the [appellant] had committed serious offences previously, despite having supposedly protective factors in place such as a supportive family, his activity in his church community, good employment history and his commitment to his children (D[41]); and

(3)    the [appellant’s] involvement in violence was recurrent (at D[25]), which the Minister noted was a matter of particular concern (at D[50]).

57    Further, the Minister’s ultimate conclusion that she was not satisfied that there was another reason why the cancellation decision should be revoked (at D[114]) was open to her based upon all of the primary and other considerations. In this regard, it is noteworthy that the Minister’s expression of her conclusions at D[106] to [113] indicates that she gave significant weight to the gravity of crimes that the applicant had committed and that he had engaged in acts of family violence (at D[109] and [110]). The impugned findings have no prominence in the Minister’s weighing up of the competing considerations.

58    Thus, the impugned findings cannot be considered in any way critical, or central, to the conclusion reached by the Minister that she was not satisfied that there was another reason to revoke the cancellation decision. As Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at 221 [55], in a passage cited with approval by Charlesworth J (Flick and Perry JJ agreeing) in Muggeridge at [35(6)]:

… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; 274 ALR 487; 119 ALD 90; [2010] FCAFC 159 at [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78; [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276; [2013] FCA 566 at [66]; SZWCO at [64]–[67].

23    Lastly, the primary judge considered ground 1 and particular (iii) of ground 2 which concerned the Minister’s findings in relation to family violence at [69] and [110] of her decision. The primary judge rejected the appellant’s submissions that those findings were legally unreasonable: at J [73] and J [83]. As these findings are not the subject of a ground of appeal, it is not necessary to set out the primary judge’s reasoning in any detail.

24    The balance of these reasons address: first, the appeal; and secondly, the appellant’s application for recusal of one of the judges sitting as part of the Full Court.

THE APPEAL

25    In his notice of appeal filed on 6 December 2022 the appellant raises two grounds of appeal as follows:

1.    The learned primary judge found that the Respondent (the Minister) erred: firstly by finding that the Appellant knew of the outlaw motor cycle gang’s (OMCG) outlaw status when he joined, as there was no evidentiary basis or any other basis to make that finding (D[47],[48]&[53]); and second the Minister’s decision failed to engage with the representations made by the Appellant that he no longer had any association with the OMCG (D[53]-[54]) (altogether the Findings), however his Honour erred by then finding that the Minister’s errors were immaterial (D[56]-[58]) and by failing to address, consider and make findings on all of the claims raised by the Appellant.

Particulars

a.    The Appellant argued that the Minister erred by failing to engage in any active intellectual process in respect to parts of the evidence and submissions, namely that the Minister found that Mr Masi-Haini knew of the bikie gang’s outlaw status and involvement in criminal activity when he joined, which was a cause for concern (Minister’s decision at [44]). However, that was contrary to Mr Masi-Haini’s evidence. He said that he joined because he was having stresses in his life and was looking for acceptance and belonging. It was not until coming to prison that he realised he made a very selfish and bad mistake (altogether the First Ground).

b.    The Appellant also argued firstly that the Minister erred by making material findings in the absence of probative evidence, or engaged in illogical or irrational reasoning or the findings were legally unreasonable (Second Ground), and provided the following relevant particulars:

i.    The Minister found that although Mr Masi-Haini had ceased to be a member of the OMCG, “his past membership causes me to retain concerns about his prospects of maintaining a law abiding lifestyle in the future” Minister’s decision at [45].

ii.    The Minister did not reject any of Mr Masi-Haini’s evidence that he has had no association with OMCG for the past 8 years, and he made it clear he does not intend on rejoining them again. The Minister also acknowledged that “there is nothing to indicate that Mr Masi-Haini took part in any criminal activity as part of the Comancheros OMCG”: Minister’s decision at [44].

iii.    The mere fact of Mr Masi-Haini’s past membership provided no probative basis for finding that he might not be law abiding in the future. Also, the vagueness of that conclusion amounts to nothing more than speculation by the Minister.

iv.    In respect to the risk to the community, the Minister found that “I cannot rule out the possibility he will reoffend” (Minister’s decision at [52]) and “[o]n balance, I consider there to be a reduced, albeit ongoing, likelihood that Mr Masi-Haini will reoffend” (Minister’s decision at [53]).

v.    However, the Minister also failed to examine or make any finding in respect to the nature and circumstances of the past offending. Mr Masi-Haini committed the robberies for which he was imprisoned, under a threat to his life by the OMCG. The Court accepted that this threat was the motivation for his offences. However, the Minister failed to consider the bearing of those exceptional circumstances on the risk of reoffending, contrary to Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595.

c.    The learned primary judge’s decision reproduced at D[44]: the First Ground, and the Second Ground particulars i, ii, iii and iv, but omitted particular v above, before making the Findings.

d.    The Findings dealt with the First Ground and with the Second Ground, particulars i, ii and iii.

e.    However, the Findings failed to deal with the Second Ground, particulars iv and v above, and thereby failed to address, consider and make findings on all of the claims raised by the Appellant.

f.    If the learned primary judge had addressed, considered and made findings in respect to the Second Ground particulars iv and v, and considered the Findings in light of the omitted particulars, his Honour may have found that the errors made by the Minister were material.

2.    The learned primary judge erred in failing to find that the Minister failed to read, identify, understand and evaluate a representation of the Appellant and bring its mind to bear upon that representation. In particular, the Minister found that Mr Masi-Haini had supportive and protective factors such as good employment, a supportive family and commitment to his children when he committed the offences (Minister’s decision at [41]). However, that was contrary to Mr Masi-Haini’s evidence. He said that he had no stable job, had a major financial issue, the stress of raising a family and the split of his parents and him, during the time leading up to committing the offences for which he was imprisoned.

