Federal Court of Australia

Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The notice of contention be dismissed.

3.    The orders of the primary judge made on 27 May 2025 be set aside and in lieu thereof it be ordered that the originating application be dismissed.

4.    By 5.00pm AEDT on 23 March 2026 the respondent is to file and serve written submissions on costs of no more than 5 pages, together with any evidence on which he wishes to rely.

5.    By 5.00pm AEST on 6 April 2026 the appellant is to file and serve written submissions in response of no more than 5 pages, together with any evidence on which he wishes to rely.

6.    By 5.00pm AEST on 13 April 2026 the respondent is to file and serve any written submissions in reply (of no more than 2 pages).

7.    The issue of costs will be dealt with on the papers.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    I agree with Kennett J that the appeal must be allowed with costs, and as part of that, the respondent’s notice of contention alleging apprehended bias dismissed, for the reasons his Honour gives.  I also agree with the additional observations and conclusions of Thawley J.

Associate:

Dated:    9 March 2026

REASONS FOR JUDGMENT

THAWLEY J:

2    The central question in this appeal is whether s 501BA(2) of the Migration Act 1958 (Cth) confers a power that is silently extinguished if not exercised within a “reasonable time” after the occurrence of the event which enlivens the power. The answer is that it does not.

The distinction between the existence of a power and the legality of its exercise

3    Where it is contended that a statutory power has been exercised in breach of an express or implied statutory condition, it is necessary to distinguish between: (a) jurisdiction: a condition that affects the existence of the power such that the power no longer exists; and (b) legality: a condition that operates as a constraint on the exercise of the power, but does not affect its existence.

4    A statutory power may cease to exist if Parliament has confined the existence of the power to a defined temporal window. Once the window closes, there is no longer any jurisdiction to act. Any purported exercise of the power is ultra vires because the repository no longer has power. Such a conclusion requires a clear statutory foundation, because it involves reading the statute as having created a power that is programmed to expire by effluxion of time.

5    By contrast, where a statute is construed as requiring that a power be exercised within a reasonable time, the power itself continues to exist. What is constrained is not the existence of the power, but the circumstances in which its exercise will be legally effective. Delay does not deprive the decision-maker of jurisdiction; rather, it may render the exercise of the power unlawful.

6    A particular statute may, properly construed, contain an implied temporal condition or limitation. As explained further below, this typically occurs where the statute, generally using temporal language, specifies that something must occur “on”, “upon” or “after” an event, without specifying a time for exercise of the power. Where it exists, a temporal condition of this kind generally operates as a condition on lawful exercise, not on the existence of the power itself.

7    Delay may also be relevant to some other express or implied condition such as the implied condition that a power be exercised reasonably in the sense described in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. The implied condition of reasonableness applies both to the outcome of the exercise of power and the manner of its exercise: Li at [98].

8    Where there is non-compliance with an express or implied statutory condition on exercise of power, and any requirement of materiality is satisfied (see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [33]), the consequence is generally that the resulting decision is of no legal effect: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; Stanley v DPP (NSW) [2023] HCA 3; 278 CLR 1 at [15]. Non-compliance does not necessarily result in a decision that exceeds the limits of the decision-making authority conferred by the statute or result in a decision with no legal effect for all purposes: MZAPC at [30]; Tonakie v Director of Professional Services Review [2024] FCAFC 60; 302 FCR 335 at [72]. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority, or results in a decision of no legal effect for particular or all purposes, is a question of construction of the statute: MZAPC at [30].

9    But non-compliance with an express or implied condition does not generally exhaust or extinguish the power. For example, if a decision-maker does not comply with the implied condition of reasonableness, then generally: (a) the resulting decision is of no legal effect; but (b) the decision-maker’s power or duty to make a decision in compliance with the statute remains. By way of further example, an administrative tribunal has a duty to review a decision within a reasonable time: Li at [102]. Its power of review is not extinguished when it fails to review the decision within a reasonable time. It might, for example, be ordered to perform its duty. Further, when it provides a delayed decision on its delayed review, that decision has legal effect, subject of course to any material jurisdictional error attending the decision.

10    Jurisdiction and legality operate at different levels. Jurisdiction concerns whether the statute authorises the decision-maker to act at all. Legality concerns whether, assuming the power exists, it has been exercised in conformity with the statute. If delay extinguishes power, the defect is absolute: no amount of reasonable justification or merit can revive the jurisdiction or supply the decision with legal effect. By contrast, where delay bears on legality, the court evaluates the circumstances in context to reach a conclusion about lawful exercise of power.

11    The evaluative assessment of exercise of power is orthodox. Extinction of jurisdiction by effluxion of time is not. Treating unreasonable delay as extinguishing jurisdiction collapses the distinction between jurisdiction and legality and converts a question about lawful exercise into a question about the existence of power.

12    XMBQ’s case was the more radical one: even before the Minister’s decision was made, the power in s 501BA(2) had expired through effluxion of “reasonable time”.

The primary judge’s error

13    The primary judge’s error lay in accepting that an implied condition on the exercise of the power in s 501BA(2) went to the existence of the power as opposed to the legality of its exercise: at [105] and [140]. His Honour reached that conclusion on the basis of a perceived general rule of statutory construction that powers enlivened by an event must be exercised within a reasonable time of that event, at pain of ceasing to exist. No such general rule exists.

14    The primary judge saw support for his view in: Koon Wing Lau v Calwell (1949) 80 CLR 533; Donovan v City of Sale [1979] VR 461; Kardas v Australian Securities Commission (1998) 53 ALD 303; and CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514. On this appeal, XMBQ referred to other cases including Folkard v Metropolitan Railway Co (1873) LR 8 CP 470; Bonella v Twickenham Local Board of Health (1887) 20 QBD 63; and Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225.

15    These cases do not support the existence of a general rule by which statutory powers, enlivened by an event, lapse if not exercised within a reasonable time of the event. They involve the construction of particular statutes in particular contexts, and are mostly concerned with the lawful exercise of power, not its extinction.

16    The relevant parts of the judgments of Dixon and Williams JJ in Lau, concerning the construction of the word “upon” in a provision empowering the Minister to order deportation, were directed to a concern about constitutional validity if the power was indefinite. The case did not involve a challenge to a deportation based on unreasonable delay. Their Honours concluded that the word “upon” meant “after”, but within a reasonable time after: at 573–4 (Dixon J), 590 (Williams J). Accordingly, the power was not indefinite.

17    Although Dixon J spoke of the “ordinary rule”, that must be a reference to the construction of the temporal word “upon”. Lau cannot sensibly be read as announcing a general doctrine of lapse of statutory jurisdiction through effluxion of time.

18    Essentially the same may be said of Folkard, to which Williams J referred in Lau at 590. The relevant statute conferred power on a trial judge to grant leave to appeal “upon the trial”. It was held that “upon” could not mean “during”, and therefore meant “after”, and that the power had to be exercised within a reasonable time after the trial: at 471–2 (Bovill CJ, with whom Keating J agreed), 473 (Brett J), 474 (Grove J). The case involved the construction of a particular temporal phrase, not the general lapse of statutory powers through effluxion of time.

19    In Bonella, the Board of Health could require street frontagers to construct a new sewer if it was dissatisfied with the existing sewer. A sewer was constructed by owners of a building estate. Many years later, after the Board was told that the sewer could not continue to discharge into the Thames, the Board purported to exercise the power to require the owners to construct a new sewer. Lord Esher MR (Bowen and Fry LJJ concurring) held that the power could only be exercised within a time reasonable for the Board to make up its mind about whether it was satisfied with the existing sewer: at 66. The Board had expressed no view about the inadequacy of the sewer and had done nothing for many years. His Lordship considered that the Board therefore had to be taken to have concluded, as a matter of fact, that it was satisfied with the sewer before the changed events. Once the Board was so satisfied, it could not later become dissatisfied based on new circumstances. The decision turned on the lack of the existence of a condition for the exercise of the power – dissatisfaction – and the oppressive consequences of acting on the power decades later.

20    In Hospital Benefit Fund, the statute required hospital benefit funds to notify the Secretary of the Department of certain changes to their constitution or rules within 7 days. If the Minister formed certain opinions about those changes, the Minister was empowered by s 78(4) of the National Health Act 1953 (Cth) to “declare that the change shall not be taken to have come into operation”: at 227. Section 78(4) contained no time limit. The Court implied a time limit, relying on the statutory (and commercial) context, the retroactive operation of the Minister’s decision, and the subject matter being “change”. The Court did not assert the existence of a general principle that statutory powers lapse after a reasonable time.

21    In Donovan, the relevant power was one to suspend registration “on the second or any subsequent conviction”. The word “on” was construed as requiring proximity to the conviction; the Court considered that, if it were otherwise, the words “or any subsequent” were redundant: at 468. Again, the decision turned on the temporal words, not a general principle of lapse of power through delay.

22    Kardas concerned a delay in issuing a prohibition order against a company director. Heerey J treated delay as relevant to legality: at 313–4. Later Full Court authority, addressing the observations of Heerey J in Kardas, makes it clear that delay does not go to the existence of power and that an implied requirement that a power be exercised within a reasonable time is not a free-standing condition precedent going to the existence of the power: Culley v ASIC [2010] FCAFC 43; 183 FCR 279 at [36], [49] to [50].

23    In CPCF, there were several references to powers needing to be exercised within a reasonable time: at [45] (French CJ), [313] and [314] (Kiefel J), [451] to [453] (Keane J). The case concerned the liberty of the individual (detention). The Commonwealth conceded that there was a temporal limitation: at [451]. It is easier to construe a statute as containing an implied time limit where the statutory context concerns liberty. Principles of legal reasonableness might require powers to be exercised within a reasonable time. That does not mean that the power is extinguished because a particular amount of time has elapsed. The High Court did not hold that statutory powers generally expire by effluxion of time.

24    None of these cases establish a general doctrine that statutory powers lapse by effluxion of time. What they recognise is that statutory context may impose constraints on the lawful exercise of power. Delay ordinarily goes to legality, not to the continued existence of power: Culley at [36], [49] to [50].

Section 501BA(2)

25    There are three express preconditions for the exercise of power in s 501BA(2):

(a)    First, a delegate or the Tribunal must decide under s 501CA (the “original decision”) to revoke a mandatory visa cancellation decision made under s 501(3A): s 501BA(1).

(b)    Second, the Minister must be satisfied that the person does not pass the character test because of the operation of s 501(6)(a) (on the basis of s 501(7)(a), (b) or (c)), or s 501(6)(e): s 501BA(2)(a).

(c)    Third, the Minister must be satisfied that the cancellation is in the national interest: s 501BA(2)(b).

26    The role of the “original decision” in s 501BA(1) is to identify the class of case to which the Minister’s override power applies. The “original decision” is not a temporal trigger. It is merely a condition which must exist before the power can be exercised. Section 501BA contains no temporal language. The section “applies” if a revocation decision is made. Once that condition is satisfied, the section continues to apply, albeit two other conditions must exist for its exercise.

27    The power in s 501BA is subject to the implied condition of reasonableness. Specifically, the Minister’s state of satisfaction, that the cancellation is in the national interest, must be attained reasonably: Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [156] and [157]; Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 at [140]; Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6 at [31] and [37].

28    Section 501BA(2) confers a personal, non-compellable power on the Minister to override a decision revoking a mandatory cancellation under s 501(3A). Its principal features include: personal exercise by the Minister; exclusion of natural justice; absence of merits review; satisfaction of a national interest criterion; and operation as an executive override of an outcome produced by an administrative decision of a delegate or the Tribunal.

29    Section 501BA operates on the result created by the revocation of the cancellation: a non-citizen holding a visa. It is the outcome, not the reasoning which led to the revocation decision, that s 501BA addresses: CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [34]; GFE24 v Minister for Immigration and Citizenship [2025] FCAFC 165 at [9] to [13].

30    Through the third condition, s 501BA only authorises executive intervention when the Minister is satisfied it is in the national interest. This concept is broad and evaluative. What is in the national interest is “largely a political question”: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]; Graham at [57]; ENT19 v Minister for Home Affairs [2023] HCA 18; 278 CLR 75 at [11] and [92].

31    Whilst the power might typically be exercised quickly after an “original decision”, there is no reason to construe the power as being confined to such circumstances. What is in the national interest would be expected to evolve over time, possibly even radically changing course by reason of new events and circumstances. An implied temporal guillotine on the existence of the power would undermine s 501BA’s evident purpose.

32    The implication adopted by the primary judge produces a power that expires at no fixed time, and which could only be determined by retrospective judicial assessment, without any statutory guidance as to when expiry occurs. It would expire at different times for different people. No person could know whether the power existed when it was exercised.

33    The unlikely construction that s 501BA(2) provides a power which ceases to exist after a “reasonable time”, is not only contrary to the evident object of the provision, it also does not cohere with the statutory scheme. The override power in s 501A(2) has an analogous structure and function to the power in s 501BA(2). The power to refuse a visa under s 501A(2)(a) does not lapse by reason of the effluxion of time because it is part of the regime for performance of the duty to make a decision under s 65 and the duty does not lapse: KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; 279 FCR 1 at [117] to [127] (Bromberg J); and see the second example at the end of [9] above. Parliament should not be taken to have intended that the s 501A override power persists indefinitely, but the s 501BA override power lapses silently. Those powers have an analogous structure and function within the same statutory architecture.

34    Delayed exercises of power can have harsh consequences, a point emphasised in argument by reference to Damocles’ sword. The harshness is mitigated by the availability of judicial review, including on the implied condition of reasonableness. As mentioned, XMBQ did not put the case on that basis, such that the question on this aspect of the appeal was the narrow question of whether delay had already extinguished jurisdiction to exercise the power in s 501BA(2) by the time the Minister purported to exercise the power. The potential for harsh consequences, mitigated as it is, does not provide a justification for giving the statute an operation contrary to the object it evidently seeks to achieve.

35    I agree with Kennett J that the appeal should be allowed and the notice of contention dismissed.

Associate:

Dated:    9 March 2026

REASONS FOR JUDGMENT

KENNETT J:

36    This appeal concerns a purported exercise of the power conferred on the appellant (the Minister) by s 501BA(2) of the Migration Act 1958 (the Act) to set aside a decision of the (then) Administrative Appeals Tribunal (the Tribunal) and cancel a visa that had been issued to the respondent. The primary judge set aside the Minister’s decision on the ground that, having been made almost three years and two months after the Tribunal’s decision, it had not been made within a reasonable time.

37    The sole ground of appeal advanced by the Minister alleges that the primary judge erred in his construction of s 501BA(2). No complaint is made about his Honour’s assessment of whether the time taken to make the Minister’s decision was reasonable; that issue simply falls away if the Minister’s ground of appeal is made out. The respondent, by a notice of contention, contends that the primary judge should also have held that the Minister’s decision was affected by apprehended bias and was liable to be set aside on that ground.

Background

38    The respondent was born in Somalia in the late 1960s. He fled to Lebanon around 1993 and then arrived in Australia, as the holder of a Class XB Subclass 200 Refugee visa, on 9 January 2004.

39    Between 2008 and 2017 the respondent was convicted of multiple offences including wilful and obscene exposure in a public place, being drunk in a public place and unlawful assault (including against police officers and emergency workers). In June 2017 he pleaded guilty to a group of offences for which he received a total effective sentence of one year and five months’ imprisonment, leading to the cancellation of his visa under s 501(3A) of the Act on 15 December 2017. This group of offences included having masturbated in front of a 29 year old woman on one occasion and a 13 year old girl on another, while on public transport. They also included an assault on a police officer in which the officer was kicked in the face and sustained a fractured cheekbone.

40    The respondent made representations, seeking revocation of the decision to cancel his visa, under s 501CA of the Act. On 15 January 2019 a delegate of the Minister decided not to revoke the cancellation. The Tribunal affirmed that decision on 9 April 2019. However, on 19 December 2019 the Tribunal’s decision was quashed on judicial review (XMBQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2134; 168 ALD 267). The Tribunal was thus required to redetermine the respondent’s review application according to law. On 13 April 2021 the Tribunal set aside the delegate’s decision and substituted a decision revoking the cancellation of the respondent’s visa. The Tribunal’s reasoning does not need to be recounted for the purposes of this appeal.

41    On 7 June 2023 the respondent was convicted of further offences, including some of a sexual nature, for which he received an aggregate sentence of 359 days’ imprisonment.

42    On 29 January 2024 the Department of Home Affairs (the Department) notified the respondent that the Minister intended to consider whether to set aside the Tribunal’s decision and cancel his visa under s 501BA(2). He was invited to comment on information indicating that he may not pass the character test in s 501(6) of the Act and to provide reasons why his visa should not be cancelled. Although there was some correspondence between the Department and the respondent’s legal representatives, it appears that no submissions were provided.

43    The Minister’s decision, which was the subject of the proceedings below, was made on 8 June 2024. The Minister signed a statement of reasons for the decision on that date (the statement of reasons). The respondent’s legal representatives were notified on 16 July 2024. Only certain specific aspects of the Minister’s reasoning need to be referred to for the purposes of our reasoning and these are discussed below.