26    The Minister relies on an amended notice of contention which he was given leave to file at the hearing and in which the Minister contends:

1.    The learned primary judge erred in holding (at [47]-[52]) that there was no evidentiary or other basis for the finding that the appellant knew of the Outlaw Motorcycle Group’s (OMCG) outlaw status when he joined it.

2.    The learned primary judge should have held that the Minister’s finding that the appellant knew of the OMCG outlaw status when he joined it was open on the evidence before her.

3.    The learned primary judge erred in holding (at 54) that there was a logical error in the Minister’s concerns that the appellant’s past membership of a OMCG was a cause for concern about his prospects of maintaining a law-abiding lifestyle in the future.

4.    The learned primary judge should have held that the Minister’s findings with respect to the appellant’s prospects of future offending were open on the evidence before her.

5.    The learned primary judge should have held that the correct approach to determining error based on unreasonableness or illogicality was whether the Minister’s state of satisfaction was one which no rational decision-maker could reach on the material before the Minister.

(Underlining omitted.)

Ground 1

27    By ground 1, the appellant contends that the primary judge was correct to find that:

(1)    the Minister erred in finding that the appellant knew of the OMCG’s outlaw status when he joined it as there was no evidentiary or other basis to make that finding (error 1); and

(2)    the Minister’s Decision failed to engage with his representations that he no longer had any association with the OMCG in assessing the risk to the community (error 2),

but that his Honour erred in failing to find that these errors were material and in failing to consider particulars (iv) and (v) to ground 2 of the application for judicial review, which failure also impacted on the finding of materiality.

28    The Minister’s amended notice of contention concerns ground 1 of the appeal. It raises for consideration whether the primary judge erred in making the findings referred to at [27(1)] and [27(2)] above and, if his Honour did not err as contended by the Minister, whether the primary judge should have held that the correct approach was to determine whether the Minister’s state of satisfaction was rationally open on the material before her.

29    In light of those issues it is convenient first to address the Minister’s amended notice of contention insofar as it contends that the primary judge erred in making the error 1 and error 2 findings.

Error 1

30    At [44] of the Minister’s Decision, which is set out above, the Minister found that the appellant knew of the OMCG’s “outlaw status and criminal activity when he joined”. Although an express finding in those terms is not set out, we think that finding was made: the Minister described that conclusion as being supported by an identified piece of evidence, and went on to say that the appellant’s decision to join “such an organisation” was “of concern”.

31    This was one of the findings attacked by ground 2 in the originating application, which we have also set out above. That ground is, with respect, far from clear. Phrases describing different categories of error were assembled in the same sentence, in a way that is somewhat confusing, followed by lengthy “particulars” referring to different aspects of the Minister’s Decision where some subset or combination of these errors was alleged to have occurred (of which the relevant one here is (i)). The complaint in the chapeau of ground 2 appears to have been about the Minister “failing to engage in any active intellectual process”, which is said to have led to other errors. Whatever occurred at [44] of the Minister’s Decision, it was not the absence of an active intellectual process. Possibly, this aspect of ground 2 should have been rejected for that reason.

32    However, the submission ultimately made, as recorded by the primary judge, was that there was “no evidentiary or other basis for the finding, at D[44], that the [appellant] knew of the OMCG’s outlaw status when he joined it”. His Honour dealt with the submission in those terms. Neither party has sought to put before us the submissions that were filed below, and we therefore proceed on the basis that the primary judge’s summation was correct.

33    His Honour accepted the submission. At J [47]-[48] he said:

47    I accept the applicant’s submission that there was no evidentiary or other basis for the finding that the applicant knew of the OMCG’s outlaw status when he joined it. The evidence cited by the Minister in D[44] for that finding was the representation made by the applicant that “joining this club was the apex of my decline as a moral member of society”. That evidence forms part of the following representation made by the applicant:

According to criteria 2, stated that my visa may be cancelled and that I would fail the “Character Test” should I have an association with an individual, group or organisation which is suspected of being involved in criminal conduct. Before coming to prison and in the time leading to committing the offence, I was not in a very pleasant place in my life. I had a major financial issue and stresses of raising a family with no stable job. This lead to me suffering a sense of neglect and separation from my family which not only impacted me but my family as well. Going through this tough time in my life, I naturally sought a sense of acceptance and belonging and so I joined the Commanchero (sic) Bike Club where I found what I thought I was seeking. It was until (sic) coming to prison when I realised the decision I made was a very selfish and bad mistake that I have done to hurt and harm the family that I loved. And that I was looking for was with my family and kids and that joining this club was the apex of my decline as a moral member of society and as a father to my children. My prison record could support my claim of non-association with these people as not once in the past 6 years in prison I received any visits or contact from any of these people and I’m happy to say that I am free of any association with them any longer. (emphasis added)

48    There is no evidentiary basis in this representation for the finding that the applicant knew of the OMCG’s outlaw status when he joined it. Indeed, it is clear from the representation that the realisation that “joining this club was the apex of my decline as a moral member of society” occurred when he went to prison. As noted above, the Minister found that the applicant joined the OMCG in 2011, and that he was imprisoned in July 2015.

34    We agree with his Honour’s analysis of the evidence that was cited by the Minister. Contrary to what was said at [44] of the Minister’s Decision, the statement to which the Minister referred did not logically support the finding that she purported to draw from it. That paragraph contained a clear error in fact finding.

35    However, the conclusion stated by the primary judge in the first sentence of J [47], that there was no evidence or other material to support the finding (and which his Honour stated again at J [52]), goes further. We respectfully disagree with this conclusion. In this regard, we agree with the submission advanced by the Minister in support of grounds 1 and 2 of the amended notice of contention.

36    The Minister contends that the primary judge erred in reaching his conclusion and that there was evidence to support the Minister’s finding. As was the case before the primary judge, the Minister submitted that there was a range of material that supported the finding, namely:

(1)    the appellant’s letters to the Minister;

(2)    the evidence referred to by the sentencing judge that members of the appellant’s extended family were also part of the OMCG;

(3)    the evidence of the intercepted telephone call which was recorded in April 2014 and which suggested that the appellant had been engaged in criminal activities on behalf of the OMCG at that time; and

(4)    the absence of any denial from the appellant of knowledge of the OMCG’s “notorious reputation for criminal activity”.

37    It is important to bear in mind that, in administrative decision-making, the nature of the material that can be relied upon in reaching a decision is not as strict as in a proceeding before a court; and, indeed, inferences may be drawn from an absence of evidence. Relevantly in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [33]-[34] Basten JA (with whom McColl and Whealy JJA agreed) said:

33    The respondent relied upon the discussion of the “no evidence” ground, under the general law, in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356. Mason CJ noted that there was “no error of law simply in making a wrong finding of fact” - referring to Waterford v The Commonwealth [1987] HCA 25; 163 CLR 54 at 77 (Brennan J); noting that “want of logic is not synonymous with error of law”, he continued:

“So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”

34    Four points of caution should be made. First, this passage indicates that the “no evidence” ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term “no evidence”, as an administrative decision-maker is usually entitled to take into account material which would not count as “evidence” in a judicial context. In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a “no evidence” ground of review.

38    We turn to consider the material relied on by the Minister.

39    The appellant wrote two letters to the Minister which she treated as submissions. The first letter contained the statement quoted in the reasons of the primary judge at J [47], which we have set out above.

40    The second letter was written in response to what the appellant referred to as the “Natural Justice Letter”. In that letter, under the heading “Association with an individual, group or organisation”, the appellant wrote:

Before coming to prison and in the time leading to committing the offence, I was not in a very pleasant place in my life. I had major financial issues and stresses of raising a young family with no stable job.

This lead to me suffering a sense of neglect and separation from my family.

Going through this tough time in my life, I naturally sought a sense of acceptance and belonging, so I looked to join the Commanchero Bike Club where I found what I thought I was seeking.

I believed growing up, watching movies, TV shows that this was a social group for brotherhood. Growing up with only sisters, and no brothers, I always longed for a brother connection, this need for acceptance, man hood and love lead me down a path in which I thought was a group were we rode motorbikes and drank alcohol on the weekends.

I was quick to realise that the decision I made was very selfish and a huge life affecting mistake that I have done to hurt myself and the family I loved, and what I was looking for was my family and kids and that joining this club was the apex of my decline as a moral member of society and as a father to my children.

My prison record supports my claim of non-association with these people as not once in the past 8 years I received any visits, or contact, nor association or connection from those people. I am happy to say that I am free of any association for 5 years now.

It is not hidden knowledge that I officially left the outlaw motorcycle group in October 2016. I have no ties with them, and no connection. The group allowed me to leave officially and freely with nothing further.

I was encouraged not to return. I have no contact, no tattoos, no friends, no phone contacts, no social media, and no family connected to this or any other motor cycle gang or group.

41    While these aspects of the two letters have a number of similarities, they also differ in some respects. In particular, in the second letter, the appellant stated that he “was quick to realise that the decision [he] made was very selfish and a huge life affecting mistake”. That is, the second letter, in contrast to the first, suggests that the appellant knew at the time (or at least shortly after) he joined the OMCG of the nature of that organisation.

42    In assessing this material it was open to the Minister to proceed on the basis that most people joining an organisation have some idea of what the organisation is and does. The appellant made considered representations to the Minister but did not say that he joined the OMCG under a misapprehension. The Minister’s finding at [44] thus reflected what would for many decision-makers be a baseline assumption, not put in issue here by anything the appellant had said.

43    Further, material before the Minister indicated that the appellant was around 23 years old when he joined the OMCG, had been involved sporadically in criminal activity for some years before that, and had served a short prison term. It was safe to infer that he had not led such a sheltered life as to be likely to be ignorant about the nature of OMCGs. There was also information (referred to by the sentencing judge) that two of the appellant’s relatives had been involved in the same gang, albeit somewhat unspecific as to time. A court, bound by the rules of evidence, might well not make any finding about the appellant’s state of knowledge on the basis of this material. However, for the reasons explained in L & B Linings, it was open to the Minister as an administrative decision-maker to rely on inferences from the material and on the absence of any contrary statement by the appellant.

44    For these reasons, if the ground advanced before the primary judge was a “no evidence” point, as we understand it to have been, his Honour erred in accepting that the alleged error was made out. As has been said many times, an insufficiency of evidence or other material does not sustain a “no evidence” finding: see e.g. Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [118]. This makes it unnecessary to consider whether, as the appellant alleges, his Honour erred by finding that the error was “immaterial”.