The statutory regime

44    The stated object of the Act, set out in s 4(1), is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. To this end, the Act erects mechanisms for the grant and cancellation of visas to non-citizens.

45    The grant of a visa is the only basis upon which a non-citizen can obtain permission to enter or remain in Australia. Section 42 of the Act provides that a non-citizen must not travel to Australia without a visa that is in effect. Section 13 defines a non-citizen in the migration zone who holds a visa as a “lawful non-citizen” and s 14 defines a non-citizen in the migration zone who does not hold a visa as an “unlawful non-citizen”. A person who is reasonably suspected to be an unlawful non-citizen must be detained by an officer under s 189 of the Act and (so long as that reasonable suspicion persists) must continue to be detained until they are granted a visa or removed from Australia (s 196).

46    Applications for visas are provided for in Subdivision AA of Division 3 of Part 2. Where a valid visa application is made, s 65 (which is in Subdivision AC of the same Division) requires the Minister to grant the visa if satisfied that the applicable criteria are met and to refuse the visa if not so satisfied.

47    Section 501 of the Act provides for the cancellation of visas on character grounds. There are detailed provisions in s 501(6) concerning circumstances when a person does not pass the “character test”. One of those circumstances is when the person has a “substantial criminal record” (s 501(6)(a)), which is defined in s 501(7) by reference to the person having received criminal sentences of particular degrees of severity (or in some cases having been found unfit to plead or acquitted on the grounds of unsoundness of mind or insanity).

48    Section 501 provides, in substance, for three types of visa cancellation decisions. (Where I set out or describe aspects of s 501 and the related provisions in Part 9 of the Act relating to visa cancellation, I will do so by reference to these provisions as they stood at the time of the Minister’s decision. I will use the present tense, although the provisions have since been amended, primarily to replace references to the Tribunal with references to the Administrative Review Tribunal.)

49    First, under s 501(2), the Minister may cancel a visa that has been issued to a person if (i) the Minister reasonably suspects that the person does not pass the character test and (ii) the person does not satisfy the Minister that they do pass the character test. The power in s 501(2) can only be exercised after the visa holder has had an opportunity to “satisfy” the Minister, and therefore is clearly subject to an obligation to provide procedural fairness. In common with most powers under the Act, this power can be exercised by a delegate of the Minister (s 496). If a decision under s 501(2) is made by a delegate, it can be the subject of an application for review by the Tribunal (s 500(1)(b)). Consideration of the exercise of s 501(2) by a delegate and any decision on review by the Tribunal are both subject to any direction issued by the Minister under s 499.

50    If a delegate, or the Tribunal on review, makes a decision not to exercise the power in s 501(2), s 501A applies. Section 501A confers powers that can only be exercised by the Minister personally (s 501A(5)) and whose exercise is not subject to review by the Tribunal (s 501A(7)). The powers are:

(a)    under s 501A(2), to set aside the original decision and cancel the visa if (i) the Minister reasonably suspects that the person does not pass the character test, (ii) the person does not satisfy the Minister that the person passes the character test and (iii) the Minister is satisfied that the refusal or cancellation is in the national interest (a power which, as the heading to subsection (2) indicates, is subject to obligations of procedural fairness); or

(b)    under s 501A(3), to set aside the original decision and cancel the visa if (i) the Minister reasonably suspects that the person does not pass the character test and (ii) the Minister is satisfied that the refusal or cancellation is in the national interest (a power which, pursuant to s 501A(4), is not subject to procedural fairness).

51    If the power in s 501A(3) (to cancel a visa without affording procedural fairness) is used, s 501C applies. It requires the person whose visa was cancelled to be given formal notice and (subject to exclusions in the regulations) to be invited to make representations about revoking the decision. Under s 501C(4), the Minister (acting personally: s 501C(5)) may revoke the decision if satisfied that the person passes the character test.

52    There is also a power in s 501B for the Minister, acting personally, to intervene if a delegate makes a decision to cancel a visa that has been granted to a person under s 501(2). Under s 501B, the Minister can set aside that decision and substitute his or her own decision cancelling the visa. The power is subject to procedural fairness but its exercise is not reviewable in the Tribunal. Section 501B(5) expressly provides that this power can be exercised even if the original decision is the subject of an application to the Tribunal. The effect is, therefore, to replace a decision that is subject to Tribunal review with one that is not.

53    Secondly, under s 501(3)(b), the Minister may cancel a visa that has been issued to a person if (i) the Minister reasonably suspects that the person does not pass the character test and (ii) the Minister is satisfied that the refusal or cancellation is in the national interest. The power in s 501(3) may only be exercised by the Minister personally (s 501(4)) and principles of procedural fairness do not apply (s 501(5)). When the power in s 501(3) is exercised, a notice of the decision must be tabled in each House of the Parliament within 15 sitting days (s 501(4A). There is no provision for review by the Tribunal.

54    Section 501C, which has been mentioned above, also applies if the Minister uses the power in s 501(3)(b). That is, subject to any exclusions in the regulations, the person whose visa was cancelled may seek revocation of the cancellation decision, and the Minister acting personally may revoke the decision if satisfied that the person passes the character test.

55    Thirdly, under s 501(3A), the Minister must cancel a visa that has been issued to a person if: (i) the Minister is satisfied that the person does not pass the character test because of either the combination of s 501(6)(a) and specified paragraphs of s 501(7) or s 501(6)(e); and (ii) the person is serving a sentence of full time imprisonment for an offence against the law of the Commonwealth or a State or Territory. This power may be exercised by a delegate.

56    Section 501(3A) is not subject to principles of procedural fairness (s 501(5)) and there is no provision for review by the Tribunal. However, s 501CA(3) requires the person whose visa was cancelled to be invited to make representations to the Minister about revocation of the original decision and s 501CA(4) empowers the Minister to revoke that decision if satisfied that (i) the person does pass the character test or (ii) there is “another reason why the original decision should be revoked”. A decision not to revoke a mandatory cancellation, if made by a delegate, can be the subject of an application for review in the Tribunal (s 500(1)(ba)).

57    If a delegate (or the Tribunal on review) decides to revoke a mandatory cancellation pursuant to s 501CA(4), s 501BA comes into play. It is the critical provision in this case and should be set out in full.

501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

Note:    For notification of decisions under subsection (2), see section 501G.

58    In common with other decisions made by the Minister personally, there is no provision for review by the Tribunal of a decision under s 501BA.

59    It should be noted that, in addition to the cancellation provisions discussed above, s 501 contains an express power to refuse a visa where, after affording procedural fairness to the applicant the Minister is not satisfied that the applicant passes the character test (s 501(1)). This power can also be exercised by a delegate. An exercise of the power in s 501(1) is expressly recognised by s 65(1)(a)(iii) as something that prevents the grant of the visa. Section 501A, which has been referred to above, also empowers the Minister to set aside a decision by a delegate not to exercise the power in s 501(1) and substitute a decision refusing the visa. There is also a power to refuse a visa (without affording procedural fairness) in s 501(3)(a) which is exercisable only by the Minister personally.

The proceeding below

60    Four grounds were advanced in the further amended originating application. The three that were pressed before the primary judge were as follows.

(a)    Ground 1 alleged that the Minister had erred by proceeding as if the power in s 501BA(2) was simply a power to cancel a visa, rather than a power to set aside the Tribunal’s decision. The consequence was said to be that the Minister had failed to consider that a consequence of exercising the power was to “deprive the Applicant of the fruits of his three and a half years of litigating judicial and merits review proceedings”.

(b)    Ground 2 alleged that the Minister failed to exercise the power within a reasonable time. The particulars to this ground were that the power is subject to an implied time limit; the Minister’s decision was made almost 38 months after the Tribunal’s decision; and in the circumstances of the case (including that consideration of the matter by the Minister’s Department did not begin until two years and seven months after the Tribunal’s decision) 38 months was not a reasonable time.

(c)    Ground 3 alleged that the Minister’s decision was affected by apprehended bias, arising from the Minister having had information that the respondent had been charged with, but not convicted of, a number of offences, including two charges of rape, after the Tribunal decision (the extraneous information).

61    The primary judge upheld ground 2 and rejected grounds 1 and 3.

62    The reasoning on ground 1 should be mentioned briefly. The primary judge observed that s 501BA(2) conferred a “single power of a composite nature” and continued (at [63]):

I accept that this cannot be treated as simply a power to cancel the visa of a person in circumstances where there happens to have been a previous decision made by a delegate or the Tribunal under s 501CA to revoke a cancellation decision under s 501(3A). The cancellation of a person’s visa under s 501BA(2) is consequent upon and connected with setting aside the original decision that was made under s 501CA(4).