45    In ground 1 of his notice of appeal, which is set out above, the appellant (accurately) describes the primary judge as having found that the Minister erred “by finding that the [appellant] knew of the [OMCG’s] outlaw status when he joined, as there was no evidentiary basis or any other basis to make that finding”. It goes on to allege that his Honour erred by “finding that the Minister’s errors were immaterial” (a point to which we return below). Particular (b) to ground 1 describes the argument advanced before his Honour as “firstly that the Minister erred by making material findings in the absence of probative evidence, or engaged in illogical or irrational reasoning or the findings were legally unreasonable”. This aggregation of three types of error does not reflect the argument in relation to [44] of the Minister’s Decision as described and accepted by his Honour, or the terms of ground 2 in the originating application. The written submissions filed for the appellant describe the “correct” finding of the primary judge in the same way as ground 1 (i.e. of a finding not supported by probative evidence), and moves directly to the issue of materiality.

46    Before us, counsel for the appellant sought to put the point as one of illogical reasoning rather than “no evidence”. That does not reflect the terms of the originating application, the primary judge’s finding or the notice of appeal. This recalibration of the argument (evidently intended to outflank the Minister’s amended notice of contention) occurred at the hearing and did not prompt any application to amend the notice of appeal. Instead, counsel maintained (incorrectly in our view) that this had been the argument all along. In our view it requires an amendment, because it involves a proposition that the primary judge should have made a finding (i.e. as to illogical reasoning) that he did not make. Absent an amendment, grounds 1 and 2 of the amended notice of contention are a complete answer to ground 1(a) of the appeal.

47    We have nevertheless considered what would follow from the conclusion, with which we expressed agreement above, that the Minister’s reasons at [44] of the Minister’s Decision include a faulty (or “illogical”) step in fact-finding. To be clear, in our view, it was open to the Minister on the material to make the finding that she made; but the way that she in fact reached the finding involved a misunderstanding of the effect of the piece of evidence that she relied on.

48    It should be noted, first, that (contrary to the appellant’s submissions) the primary judge did not rely on the concept of materiality as expounded in cases such as MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 and Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737, which involves consideration of whether, in the event that the identified error had not occurred, there was a realistic possibility of a different outcome. His Honour did not refer to any of the authorities concerning that concept. Rather, his Honour referred (at J [55]) to the reasons of this Court in Djokovic at [33]-[35] and then proceeded to apply what was said in that case.

49    In Djokovic, the Court was concerned with explaining the kinds of circumstances in which a decision or a state of satisfaction will be held to be “legally unreasonable because of illogicality or irrationality”. In that case, as here, the complaints of illogicality or irrationality were directed to “identifiable errors”, including a lack of evidence on which to found central conclusions and “illogical or irrational reasoning” (at [31]). The specific complaints were rejected, but the general statements by the Court are carefully considered and, in our view, are to be given great weight. They were not said to be wrong.

50    Referring to a number of earlier cases, the Court observed at [33] that “the characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made”. At [35], the Court framed the ultimate question as:

… whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences supported by logical grounds, such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

(Citations omitted and emphasis added.)

51    The phrase “irrational, illogical or not based on findings or inferences supported by logical grounds” can be traced back to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [38] (Gummow and Hayne JJ), which the Court cited. The framing of the ultimate issue in terms of whether the state of satisfaction could have been reached logically echoes the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131], [135], which this Court in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 regarded as constituting the majority reasoning in that case.

52    If a decision or state of satisfaction is not infected by illogicality or irrationality in the sense discussed in Djokovic (so as to be, as the Court put it, “unjust, arbitrary or capricious”), no relevant error is made out and questions of materiality, in the MZAPC sense, do not arise. On the other hand, if the decision or state of satisfaction is found to be so infected, a conclusion of materiality is implicit in that conclusion and no further threshold needs to be met: MZAPC at [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The MZAPC line of authority is thus irrelevant.

53    Applying Djokovic (which was not said to be wrong), the primary judge found as follows (at J [56]-[58]):

(1)    the finding at [44] of the Minister’s Decision, and other impugned findings, formed part of the Minister’s consideration of “OMCG affiliation” which led, with other findings, to a conclusion that “on balance I consider there to be a reduced, albeit ongoing, likelihood that [the appellant] will reoffend”. This conclusion was open to the Minister based on other findings that she made;

(2)    the impugned findings had no prominence in the Minister’s weighing up of the competing considerations, in which significant weight was given to the gravity of the appellant’s offending and findings that he had engaged in family violence. The Minister’s ultimate conclusion that she was not satisfied that there was “another reason” to revoke the visa cancellation was open to her based on all the primary and other considerations; and

(3)    the impugned findings were not critical or central to the Minister’s conclusion.

54    In making the last of these points his Honour referred to a statement by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at 221 [55], which was approved in Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Charlesworth J, with whom Flick and Perry JJ agreed), to the effect that illogical reasoning will not go to jurisdiction “if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result”. To the extent that this approach envisages irrationality in the course of making a particular finding of fact as potentially going to jurisdiction, subject to that fact being “critical”, it may represent a different approach to the present issue from the one formulated in Djokovic (cf SZMDS at [53] (Gummow ACJ and Kiefel J) and Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43] (Gordon J)). However, the controversy, if there is one, need not be resolved for present purposes. The impugned finding at [44] of the Minister’s Decision was open to the Minister, and was not on any view “critical” to her decision. It was part of a matrix of facts leading to the cautiously-expressed conclusion at [51]-[53] concerning the risk of further offending which, in turn, was weighed with other relevant factors. The error was a simple lapse in analysing the evidence which has not been shown to have caused a wrong factual finding, let alone a decision that was beyond power.

55    The primary judge therefore did not err by finding that the logical flaw in [44] of the Minister’s Decision did not go to jurisdiction.

Error 2

56    Error 2, as we understand it, is alleged by the closing words of ground 1 in the notice of appeal:

… failing to address, consider and make findings on all of the claims raised by the appellant.

57    Close study of the “particulars” is necessary to isolate this alleged error. The first point to note is that ground 1 as a whole is directed at the primary judge’s conclusions at J [47]-[54] (termed “the Findings”). Underneath particular (b) to ground 1, there are set out the particulars to ground 3 in the originating application. (Distractingly, particular (v) of the originating application is omitted, so that what was particular (vi) in the originating application is now numbered (v) in the notice of appeal. In what follows we retain the original numbering.) It is then noted that the primary judge at J [44] set out particulars (i) to (iv) to ground 3, but not particular (vi). It is then alleged that the Findings dealt only with particulars (i) to (iii), and not (iv) and (vi).

58    The first point to note is that, apart from its lack of clarity, a ground stated in these terms does not advance the appellant’s position unless it is also established that the argument which was not dealt with was a winning argument. The duty of an appellate court is to decide whether the judgment below was correct, if the material before it is sufficient to do so.

59    The next point to note is that the part of the primary judge’s reasons referred to as “the Findings”, introduced by J [44], was concerned only with issues relating to OMCG affiliation. Particulars (iv), (v) and (vi) to ground 3 of the originating application dealt with other topics:

(1)    particular (iv) attacked the Minister’s overall finding that there was some risk that the appellant would re-offend;

(2)    particular (v) (the fate of which does not seem to be the subject of any complaint on appeal) alleged that the Minister failed to make a finding about whether the appellant would engage in family violence again; and

(3)    particular (vi) asserted that the Minister failed to consider the nature and circumstances of the appellant’s past offending, citing Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595.

There was no reason to deal with these allegations in “the Findings”.

60    However, the particulars to ground 3 of the originating application that were not addressed in connection with the appellant’s OMCG membership do not appear to have been canvassed elsewhere in the primary judge’s reasons. We assume that they were pressed in argument before his Honour. The assertion that they were not dealt with therefore appears to be correct. However, as noted above, it is necessary to consider whether they have merit.

61    The appellant’s submissions in the appeal were limited to the point contained in particular (vi) to ground 3 below. The attack was directed at [51]-[53] of the Minister’s Decision, which are set out at [14] above. Here, relevantly, the Minister concluded: “I cannot rule out the possibility that he will re-offend” and “I consider there to be a reduced, albeit ongoing, likelihood that [the appellant] will re-offend”. The criticism that is made of these conclusions is that the Minister treated past offending, without more, as establishing a risk of future offending, and thus did not have a probative basis for the conclusions. Reliance was placed on Splendido at [77]-[78], where Mortimer J (as her Honour then was, and with whom Moshinsky J agreed) said:

77    The bare recitation of what a person has done in the past, if used as a basis for a positive finding about what she or he may do in the future, is a reasoning process which is rejected by the judicial process in relation to fact-finding about legal responsibility for past events. More than the bare recitation of the past offending is required, and what is required for such evidence to be considered is strictly controlled by reference to the nature and circumstances of the offending, as Hughes and the authorities before it demonstrate. In the sentencing context, or in a context of any further exercise of power to detain a person, where a court is required to address a person’s risk of re-offending in the future, the complexity of that analytical process and the difficulty of judges undertaking that task themselves is judicially acknowledged, as the observations in RJE demonstrate.

78    The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending. In these processes, a court acts on more than the bare historical fact of when and where a person committed offences and the legal description of those offences. Otherwise, the prejudicial and impermissible kind of reasoning to which Gageler J referred in Hughes is what can dominate any reasoning process.

62    The impugned passages in the Minister’s Decision need to be read in the context of what comes before and after them:

(1)    at [29]-[30] the Minister referred to the appellant’s description of his upbringing and what a sentencing judge in 2008 had said on that issue;

(2)    at [31] the Minister said that she had taken into account the appellant’s submission that he was suffering major financial stress in the period leading up to his most recent offending;

(3)    at [32]-[33] the Minister noted evidence, accepted by the Court, concerning the background to that offending: the appellant had been contracted by the OMCG to which he formerly belonged to carry out a roofing job and had been paid $28,000 to purchase materials; but he had lent the money to his father and could not get it back; and he had carried out the robberies in an attempt to get the money he needed so that he could meet the OMCG’s deadline, failing which he would be shot. The Minister also noted a psychologist’s report that said the appellant was under “significant emotional duress” at the time of the offending;

(4)    at [34]-[38] the Minister discussed the appellant’s efforts at rehabilitation. Those efforts were real, but he had not made arrangements for the form of therapy that had been recommended in a psychologist’s report presented to the sentencing court;

(5)    at [40]-[41] the Minister noted that the appellant would have a supportive network of family and friends if he were released into the community, but that he appeared also to have had that network at the time of his offending (i.e. that support did not prevent him from offending);

(6)    at [42]-[45] the Minister considered the appellant’s membership of the OMCG, which had ceased but (in the Minister’s view) gave rise to concerns about “his prospects of maintaining a law abiding lifestyle in future”; and

(7)    at [46]-[50] the Minister noted that the appellant had also been convicted of possessing a mobile phone while in custody, and what she regarded as unresolved issues concerning allegations of intimidation and assault made against the appellant while in immigration detention.

63    All of these points were relevant to the issue of risk to the community, and the conclusion that the Minister expressed on this issue did not by any means suggest that the risk of the appellant re-offending was high. In her final weighing of the issues (at [109]) the Minister gave prominence to the seriousness of the appellant’s offending rather than the degree of likelihood that it would be repeated. The reasoning on this issue did not involve an error of the kind discussed in Splendido.