63    However, his Honour held that ground 1 was not made out on the facts on the basis that, on a fair reading of the statement of reasons, the Minister was clearly aware that the exercise of the power involved the setting aside of the Tribunal decision (at [64]-[65]).

64    On ground 2, the primary judge reasoned that s 501BA(2) was subject to an implied limitation requiring a decision to be made within a reasonable time (at [67]-[140]) and that the Minister’s decision had not been made within a reasonable time (at [141]-[191]), and therefore upheld the ground. The first aspect of this reasoning is directly challenged by the Minister’s ground of appeal. The second aspect, as noted above, is not the subject of any challenge: the Minister thus accepts that, if the power in s 501BA(2) is subject to an implied time limit as found by the primary judge, the limit was transgressed in this case.

65    As to ground 3, the Minister accepted that information concerning pending charges against the respondent was before him at the time of making the decision and was irrelevant, but submitted that there was nothing to indicate that these charges had been treated as relevant. The primary judge distinguished the present case from CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 (CNY17) and FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 (FSG17) but noted that the question whether a reasonable apprehension of bias arose depended on the facts and circumstances of the particular case (at [206]). His Honour was not satisfied that the information concerning the pending charges was something that might lead a fair-minded and informed lay observer to consider that the Minister might decide the case otherwise than on its legal and factual merits (at [208]). This reasoning is the subject of the respondent’s notice of contention.

The appeal: must a decision under s 501BA be made within a reasonable time?

66    As noted above, the sole ground of appeal alleges that the primary judge erred in his construction of s 501BA(2). The only issue arising in the appeal is whether, as his Honour held, the power in s 501BA(2) is subject to an implied requirement that it must be exercised within a reasonable time. Because the question is one of statutory construction, as to which this Court must come to its own view, I will refer to the detailed reasoning of the primary judge only to the extent necessary to illuminate my own reasoning.

67    The position advanced by ground 2 of the further amended originating application was that the Minister had erred by “failing to exercise his power within a reasonable time”, including because the power was “subject to an implied limit that it be exercised within a reasonable time of the original decision which engages the power”. The primary judge’s conclusion, at [140], was expressed as follows.

The text, context and purpose of s 501BA are sufficient to attract the principle of statutory construction referred to in [Koon Wing Lau v Calwell (1949) 80 CLR 533 (Koon Wing Lau)] and subsequent cases, to the effect that an exercise of power under s 501BA to set aside an original decision and cancel a visa must be exercised within a reasonable time after the original decision is made by the delegate or the Tribunal. If the power is not exercised within a reasonable time, it will lapse or expire and will no longer be available for exercise by the Minister. There is nothing in the language or context of s 501BA that is inconsistent with or excludes an implication that the power must be exercised within a reasonable time. Such a construction is supported by the extrinsic material and consistent with the mischief which s 501BA was intended to address.

68    As framed in these passages, the relevant limitation is not directed to the quality of the actual decision to exercise the power or the Minister’s reasoning process. The requirement of reasonableness is directed to the period of time that precedes the decision rather than the decision itself. The consequence is, as expressed by his Honour, that the power “will lapse or expire and will no longer be available for exercise by the Minister” after the lapsing of a reasonable time. The ground advanced by the respondent and upheld by the primary judge was therefore, in effect, one of simple ultra vires.

69    The question of statutory construction that arises is therefore whether s 501BA(2) is subject to an implied limitation having the effect that the power can only be exercised within a reasonable time and is thereafter not available. So understood, the availability of the power is objectively limited as to time. However, the limit is what is “reasonable”, which (i) cannot be known at the point when the power becomes available and (ii) depends on all of the circumstances of the case, including the nature of the issues in the particular case and whether natural justice is provided (at [174]), the impact on the rights and interests of the person whose visa is to be cancelled (at [175]) and the competing demands on departmental officers involved in advising the Minister (at [176]). There is a conceptual tension here, to which I will return.

70    The task of statutory construction must always begin and end with the text, read in context (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ) and [37] (Gageler J); ENT19 v Minister for Home Affairs [2023] HCA 18; 278 CLR 75 at [86]-[87] (Gordon, Edelman, Steward and Gleeson JJ); DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 at [23] (Gageler CJ, Gordon, Edelman and Gleeson JJ)). The question is what the legislature is taken to have meant by the words that it used, and the result that is arrived at must (except perhaps in the rare cases where a drafting error is identified) be one that the words of the provision under consideration are capable of bearing. I propose to approach the question in this case by reference to the text of s 501BA, read with any applicable canons of statutory construction; the immediate context within which it is found; and extrinsic materials in so far as they are relevant.

71    I observe at this point that, contrary to what might perhaps be taken from the first line of the extract above, I do not regard the “purpose” of the provision as a distinct factor bearing upon its construction along with text and context. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in Lacey v Attorney-General of Queensland [2011] HCA 10; 242 CLR 573 at [44]:

The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.

Text

72    Section 501BA has been set out above. Clearly, in its terms, it is open-ended as to the timing of an exercise of the power in subsection (2), other than that the decision must necessarily come after what is defined as an “original decision” (ie, a decision by a delegate or the Tribunal to revoke a mandatory cancellation).

73    It has been observed, correctly in my view, that the reasons for the original decision are not a mandatory consideration and that the “critical question for the Minister’s consideration is singular; namely, whether it is in the national interest that the state of affairs obtaining in consequence of the Tribunal’s decision should be reversed”: CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [33] (Owens J) (CRRN). Recently, in GFE24 v Minister for Immigration and Citizenship [2025] FCAFC 165 (GFE24), a Full Court (Collier, Jackman and Younan JJ) held that the power in s 501BA(2) could be validly exercised in relation to a Tribunal decision without waiting to receive the Tribunal’s reasons.

74    It does not necessarily follow that the primary judge in the present case erred in understanding s 501BA(2) as conferring a power that is “aimed at or directed to an original decision … and contemplates that it will be exercised in response to such a decision” (at [70]; see also at [138]). The power is brought into existence by the making of the original decision and is framed as a power to “set aside” that decision; so that it can properly be seen as involving a response to what was referred to in CRRN as “the state of affairs obtaining in consequence of” that decision. It may be that implications flow from this aspect of the statutory language as to the matters that may validly inform the Minister’s consideration of the national interest: for example, it may be arguable that the power cannot properly be exercised in response to new offending by the visa holder or additional reasons why they do not pass the character test arising after the original decision. Such an argument might draw strength from the existence of the suite of cancellation powers mentioned earlier, on the footing that Parliament intended s 501(2), (3) or (3A) to be used in the first instance when further offences are committed. In the present case the respondent was convicted of two further offences in June 2023, and these were taken into account by the Minister.

75    Delay in considering the exercise of the power may also be relevant to questions of legal unreasonableness, particularly if the visa holder has been at liberty for some time and re-established a life in Australia (although some caution is called for here: see Hood v Assistant Minister for Immigration [2025] FCA 1336 at [42]-[43] (Kennett J)). However, that is also a different argument from the one that was put to and accepted by the primary judge. His Honour’s reasoning was based on the passage of time rather than the Minister’s reasoning. Such reasoning goes to the availability of the power rather than the reasons for its exercise (cf Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [38]-[39] (Gummow ACJ and Kiefel J)) and therefore does not fit within the line of cases establishing that statutory discretions must be exercised “according to the rules of reason and justice” (Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [24] (French CJ) and [65] (Hayne, Kiefel and Bell JJ) (Li)).

76    The respondent has filed a notice of contention, but has not sought to re-agitate ground 1 of the further amended originating application or to raise any new argument concerning the nature of the power.

77    The connection that s 501BA(2) requires between the original decision and the decision to set it aside does not support an implied limitation based on the expiry of a reasonable time. There are at least three reasons why this is so.

No authority establishes a general rule of construction that implies a time limit

78    Koon Wing Lau is an unsatisfactory basis for a general “principle of construction” that a statutory power which is triggered by the happening of an event must be exercised within a “reasonable time” after that event. Koon Wing Lau involved several proceedings commenced by people who were prohibited immigrants, or required by the applicable statute to pass a dictation test for entry into Australia, but had been granted certificates of exemption. That arrangement had been brought to an end pursuant to the Immigration Act 1949 (Cth) and War-time Refugees Removal Act 1949 (Cth), and the plaintiffs and prosecutors had been issued notices of deportation. The issues for determination involved the validity of certain provisions of those Acts. The provision that is relevant for present purposes conferred power on the Minister, “upon the expiration or cancellation of any such certificate”, to declare the (former) certificate holder a prohibited immigrant and order their deportation.

79    Dixon and Williams JJ addressed the question whether the Minister was entitled to act under that provision without any limitation of time. Dixon J said at 573-574:

The word “upon,” in the expression “upon the expiration or cancellation” does not, I think, mean immediately upon and, as the Supreme Court of New South Wales has decided, it does mean “after”.