Conclusion

64    The Minister has made out grounds 1, 2 and 4 of the amended notice of contention. Ground 1 of the appeal should be dismissed.

Ground 2

65    By ground 2 the appellant contends that the primary judge erred in failing to find that the Minister failed to read, understand and evaluate and bring her mind to bear on representations that he made as to his support and his protective factors at the time he committed the offences. The appellant said this impugned the finding made by the Minister at [41] (see [13] above).

66    The appellant submitted that, while the Minister has decisional freedom under the discretionary power conferred by s 501CA(4) of the Act, the Minister must first understand the purport of representations and their possible significance. The appellant contended that the Minister may err if he or she proceeds without a proper awareness and understanding of what was put forward and therefore without a proper appreciation of the matters that might bear upon the decision. The appellant submitted that without a proper appreciation of the matters that might bear upon the decision to be made, the Minister will not be in a position to “sift” through what has been put to him or her and attribute the weight considered appropriate to various matters.

67    The appellant submitted that the Minister’s finding at [41] wrongly assumed that the protective factors were in place leading up to the time that he committed the robberies and yet he still offended when, in fact, his evidence was that he did not have protective factors operating throughout his life and, in particular, they did not operate at the time of his offending. He said that his evidence was that destructive factors were operating at that time, those factors were critical in triggering him to commit the offence and those representations needed to be taken into account.

68    The appellant submitted that it was not a question of whether the Minister was aware of the relevant submissions and evidence but whether the Minister had a proper appreciation of how they might bear upon the assessment of risk and grappled with them in the course of making findings.

69    The appellant relies on the following evidence (collectively, Representations) which he says sets out the operative factors:

(1)    that “[b]efore coming to prison and in the time leading to committing the offence, I was not in a very pleasant place in my life. I had major financial issues and stresses of raising a young family with no stable job”;

(2)    that this led to the appellant “suffering a sense of neglect and separation from [his] family”;

(3)    that the appellant “was undergoing some serious financial and family stresses at the time of [his] offence. These problems carried on to the earlier times [he] was in prison and had subsequently lead (sic) to the split” with his parents;

(4)    that the appellant “has since been employed as a roof plumber, initially employed by his father but self-employed as a roof plumber since 2009. …he had considerable financial problems owing to a downturn in business opportunities brought about by a significant competition in his field of employment”; and

(5)    that “[h]e explained that his father needed a loan and that he gave him some of that money. He said that following the completion of the first stage of the roofing he was unable to get the money back that he loaned to his father. He said he was given a deadline to get the money back and to complete the job, otherwise they would shoot him. He said he committed the robberies in an attempt to make up the money he needed”.

70    In considering whether there is another reason for revoking a cancellation decision, the Minister must undertake an “assessment by reference to the case made by the former visa holder by their representations”. Further a decision-maker must read, identify, understand and evaluate the representations made: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) ALJR 497 at [22], [24]. At [26] the High Court said:

Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

(Footnotes omitted.)

71    There is no error in the primary judge’s reasons at J [37]-[41] where his Honour considered the appellant’s ground of review insofar as it concerned the Minister’s finding at [41] of her decision.

72    The appellant’s evidence and submissions were set out in a number of places, including a statement dated 1 April 2020 and the two letters referred to above as well as in the District Court sentencing remarks. The Minister referred expressly to some of the Representations relied on by the appellant in her reasons or their effect: at [31]-[32] and [40]. A review of the Minister’s reasons, including her finding at [41], does not suggest that she ignored, overlooked or misunderstood any of the Representations or that she failed to engage with them.

73    As the Minister submitted, and as the primary judge found, the objective protective factors which the Minister found to be in place based on the evidence and material before her, were not negated by the appellant’s claim that he was experiencing major financial stress while trying to raise his family (a matter that was expressly referred to) and a sense of neglect and separation from his family.

74    Ground 2 of the appeal should be dismissed.

Conclusion

75    It follows from the above that grounds 1, 2 and 4 of the Minister’s amended notice of contention should be upheld and the appeal should be dismissed with costs.

RECUSAL APPLICATION

76    On 2 May 2023 counsel for the appellant wrote to the Associate to Kennett J foreshadowing an application that his Honour recuse himself from hearing the appeal proceeding.

77    Later that day, adopting the procedure set out in McKenzie v Cash Converters International Ltd (No 3) [2019] FCA 10 at [6], counsel for the parties attended on Kennett J in chambers and informed his Honour that the appellant may file an application seeking his Honour’s disqualification from hearing the appeal.

78    The following day the appellant filed his application seeking an order that Kennett J recuse himself on the basis of apprehended bias (Recusal Application) and an affidavit in support affirmed by the solicitor for the appellant. The appellant’s application arose from the fact, among others, that his Honour appeared as senior counsel for the Minister in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13.

79    The appellant and the Minister provided submissions on the Recusal Application. His Honour determined the application on the papers and on 8 May 2023, at the commencement of the hearing of the appeal, made orders that the Recusal Application be dismissed and that there be no order as to costs of that application: see Masi-Haini v Minister for Home Affairs [2023] FCA 430 (Masi-Haini Recusal).

80    In his reasons, Kennett J noted that two questions arose.

81    The first was whether the Recusal Application should be dealt with by his Honour or the Court, as constituted to hear the appeal: Masi-Haini Recusal at [3].

82    At the time the appellant made his application, the High Court of Australia was reserved in an appeal between QYFM as appellant and the Minister as respondent in which one of the questions raised was the appropriateness of the then prevailing practice that, in the context of an appeal, an application for recusal be determined by the individual judge to whom the application relates. Both the appellant and the Minister opposed an adjournment of the hearing of this appeal to await the High Court’s decision. Accordingly, his Honour decided to follow the usual Australian practice and to determine the Recusal Application himself: see Masi-Haini Recusal at [6]-[7].