But, in accordance with the ordinary rule, that must be taken to mean within a reasonable time after the expiration and cancellation of the certificate of exemption. What is a reasonable time will depend upon all the facts, including the conduct of the person named in the certificate.

(Citations omitted.)

80    Williams J (with whom Rich J agreed), at 590, expressed agreement that “‘upon’ means ‘after’ but it does not, in my opinion, mean an indefinite time afterwards but within a reasonable time afterwards”.

81    It appears that both of their Honours expressed these views, not in order to decide a challenge to deportation based on unreasonable delay, but in the course of construing the legislation for the purpose of determining its validity (see at 576 (Dixon J), 591 (Williams J)). The specific argument being addressed was that, if the provision empowered the Minister to wait indefinitely before ordering deportation, the provision would authorise deportation of somebody who was no longer an “immigrant” (and therefore beyond the reach of s 51(xxvii) of the Constitution). Williams J, at least, seemed to accept this argument (at 590) and was therefore adopting a construction of the provision that avoided invalidity. His Honour did not purport to be expounding any “ordinary rule”. The other members of the Court did not need to consider the meaning of “upon the expiration or cancellation” because of the view they took about the scope of s 51(xxvii) (see at 559-561 (Latham CJ, with whom McTiernan and Webb JJ agreed)).

82    It is not entirely clear whether, when Dixon J said “that must be taken to mean” in the quotation set out above, he was referring to the statutory language in question (“upon the expiration or cancellation”) or to some broader principle that a statutory power must be exercised within a “reasonable time” after the event that brings it into existence. With respect, I see no proper basis for any such broader principle and have not been referred to any earlier authority for its existence which his Honour might have had in mind. Any such implication must depend on the context. It is more likely that Dixon J had in mind an “ordinary rule” concerning the meaning of “upon” and similar expressions. There was authority (cited by Williams J) in support of such a rule: Folkard v Metropolitan Railway Company (1873) LR 8 CP 470. The expression “upon” is clearly capable, at least in some contexts, of being understood to require some degree of temporal proximity; and the context of Koon Wing Lau was clearly one that supported reading the expression in that way, at least if the alternative reading would raise a question about validity. There is no equivalent language in s 501BA.

83    The two single judge decisions referring to Koon Wing Lau cited by the primary judge at [109]-[110] do not advance matters significantly.

(a)    In Donovan v City of Sale [1979] VR 461, the power in question was to suspend the registration of premises under the Health Act 1958 (Vic) “[o]n the second or any subsequent conviction of any person for an offence against this Act”. “On” is in effect a synonym for “upon”; and the words “or any subsequent” would have been superfluous if the “second” conviction were simply a trigger that allowed the power to be exercised at any time, indicating an intention that the exercise of power would be proximate in time to the recording of a conviction.

(b)    In Kardas v Australian Securities Commission (1998) 53 ALD 303 (Kardas), the power in question was to prohibit a person from managing a corporation for a period of up to five years. It was available, following the issue of a show cause notice, if the corporation was one in respect of which a liquidator had made a report within the 7 year period preceding the show cause notice. Heerey J set aside a decision to impose a prohibition on the ground of unreasonable delay (at 313-314), but it is apparent that his Honour was taking into account both the time that elapsed before the show cause notice was issued (around 18 months) and the time taken to complete the hearing process thereafter (26 months). The latter of these periods appears to us to raise an issue of unreasonableness in procedure (cf Li at [91] (Gageler J)) rather than the implication of a statutory time limit. Moreover, his Honour’s analysis of why a time limit arose did not go beyond observing that a statutory power “will often be subject to an implied requirement that it be exercised within a reasonable time” and an assertion that the power in question “if it is to be exercised at all, should be exercised with reasonable promptness” (at 313). There was no express engagement with the statutory language and no attempt to explain how the implied time limit was to be reconciled with the express provision allowing action to be taken within 7 years after a liquidator’s report.

(c)    The authority of Kardas is very much diminished by subsequent decisions. In Culley v Australian Securities and Investments Commission [2010] FCAFC 43; 183 FCR 279 at [36], [49] (Ryan, Mansfield and McKerracher JJ), Kardas was treated as standing only for the proposition that lapse of time was a relevant factor in the exercise of the discretion (and not to be followed if it stood for a free-standing condition precedent: at [50]). See also Quinlivan v Australian Securities and Investments Commission [2010] FCAFC 161 at [36] (Dowsett, Greenwood and Gilmour JJ).

84    Koon Wing Lau was also referred to in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 (CPCF), where the issue was the validity of the detention of certain persons on a Commonwealth vessel taking them from a place within Australia’s contiguous zone towards another country. Section 72(4) of the Maritime Powers Act 2013 (Cth) in its terms authorised an officer to “detain the person and take the person” to a place in the migration zone or a place outside the migration zone (including a place outside Australia). Koon Wing Lau was cited by Gageler J (at [376]) in support of a broad proposition that, where no time limit is specified for the doing of an act, it must be done within a reasonable time. Kiefel J (at [313]) cited the case in support of an even more stringent implication — that the act must be done “as soon as reasonably practicable” — which, she said, was to be drawn if possible. Section 72(4) did not admit of such a possibility, but her Honour went on to say at [314] that the decision where to take a person would need to be made within a reasonable time and the time taken to reach the chosen destination would have to be reasonable. However, the point was not in issue and this aspect of the reasoning is therefore not binding (CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 at [13] (Gleeson CJ, Gummow and Heydon JJ)). In CPCF, Crennan J (at [197]) and Keane J (at [451]) noted the defendants’ acceptance that the taking of the detained person to another place under s 72(4) was required to be effected within a reasonable time. If s 72(4) were not construed in that way, the authority to detain that it conferred would probably have been inconsistent with the principle established by Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (at [217] (Crennan J)).

85    I note that Koon Wing Lau was also referred to in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; 279 FCR 1 (KDSP). That case concerned s 501A(2) of the Act in its application to a decision not to exercise the power in s 501(1) to refuse to grant a visa. Section 501A has been summarised earlier in its application to a decision under s 501(2) not to cancel a visa, but it is useful to set out its core provisions in full.

501A Refusal or cancellation of visa—setting aside and substitution of non‑adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(2)    The Minister may set aside the original decision and:

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

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

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

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

Action by Minister—natural justice does not apply

(3)    The Minister may set aside the original decision and:

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

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

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

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

86    O’Callaghan and Steward JJ did not find it necessary to decide whether the power in s 501A(2) was required to be exercised within a reasonable time, on the basis that the time taken by the Minister in that case was not unreasonable. Bromberg J, concurring in the result, held that no such requirement applied (at [117]-[127]). It was important to his Honour’s reasoning that consideration of whether to refuse a visa under s 501A(2)(a) occurred as part of the performance of the Minister’s obligation under s 65 of the Act to grant or refuse a visa in response to a valid application. That duty to decide was required to be performed within a reasonable time and enforceable by mandamus; however, failure to decide did not result in the lapsing of the duty. The proposition that the duty persisted but one of the available mechanisms for performing it lapsed was, as his Honour put it at [126], unattractive.

87    Because the operation of s 501A(2) in KDSP was an element of the decision whether to grant a visa, which was the subject of a duty that did not lapse, the reasoning of Bromberg J is not directly relevant to the scope of any principle of construction deriving from Koon Wing Lau. However, it has some contextual relevance which will be mentioned later.

88    Some of the argument and reasoning in KDSP proceeded by reference to Thornton v Repatriation Commission (1981) 52 FLR 285 (Fisher J) (Thornton). Thornton was referred to by the primary judge but was not cited in the argument before us. Fisher J framed a question as to excessive delay in terms of whether there were “circumstances which a reasonable man might consider render this delay justified and not capricious” and observed that the delay in that case was “not in consequence of neglect, delay or perversity” (at 292). However, Thornton was an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order equivalent to mandamus to require the Repatriation Commission to decide the applicant’s claim for a pension (a decision having been postponed to await the outcome of a case in the High Court). It was therefore a case of an unperformed duty, where the question was whether an order compelling performance should be made, and raised a different set of issues from a dispute as to whether a discretionary and non-compellable power has lapsed. Thornton may have some relevance, by analogy, to a question as to whether a requirement for the power in s 501BA(2) to be exercised within a reasonable time has been satisfied. However, it does not assist in determining whether such a requirement arises.

89    The respondent’s submissions also referred to Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 (Hospital Benefit Fund), where the Full Court (Wilcox, Burchett and French JJ) held that a provision empowering the Minister to disallow rule changes was subject to an implied requirement that the power be exercised within a reasonable time. I discuss this case further below. For present purposes, the point to be noted is that the Court’s reasoning on this point (at 227-229) did not invoke any rule of construction concerning the imposition of time limits on discretionary powers or cite any authority bearing directly on that issue.

90    This survey of the cases indicates that there is no general rule of construction requiring a statutory power to be construed as subject to an implied time limit (resulting in the lapsing of the power if that limit is exceeded) in the absence of some textual or contextual indication that Parliament intended such a limit to apply.

No textual indications

91    Nothing in the text of s 501BA provides such an indication. Section 501BA(1) sets out the precondition for the exercise of the power in a neutral way (“this section applies if [a delegate or the Tribunal] makes a decision under section 501CA”) which tends to suggest that, once the section “applies”, it continues to apply. The decision authorised to be made by s 501BA(2) is linked to the original decision in that it involves setting that decision aside, but it is not linked by words that suggest temporal proximity (such as “upon” or “on”).

92    It can be accepted that the cancellation of a person’s visa long after it has been restored to them, if they have lived a blameless life in the interim, is a harsh measure which may offend ordinary notions of fairness and humanity (see, eg, Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; 294 FCR 270 at [41]-[43] (Bromwich J)). Promptness in the exercise of the power, if it is to be exercised, is therefore clearly desirable. However, as French CJ, Hayne, Kiefel and Bell JJ observed in Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; 248 CLR 1 at [28]:

In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.

93    Similarly, the respondent submits that the exclusion of principles of procedural fairness by s 501BA(3) does not deny the more general proposition that the Act is to be construed against a more general background of common law notions of justice and fairness. However, the fairness that is implied by the common law is procedural, and this is what s 501BA(3) expressly excludes. While I agree with the primary judge (at [138]) that the exclusion of procedural fairness “makes sense” if the power in s 501BA is exercised “in response to” the outcome of an original decision (because the visa holder will have been afforded a hearing in connection with that decision), it does not follow that that exclusion does not “make sense” if the power is available for exercise months or years later when the material presented to the Tribunal is stale. First, GFE24 establishes that in exercising the power the Minister need not take into account the reasons why the Tribunal decision was made, and the same is therefore true of the case that was advanced before the Tribunal. The only issue for consideration (assuming the Minister is satisfied that the person does not pass the character test for the reasons mentioned in s 501BA(2)(a)) is whether, having regard to the national interest, the outcome of the original decision should be allowed to persist. Secondly, at least ordinarily, where the national interest lies does not turn on the circumstances of an individual. The expectation that the Minister would be able to consider the material from previous decision-making processes may be part of the reason why Parliament excluded natural justice (indeed it is referred to in the extrinsic material discussed below). However, that observation tends to support a limit on the power based on what conduct or events are taken into account rather than one based purely on timing.

94    The present case thus stands in contrast to Hospital Benefit Fund, upon which the respondent relied. There, s 78 of the National Health Act 1953 (Cth) required a registered organisation to serve notice of any change to its constitution, articles of association or rules, and then empowered the Minister to declare that the change “shall not be taken to have come into operation”. The Full Court considered it obvious that the power conferred on the Minister was one that was required to be exercised within a reasonable time. This conclusion was explained at 227-229 by reference to several features of the statutory scheme and having regard to the integrity of that scheme. These features included that the subject-matter of s 78 was “change, a concept related to a time, whether precise or approximate”; the changes involved were fundamental and the legislature could not have contemplated that they would be left uncertain for possibly years (a point emphasised by the short time permitted for changes to be notified); the matters that the Minister was required to consider all involved the prospective effects of the change (indicating a quick decision about likely consequences rather than long reflection about the past); and the power invested in the Minister was to disallow the change ab initio.

95    Section 501BA does not have comparable features. It does not contain textual indications that the Parliament intended decisions to be made within any particular time frame. The power in s 501BA is to set aside an original decision and “cancel” a visa, a decision that operates only prospectively and does not have any implications for the lawfulness of things already done. Its exercise after a long period of delay may have devastating consequences for an individual, but does not challenge the proper operation of the scheme created by the Act.

Coherence

96    There is a degree of incoherence in an implied requirement that any decision under s 501BA(2) be made within a “reasonable time”, failing which the power becomes unavailable. The ascertainment of a “reasonable time” is, as the primary judge’s reasons illustrate, a fact-intensive, evidence-heavy, evaluative exercise. Whether a decision has been made within a “reasonable” time involves consideration of all relevant circumstances, including (it would appear) the factors that bear upon the Minister’s assessment of the national interest, whether it is considered appropriate to invite submissions from the visa holder, the competing demands on officers in the area of the Department responsible for advising the Minister, and (subject to what I have said at [93] above) the conduct of the visa holder since the original decision was made. I have noted above that the length of time that will be “reasonable” cannot be known at the outset. In many cases, it will only be possible to say when a “reasonable time” ends after the event, when the validity of a decision is tested in Court. It is not the position that everybody understands the decision must be made in a few days or weeks and can order their affairs accordingly. Rather, single judges of the Court, assuming that a requirement to make a decision within a reasonable time exists, have found that requirement not to be breached by delays of between 7 and 47 months (Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24; GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415; Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266; Archer v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 471; Eswaran v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 496). The indeterminacy of the implication, in an area of relatively high-volume decision-making, weighs against its making.

97    There is a further layer to this point. Each of the cases cited in the previous paragraph proceeded, as did the primary judge in the present case, on the understanding that the factors relevant to the ascertainment of a “reasonable” time included the demands placed upon, and resources available to, the area in the Department responsible for analysing Tribunal decisions and determining whether particular decisions should be the subject of a submission to the Minister. As I pointed out in Hood at [35], these resourcing constraints are largely the consequence of decisions about priorities — decisions which are made by the departmental Secretary, by the Minister or by the Government (of which the Minister is a member) as part of the Budget process. There is a degree of incongruity in the implication of a statutory time limit for the making of a decision which varies in inverse proportion to the effort devoted to advising the decision maker. On the other hand, courts have generally (and properly) been reticent about second-guessing decisions concerning resource allocation by government; and an assessment of a “reasonable time” that took no account of resource constraints would be somewhat artificial if not arbitrary.

Context

98    Section 501BA, as noted earlier, sits within a fairly detailed scheme for the cancellation of visas on character grounds. To the extent possible, it should be construed harmoniously with the other elements of that scheme.

99    Each of the three primary cancellation powers (s 501(2), (3) and (3A)) involves capacity for the Minister acting personally to intervene and make a decision, in the national interest, that is not subject to procedural fairness or merits review. Self-evidently, these are draconian provisions that exclude rights normally afforded to people affected by administrative decisions. However, that point does not itself advance the exercise of statutory construction very far because it is clear that the legislature intended to exclude these rights (and it was within its power to do so).

100    Under s 501(3), the process begins with a decision made by the Minister personally. The only criteria for the exercise of the power are that the Minister suspects that the visa holder does not pass the character test and the Minister is satisfied that cancellation is in the national interest. No temporal aspect is expressly provided for or obviously implicit. The Minister might, for example, reach a view about the national interest a long time after any offences committed by the visa holder (for example, if perceptions about the seriousness of those offences had changed significantly). The result is different from a decision under s 501BA(2), in that the person whose visa has been cancelled normally has an opportunity to ask the Minister to think again pursuant to s 501C, although that is not something that bears directly on the existence of an implied time limit.

101    A decision not to exercise the power in s 501(2) is subject to being set aside by the Minister, acting personally, under s 501A. A mandatory cancellation under s 501(3A), if revoked pursuant to s 501CA(4), may have its effect restored by the Minister acting personally under s 501BA. In either case, the power conferred on the Minister is to “set aside” an original decision and “cancel” the visa. One difference in outcomes is that, if a decision is made to cancel a visa without procedural fairness under s 501A(3), there is provision in s 501C for the decision to be reconsidered after notice to the visa holder.

102    Three aspects of the statutory context should be noted.

103    First, as noted above, Bromberg J in KDSP held that the power to refuse a visa under s 501A(2)(a) did not lapse by reason of the effluxion of time because it was part of the regime for performance of the duty to make a decision under s 65 (and the duty did not lapse) (at [125]-[126]). This reasoning (with which I agree) is relevant to the construction of s 501BA(2). Because s 501A(2) (which I have set out at [85] above) deals in the same breath with the setting aside of decisions not to refuse and decisions not to cancel, it is impossible to accept that Parliament intended the power conferred by that subsection to lapse as a result of the effluxion of time in one kind of case but not in the other. While his Honour properly reserved his position on the issue (at [128]), I consider that his reasoning leads to the position that s 501A(2) is not subject to an implied time limit in so far as it confers power to cancel a visa. This has substantial contextual relevance to the interpretation of s 501BA(2), because the two sections confer equivalent cancellation powers in two strands of a detailed and coherent regime. The absence of a time limit for the exercise of the power in s 501A(2) makes it much less likely that Parliament intended a time limit to apply to s 501BA(2) but did not expressly say so.