83    The second was whether the circumstances raised by the appellant were such as to give rise to an apprehension of bias. At [11] of Masi-Haini Recusal his Honour described those circumstances as follows:

(a)    In 2021 I appeared as senior counsel for the appellant Minister in [Viane]. Ms Francois, who appears for the Minister in the present case, appeared as my junior. In that proceeding we advanced written and oral submissions on the circumstances in which a factual finding by an administrative decision-maker, which does not have a rational foundation in the material before them, should be regarded as vitiating a state of satisfaction reached by the decision-maker. This issue was not addressed in the reasons of the Justices in Viane, as the Minister succeeded on other grounds.

(b)    A very similar issue potentially arises in the present appeal, in the light of the findings of the primary judge at Masi-Haini v Minister for Home Affairs [2022] FCA 1326 at [46]–[58].

(c)    In addressing this issue in written submissions, Ms Francois has (understandably) borrowed from the written submissions of the Minister in Viane. Two paragraphs of the Minister’s written submissions in this appeal are almost identical to paragraphs of the submissions filed in Viane.

(d)    As articulated in the appellant’s submissions, the concern arises from the content of the submissions made in Viane and not from my former professional relationship with Ms Francois (although the latter point was raised as a reason why the question of apprehended bias should not be decided by me alone).

84    His Honour then set out the relevant principles in relation to an apprehension of bias and concluded that the circumstances relied on by the appellant were not sufficient to lead to a conclusion that a fair minded lay observer might reasonably apprehend that he might not bring an impartial mind to the determination of the issues in the appeal: see Masi-Haini Recusal at [12]-[16].

85    After Kennett J made the orders dismissing the Recusal Application and published his reasons for doing so, the hearing of the appeal proceeded before the Full Court. The appellant did not renew the Recusal Application to the Full Court at that time.

86    At the conclusion of the hearing, the Full Court reserved its decision on the appeal.

87    On 17 May 2023 while the Full Court was reserved, the High Court delivered judgment in QYFM v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15.

88    On the same day the solicitors for the appellant sent an email to the Court in the following terms:

We draw to your attention the judgment in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, https://eresources.hcourt.gov.au/showCase/2023/HCA/15 which was handed down by the High Court today. In particular, we note the following paragraphs: [4], [33]-[35] per Kiefel CJ & Gageler J; [94], [100] per Gordon J; and [190]-[191] per Edelman J.

89    The solicitors for the Minister responded to the email referred to in the preceding paragraph in the following terms:

We write in response to the below correspondence sent on behalf of the appellant.

For the avoidance of doubt, that correspondence was regrettably sent without the Minister’s consent having been sought, or given, as to either the sending of the email or its contents. The references to “we” in that email should, accordingly, be read as referring to the appellant and paragraphs that the appellant seemingly wishes to draw to their Honours’ attention. The Minister is unaware of the basis for this correspondence in circumstances where judgment is reserved in this matter and no leave has been sought, let alone given, to lodge any further material.

90    As the appellant had brought the decision in QYFM to the Court’s attention, the Court invited the parties to provide submissions addressing the effect of the decision in QYFM. Both the appellant and the Minister filed written submissions in answer to that invitation.

91    In his additional submissions, the appellant noted that he was “in the unusual position of considering the impact of QYFM after the determination of the [Recusal Application] but before” the appeal had been determined. He noted that he only pressed his additional submissions if this Court was inclined to dismiss the appeal in which case he would ask that the submissions be considered to support an order that “the Court relist the proceedings before a differently constituted Full bench to avoid apprehended bias tainting the decision”. The appellant wishes to “have a bet each way”. That is, the appellant seeks to renew his application for recusal of Kennett J on the basis of apprehended bias to the Full Court including by reference to the decision in QYFM, but only if he is unsuccessful on the appeal, which is the case.

92    The appellant’s additional submissions address the two issues considered in QYFM: first, the question of who should hear a recusal application when made to a judge sitting as part of an appellate bench; and secondly, the question of whether the judge the subject of the application in that case should have in fact recused himself.

93    As to the first issue, the appellant submitted that Masi-Haini Recusal is contrary to the majority’s findings because Kennett J decided the Recusal Application alone, the Court is bound to follow the majority in QYFM in relation to this issue and that the Recusal Application should have been considered and determined by the Full Court.

94    In QYFM the justices of the High Court considered the second issue identified above to be dispositive of the case. Notwithstanding that, their Honours’ reasons in relation to the first issue identified above, while not forming part of the ratio of the case, are “seriously considered obiter dicta”: see QYFM at [110] (Edelman J).

95    On that issue, a majority of the High Court considered that where objection is made to the jurisdiction of a multi member court on the basis of apprehended bias, the preferable course is for the judge in question first to be given the opportunity to determine for him or herself whether they will recuse themselves. Thereafter if the judge decides not to recuse themselves after having provided notice to the other judges of the material facts or circumstances and an application based on apprehended bias is maintained, or the other judges are concerned there are matters that may give rise to a potential for apprehended bias, the Full Court will need to determine the issue: see QYFM at [94]-[100] (Gordon J), [108], [131]-[135] (Edelman J) and [193] (Steward J).

96    Chief Justice Kiefel and Gageler J (at [26]-[35]) considered that an objection to jurisdiction on the grounds of apprehended bias should be considered by all members of the court and not the judge the subject of the application alone, Gleeson J (at [271]) expressed no view on the question of procedure and Jagot J (at [316]-[317]) considered that the convention that an application should be determined by the judge the subject of it alone remains correct.