104    Secondly, the primary judge referred at [83]-[85] to the discussion in Moli v Immigration and Multicultural Affairs [2025] FCA 350 (Colvin J) (Moli) of the legislative history of the “national interest” powers and their role in the statutory scheme. His Honour set out at [85] the following passages taken from [97] and [110]-[111] of Moli:

[Section] 501BA operates within the legislative scheme as a form of national interest call-in power by which the Minister may set aside a decision that has been made pursuant to that scheme (being a decision to the effect that a visa cancellation be revoked). Exercise of the power results in the setting aside of a favourable decision for the person concerned and its replacement with an adverse decision.

…

Considered in that context, the legislative scheme indicates a construction of s 501BA to the effect that the formation of the state of satisfaction as to whether a visa cancellation is “in the national interest” for the purposes of the pre-condition to the discretionary power to cancel a visa, requires the identification of some aspect of the national interest that means the ordinary merits adjudication process should not determine whether the person has a visa. Which is not to say that there needs to be some fault or correction required in the decision of the delegate or the Tribunal (as the case may be). Rather, it is to say that the aspect of the national interest that is the foundation for the Minister's satisfaction “in the national interest” that a decision to revoke a visa cancellation should be set aside must itself be a reason why the decision to revoke the cancellation made pursuant to the legislative scheme (itself enacted in the national interest) should be reversed. In that limited sense, there is a requirement for a form of exceptionality.

However, it is not a requirement that would mean, as the submissions for Mr Moli tended to suggest, that the power conferred by s 501BA could only be exercised in cases where the national interest being served, advanced or promoted by the cancellation was itself in some special category of exceptionality. Rather, what is required is the identification of some aspect of the national interest that means that the decision made in accordance with a legislative scheme that is itself enacted in the national interest is to be reversed.

(Emphasis in original.)

105    The point that the primary judge drew from this discussion (at [86]) was that it emphasised the connection between the original decision made by a delegate or the Tribunal and the exercise of power by the Minister under s 501BA(2). I do not disagree with that observation or with anything said in Moli; however, for reasons outlined above, I do not think it follows that that connection necessarily requires any particular temporal proximity.

106    The respondent’s submissions in the appeal drew on this part of the primary judge’s reasons to suggest that the placement of s 501BA(2) within the broader scheme for regulating the circumstances in which aliens may remain in Australia brings it into an “administrative continuum” comprising primary decision making and then merits review. I do not accept that this observation is correct or that it assists the respondent. The evident purpose and effect of s 501BA is to permit the Minister to override the final decision in that administrative continuum. Its construction should not be constrained by notions drawn from the regime to which it is an express exception.

107    Thirdly, the submissions of the respondent emphasised that, if treated as indefinite, s 501BA(2) “overlaps adjacent cancellation powers”. Those powers, as I understand them, would:

(a)    require procedural fairness and be subject to merits review (s 501(2));

(b)    require tabling in Parliament (s 501(3)); or

(c)    be subject to provision for revocation, with merits review of a non-revocation decision (s 501(3A)).

108    It was also suggested that an expansive construction of s 501BA(2) allows it to be used as a response to subsequent events that would not themselves enliven other cancellation powers.

109    These points have some force. As I have indicated above, the existence of a suite of cancellation powers with specific triggers and with provision for procedural fairness (and merits review) might support a construction of s 501BA(2) that limits its capacity to be used in response to new events. However, this is a distinct form of limitation from one based on the expiry of a “reasonable time” and not one that was contended for in the appeal. The absence of a time limit for exercise of the power is not inconsistent with the existence of such a limitation. The coherence of the statutory scheme is not undermined if s 501BA(2) is understood to allow the Minister (for example) to re-assess the national interest a long time after the original decision was made, or simply to be slow in reaching a view about the state of affairs brought into existence by the original decision.

110    For these reasons, the statutory context does not support the implication of a time limit into s 501BA(2). If anything, the context is against such an implication.

Extrinsic materials

111    Section 501BA was inserted by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (the 2014 Amendment Act). Neither party suggested that any materials relevant to the passage of that Act shed significant light on the issues in the appeal.

112    The 2014 Amendment Act made a number of amendments to the regime for character cancellations (as well as other cancellation provisions), including amendments to the character test and insertion of the provisions for mandatory cancellation (s 501(3A)), revocation of such cancellation (s 501CA) and the overriding of revocation decisions by the Minister (s 501BA). The notes on the proposed new s 501BA in the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (the 2014 Amendment Bill) included the following (at [84]-[85]).

New subsection 501BA(3) of the Migration Act provides that the rules of natural justice do not apply to a decision under subsection 501BA(2). However, natural justice will have already been provided to the non-citizen through the revocation process available under s 501CA.

Minister’s exercise of power

New subsection 501BA(4) of the Migration Act provides that the power under subsection 501BA(2) may only be exercised by the Minister personally. The intention is that this is a personal power of the Minister to ensure that, despite a decision of a delegate or tribunal to revoke a visa cancellation, the Minister retains the ability in exceptional cases, where it is in the national interest, to remove a person who does not pass the character test from the community.

113    Two points may be taken from this.

(a)    One is that the Government, in introducing the 2014 Amendment Bill, thought it useful to insert a reminder that a person whose visa was cancelled without procedural fairness under the new provision would have received procedural fairness in the course of the revocation process. This provides some indication that the process considered as a whole was understood to be fair, and therefore (arguably) that s 501BA was not envisaged as providing for a visa to be cancelled because of matters upon which the holder had never had a hearing. However, as I have noted above, this does not in itself assist with the question whether the power is conditioned by a time limit.

(b)    The other is that the “exceptional” nature of the new power and its basis in the national interest were stressed. This tends (but only slightly) to support the view that the circumstances in which the power was available were not intended to be narrower than indicated by its terms.

114    In the Second Reading Speech on the 2014 Amendment Bill, the Minister referred in a very general way to a need for the government to “have the ability to act decisively and effectively … to deal with unlawful, fraudulent or criminal behaviour by noncitizens” (Commonwealth Parliamentary Debates, House of Representatives, 24 September 2014, pp 10326). Later, apparently referring (inter alia) to proposed s 501BA(2), he said (at 10326):

The measures proposed will ensure that the government can move quickly to take action against noncitizens who pose a risk to the Australian community by delivering consistency in personal ministerial decision-making powers across both the character and general visa cancellation powers. This will involve the introduction of personal ministerial powers to set aside and substitute decisions of delegates and tribunals …

115    These statements indicate an intention to empower the Minister to Act “quickly”, but do not assist meaningfully in determining whether there was an intention to require quick action.

116    Nothing in the extrinsic materials to which we have been referred points convincingly to s 501BA(2) having been intended to be available only for a reasonable time.

Conclusion

117    The primary judge erred in holding that the power in s 501BA lapsed if it was not exercised within a reasonable time. The ground set out in the Minister’s notice of appeal is therefore made out. I should add that I do not regard anything I have said above as inconsistent with the reasons of Thawley J and I agree with his Honour.

The notice of contention: apprehended bias

118    One of the documents before the Minister when he made his decision was a National Criminal History Check (the Criminal History), dated 9 November 2023, which contained an entry recording that as at 30 April 2023 the respondent faced two charges of rape (the rape charges). The document expressly stated that these charges had not been determined by a court and could not be regarded as a finding of guilt. The Minister’s statement of reasons made no mention of these charges although it expressly cited the Criminal History, referred to the offences for which the respondent had been convicted in June 2023 and expressly referred to “re-offending after the AAT decision” as a reason why there was a high risk of the respondent re-offending.

119    Both the Criminal History and the statement of reasons in draft form were attached to a submission from the Department to the Minister dated 2 June 2024 (the departmental submission). The submission made no express reference to the rape charges, but directed the Minister’s attention in a general way to the attached material and indicated conclusions that would be open. In effect the detailed analysis of the case was contained in the draft statement of reasons, which the Minister was being invited to adopt if he agreed. The submission told the Minister that it would be open to him to seek submissions from the respondent before making a decision, but noted that the respondent had made extensive representations in seeking revocation of the mandatory cancellation.

120    The respondent submits that the entry in the Criminal History referring to the rape charges was “extraneous and prejudicial information” and that a fair-minded lay observer might consider that, because the Minister had this information, he might not have brought an impartial mind to the issues he was required to decide. This submission invokes CNY17, where the High Court set aside a decision of the Immigration Assessment Authority (IAA) because irrelevant and prejudicial information about the visa applicant had been provided to it by the Department.