97    In this case, the Recusal Application when first made was considered by the judge the subject of it alone, as the majority of the judges who considered the procedural issue in QYFM said it should be. As observed above, at the time that Kennett J made orders refusing the Recusal Application, no application was made to the Full Court to consider the application. Nor did the other members of the Full Court express any concerns. In any event, having had the opportunity to read the reasons in Masi-Haini Recusal and the initial submissions relied on by the parties in relation to the Recusal Application, Markovic and Meagher JJ agree with those reasons.

98    We turn to consider the additional submissions by which the appellant renews his objection to the Full Court.

99    As to the second issue identified by the appellant, which was dispositive of the appeal in QYFM, the High Court by majority found that there was a reasonable apprehension of bias in circumstances where a member of a Full Court in a migration appeal concerning the question of revocation of a visa cancellation decision had appeared for the Crown at the appeal from the conviction which formed the basis of the original visa cancellation decision. The appellant submitted that, while the facts in QYFM are different, they are analogous and the principles relied on by the majority of the High Court apply here.

100    There was no dispute about the principles to be applied. They were succinctly stated in Masi-Haini Recusal at [12]. In short, the criterion is whether a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: see QYFM at [37]. The “double might” shows that the criterion is concerned with “possibility (real and not remote), not probability”: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7].

101    The appellant drew attention to aspects of the principles set out in QYFM concerning the characteristics of the fair-minded lay observer, for example that the lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”: see QYFM at [48] (Kiefel CJ and Gageler J); and that “[t]he observer would understand that the appellant’s appeal to the Full Court was the last check on the power and obligation of the Commonwealth Executive under the [Act] to remove him from Australia as a consequence of his visa cancellation”: see QYFM at [84] (Gordon J). Those statements of principle, and others like them, were referred to in the context of the facts as presented in QYFM. As Kiefel CJ and Gageler J observed at [50]:

Though the lesson of Ebner is that each case must be considered by reference to the totality of its own circumstances, the combination of such considerations makes likely the conclusion that a fair-minded lay observer might reasonably apprehend that a judge who has been involved as an advocate in the prosecution of an individual in the past might have developed in that role, and might be unable completely to discard, a mind-set that is unfavourable to the individual to a degree incompatible with the dispassionate resolution of such question as the judge may be called on to decide in a subsequent case to which that individual is a party. The conclusion is even more likely where the earlier prosecution is in some way connected with the case before the court.

102    The appellant submitted in his additional submissions that the apprehension of bias arises from the fact that arguments raised by the Minister in this appeal correspond with those propounded on the Minister’s behalf in Viane.

103    The appellant submitted that the context of Kennett J’s relationship with his former client included: that his Honour acted for the Minister in multiple migration matters over many years; and that his Honour propounded the same legal argument that is the subject of this proceeding on behalf of the Minister in more than one case. The appellant contended that a fair-minded lay observer is highly likely to draw an inference that: Kennett J, while senior counsel, would have crafted the legal argument or at least been involved in the advising of advancing it on behalf of the Minister; and, it is to be inferred, that in advising the Minister, his Honour would have expressed views, or at least been involved in, and been privy to the strategy adopted in pursuing the same argument over a number of proceedings. The appellant said that consequently the Minister has the benefit of Kennett SC’s opinion and advice (as his Honour then was) but he does not and his Honour is unable to inform the appellant of the content of the advice. The appellant submitted that a fair-minded lay observer could conclude that Kennett SC is likely to have formed views, potentially strong views, on a central legal issue that arises in the present proceeding and they were views formed in the context of being briefed to devise arguments and strategies that represent the interests of the Minister against an appellant similar to the appellant.

104    This case must be considered by reference to the totality of circumstances relevant to it. In contrast to the position in QYFM, Kennett J was not “involved as an advocate” in the prosecution of the appellant. His Honour did not appear as advocate against the appellant. He was not an adversary of the appellant in the same or related proceedings such that he could “be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect the interests of that other person”: see QYFM at [44]. Rather, his Honour appeared as senior counsel with Ms Francois (who appears for the Minister in this appeal) as his junior in Viane, a case which involved a different appellant. No analogy between the facts in QYFM and in this case can be drawn.

105    In any event, as identified in Masi-Haini Recusal at [14] the fair-minded lay observer should be taken to understand the role of counsel in a contested hearing, including that counsel puts the best arguments that can be properly made in support of their client’s case: see Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 at 230 (Merkel J). Further a fair-minded lay observer would be taken to understand that counsel need only take the view that a submission is reasonably arguable before it is put and, given his or her role as advocate, a submission says nothing about counsel’s own views.

106    The appellant’s additional submissions are largely speculative. The objective circumstances do not permit the inferences urged to be drawn. The only known circumstance is that in his Honour’s former role, he appeared as advocate and propounded a submission which was arguable in a case which did not concern this appellant. The appellant’s additional submissions do not take the matter any further. For the reasons already given in Masi-Haini Recusal we are not satisfied that any apprehension of bias arises from the circumstances relied on by the appellant.

Conclusion

107    To the extent it has been renewed the appellant’s application that Kennett J recuse himself fails and should be dismissed.

DISPOSITION

108    Grounds 1, 2 and 4 of the Minister’s amended notice of contention should be upheld and the appeal should be dismissed with costs.

109    The appellant’s further application for recusal should be dismissed with costs.

110    We will make orders accordingly.

Associate:

Dated:    9 August 2023