121    Before the primary judge, the Minister accepted that the rape charges were irrelevant to the issues to be determined for the purposes of s 501BA(2), but submitted that there was nothing to indicate that the charges had been treated as relevant. It was suggested that the existence of the charges had been raised in correspondence with the Department by the respondent’s legal representatives (in support of an argument that any consideration of exercising the power in s 501BA should be delayed). This appears to have been a reference to an email exchange on 26 February 2024, in which a case officer in the Department said that an extension of time could not be authorised but that timing would depend on “whether a full trial proceeds this week … in relation to pending matters”. The respondent’s representatives in their response referred to the fact “that the pending matters referred to in your email are yet to be judicially determined” as a reason why any exercise of the power should be delayed.

122    This argument was not developed further before us and it is not clear where it leads. If the rape charges had actually come to the Minister’s attention in the context of advice that his consideration of exercising the power in s 501BA(2) should wait (including because the pendency of charges was not relevant in itself but further convictions would be relevant), that would obviously have relevance to the capacity of the information to affect his reasoning; but it did not. Alternatively, there might be a waiver argument if the respondent through his representatives had brought the rape charges to the Minister’s attention as a factor to be considered in the exercise of the discretion; however, this did not occur either. (It is not clear what the respondent’s representatives were hoping to achieve by suggesting that the Minister’s decision should be delayed, but this does not need to be explored.)

123    The respondent also referred to documents which suggested that the Department was monitoring the progress of the proceedings in relation to the rape charges in March and April 2024. The primary judge accepted that the Department was aware of the charges and was monitoring their progress (indeed, that appears to be what the February 2024 emails referred to in the previous paragraph were about). However, as his Honour noted at [205], there is nothing to indicate that these documents were provided to the Minister for the purpose of his decision. There is thus nothing to suggest that information about the rape charges came to the Minister’s attention by any means other than the inclusion of the Criminal History in the briefing material.

124    In his submissions in the appeal, the respondent notes that:

(a)    the rape charges, if substantiated, would have been the respondent’s most serious offences;

(b)    the Minister did not refer to the rape charges in his reasons but also did not disavow reliance on their existence;

(c)    the statement of reasons indicates that the Minister was primarily motivated by concern about the respondent’s commission of sexual offences; and

(d)    the Minister expressed particular concern about offences committed after the Tribunal’s decision.

125    In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Ebner), Gleeson CJ, McHugh, Gummow and Hayne JJ stated the test for disqualification of a judge on the ground of apprehended bias in the following way:

… a judge is disqualified if 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.

126    Since Ebner, the same test has been applied in cases involving apprehended bias as a ground of review of administrative decisions. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 279 CLR 148 at [38] (QYFM), Kiefel CJ and Gageler J observed that this test:

…has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

127    Using this framework, the factor in step (1) in the present case is the Minister having had before him information about the existence of the rape charges. The logical connection required by step (2) is that that information was not capable of being relevant to the issue that the Minister was required to decide, but considering the information might have caused the Minister (perhaps subconsciously) to regard the applicant as someone guilty of more serious criminal conduct than had actually been proved against him. As to this step, like the primary judge (at [207]), I am not necessarily convinced that the information was necessarily incapable of being relevant to an assessment of the national interest, but will proceed on the basis that it was both irrelevant and prejudicial. The difficulty for the respondent arises at step (3).

128    As noted above, reliance was placed on CNY17. The appellant in that case had been refused a protection visa by a delegate of the Minister and his case had been automatically referred to the IAA for a limited form of review under the Act. Section 473CB of the Act required the Secretary of the Department to give the IAA certain specified material, including material that the Secretary considered to be relevant to the review, and s 473DB required the IAA to review the refusal decision by considering the review material provided by the Secretary. The material that was provided to the IAA by the Secretary included material that was conceded to be both irrelevant to its review task and prejudicial to the applicant: facts concerning offences in relation to which he had been convicted or charged (which had been disclosed by him in his visa application) and assertions about unspecified aggressive or challenging behaviour and about the applicant being the subject of investigations.

129    The majority in CNY17 was formed by Nettle, Gordon and Edelman JJ. Nettle and Gordon JJ considered that the fair-minded lay observer would know the key aspects of the statutory scheme, including that the Secretary was required to give the IAA material that he or she considered “relevant” to the review; that the IAA was required to conduct its review by considering that material; that the IAA was generally required to proceed without obtaining further material or interviewing the visa applicant; and that the IAA was not required to give the applicant any of the material before the Minister (at [94]). They considered that there was a “risk” that the prejudicial material would lead the IAA to have a bias against the applicant, possibly by thinking that he was not a fit person to hold a visa (at [96]). There was a risk of “subconscious bias”, which could not be cured by the IAA putting the material aside (at [97]). Putting the material aside was also difficult to reconcile with the statutory scheme (at [99]). Their Honours concluded at [100]:

Returning to the test, a fair-minded lay observer might apprehend a lack of impartiality on the part of the IAA where: (i) material has been designated as “relevant” by the Secretary; (ii) the IAA must have regard to that material; (iii) the information is prejudicial to the applicant; and (iv) that information is hidden from the applicant. A fair-minded lay observer may well ask why prejudicial information is provided and hidden from the applicant, if that information was not to be taken into account. In those circumstances, the fair-minded lay observer might apprehend that the decision-maker might decide the case other than on its merits.

(Emphasis in original.)

130    Edelman J referred to three matters which, in his Honour’s view, combined to compel the conclusion that a fair-minded lay observer might reasonably apprehend that the IAA might not have brought an impartial and independent mind to the issue to be decided (at [137]).

(a)    First, the material provided by the Secretary to the IAA was “qualitatively and quantitatively significantly prejudicial to an assessment of the appellant’s character on grounds other than legal grounds” (at [138]). That which was prejudicial and irrelevant formed a significant proportion of what the Secretary had provided.

(b)    Secondly, the fair-minded observer would expect the IAA to be aware that the material was being provided on the footing that the Secretary considered it relevant to the review and that the IAA was required to consider that material (at [140]). The IAA, although it was expected to make its own assessment, was an arm of the executive government; and the apparent assessment of the material as relevant by the Secretary might be expected at least subconsciously to have an influence on the IAA.

(c)    Thirdly, the IAA affirmed in its reasons that it had had regard to the material referred to it by the Secretary and did not suggest that any of that material was not relevant (at [141]).

131    Reference was also made before the primary judge to FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 and Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534. These cases also involved prejudicial information provided to the IAA, purportedly under s 473CB of the Act, and were decided by reasoning similar to CNY17.

132    As the primary judge observed at [206], each case in this area depends on its own facts. Distinguishing the present case from CNY17 is therefore not sufficient to dispose of the question of apprehended bias. However, the differences are illuminating. The information concerning the rape charges in the present case consisted of one entry in a document (within around 621 pages of material annexed to the departmental submission) which otherwise confirmed the uncontroversial fact that the respondent had a substantial criminal record involving several offences of a sexual nature. Nobody, let alone an officer in a position of authority, did anything to suggest to the Minister that the rape charges were relevant: no attention was drawn to them in the departmental submission or the draft of the statement of reasons; and the Criminal History itself stressed that no conclusion of guilt could be drawn from the fact that charges had been laid. The Minister was not under a statutory obligation to base his decision on material supplied by anybody. The statement of reasons asserted that the Minister had given consideration to the Criminal History but noted only that it listed “convictions”. The natural inference (which a fair-minded observer would draw) is that, if the Minister noted the rape charges, he also noted the statement that no conclusion of guilt could be drawn.

133    The hypothetical fair-minded observer has been said to be “neither complacent nor unduly sensitive or suspicious” (Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [53] (Kirby J); QYFM at [47] (Kiefel CJ and Gageler J), [197] (Edelman J)). This is an aspect of the attribute of fair-mindedness that the observer is taken to possess. In the present case, only a very suspicious observer would perceive more than a faint possibility that the Minister’s reasoning was influenced by the information concerning the rape cases. That faint prospect is not sufficient to give rise to a reasonable apprehension of bias.

134    For these reasons, the notice of contention must fail. The primary judge did not err by rejecting the ground of review alleging apprehended bias, and the ground therefore does not provide an alternative basis for upholding his Honour’s decision.

Disposition

135    The appeal should be allowed. The orders of the primary judge should be set aside and in lieu thereof it should be ordered that the application for judicial review be dismissed.

136    The respondent sought to be heard on costs if the appeal was allowed. I would therefore make orders for the filing of written submissions on costs and for the issue to be dealt with on the papers.

Associate:

Dated:    9 March 2026