FEDERAL COURT OF AUSTRALIA

Roach v Minister for Immigration and Border Protection [2016] FCA 750

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue, quashing the decision of the respondent made on 3 May 2015 under s 501(3) of the Migration Act 1958 (Cth) to refuse the applicant a visa.

3.    A writ of certiorari issue, quashing the decision of the respondent made on 29 June 2015 under s 501C(4) of the Migration Act 1958 (Cth) not to revoke the decision referred to in Order 2.

4.    A writ of mandamus issue, requiring the respondent determine the applicant’s application for a Five Year Resident Return (Class BB) visa according to law.

5.    The question of costs is reserved.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1.1    The issues

1    The applicant, Daniel Roach, is a citizen of the United Kingdom. He was 17 years of age when he arrived in Australia on 17 November 1991 as the holder of a Class 105 Concessional Family visa. That visa was granted to him as a member of the family unit of his parents and two siblings and allowed him to reside permanently in Australia.

2    On 19 January 2010, the applicant was granted a Five Year Resident Return (Class BB) subclass 155 visa (a Resident Return visa) which continued his authority to remain in Australia permanently and provided him with authority to re-enter Australia until 19 January 2015. The applicant used that visa to travel outside Australia and return on a number of occasions.

3    On 31 March 2015, the applicant applied for another Resident Return visa. The applicant seeks judicial review under s 476A of the Migration Act 1958 (Cth) (the Act) of two decisions made personally by the respondent, the Minister for Immigration and Border Protection (Minister), while the applicant was abroad with respect to that application, namely:

(1)    the Minister’s decision on 3 May 2015 in the exercise of discretion to refuse the applicant’s application for a Resident Return visa on character grounds without prior notice under s 501(3) of the Act (the refusal decision); and

(2)    the Minister’s decision on 29 June 2015 (notified to the applicant on 2 July 2015) that he was not satisfied that the applicant passed the character test as defined in s 501(6)(b) of the Act with the result that the power to revoke the refusal decision conferred by s 501C(4) was not enlivened (the non-revocation decision).

4    On an application for judicial review, the Court has the capacity to grant relief only where a jurisdictional error is established: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 506 [76] and 509 [86] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). The onus of establishing such an error lies upon the applicant: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 at [166] and [236] (Hely J).

5    By his fourth further amended originating application (the application), the applicant seeks orders in the nature of certiorari to quash the two decisions by the Minister and mandamus requiring the Minister to determine the applicant’s visa application according to law. The applicant contends that the Minister fell into jurisdictional error in his refusal decision in a number of respects which can be summarized as follows:

(1)    Ground 1: the Minister failed to give primary consideration to the best interests of the applicant’s two minor dependent daughters;

(2)    Ground 2: the Minister failed to consider the risk of harm to the Australian community posed by the applicant’s presence in Australia;

(3)    Ground 3: the Minister formed his view that the applicant did not pass the character test on the erroneous basis that the applicant could be a “member of a group” for the purposes of s 501(6)(b)(i) of the Act irrespective of whether he had any sympathy with, or support for, or involvement in, the criminal conduct of which the group was suspected to be involved;

(4)    Ground 3A: the Minister proceeded on the erroneous footing that it was open as a matter of substance for the applicant to satisfy him that he passed the character test;

(5)    Ground 4: the Minister erred in forming a suspicion that the applicant was a member of a group that was “involved in criminal conduct” because he had applied the wrong test, the suspicion was not based on probative evidence, or was illogical, irrational or unreasonable;

(6)    Ground 5: the Minister erred in forming a state of satisfaction as to the national interest;

(7)    Ground 6: the Minister had regard to an impermissible consideration or otherwise acted unlawfully by having regard to information protected from disclosure under s 503A of the Act; and

(8)    Ground 6B: the Minister failed to have regard to the legal consequences of refusing the visa in the exercise of power conferred by s 501(3) of the Act.

6    It is not in issue that if any of these grounds are upheld, the refusal decision and the decision not to revoke the refusal decision would be invalid.

7    In the alternative, even if the refusal decision is valid, the applicant submits that the non-revocation decision is invalid on the ground that the Minister unlawfully failed to afford procedural fairness and give particulars of the relevant information (Ground 8). If so, the applicant contends that the Minister’s non-compliance with his obligations in making the non-revocation decision would also vitiate the exercise of power under s 501(3) to make the refusal decision (Ground 6A). In this regard, I note that the applicant accepted that particulars (ii) and (iii) of ground 8 (that s 503A did not mean that disclosure of the protected information was not a condition of the valid exercise of the revocation power in s 501C(4)), must be decided against him by reason of the decision in Vella v Minister for Immigration and Border Protection [2015] FCAFC 53; (2015) 230 FCR 61 (Vella). Rather, the particulars were advanced in order to protect the applicant’s position in the event that the High Court granted special leave to appeal the decision in Vella. Special leave to appeal, however, was refused by the High Court on 16 October 2015: Vella v Minister for Immigration and Border Protection [2015] HCA Trans 263.

8    Grounds 6, 6A and (what remains in) 8 turn on the question of whether s 503A(2)(c) of the Act infringes Chapter III of the Constitution and, subject to whether it can read down within constitutional limits, is invalid. Notice of a constitutional matter was given in accordance with s 78B of the Judiciary Act 1903 (Cth). None of the Attorneys-General of the Commonwealth, the States or the territories sought to intervene.

9    Finally, by Ground 7 the applicant alleged that the Minister’s non-revocation decision proceeded on the same erroneous construction of the term “member of a group” in s 501(6)(b)(i) of the Act as pleaded in ground 3. However, in his non-revocation decision, the Minister found that there was no reason to depart from his previous findings as the representations did not dispute his previous finding that the applicant does not pass the character test; “nor do they provide information or comment as to whether Mr ROACH is or has been a member of an organisation involved in criminal activites [sic] or whether that organisation is or has been involved in criminal activities.” (emphasis added). In so finding, the Minister appears to have acted on the misapprehension that he had found in the refusal decision that the applicant was a member of an organisation rather than a group. The applicant did not allege that this error sounded in any ground of judicial review but ultimately submitted at the hearing that for his purposes, it was sufficient that in making the refusal decision, the Minister relied upon the concept of a group.

1.2    Summary of conclusions

10    For the reasons that follow, I find that the refusal decision is invalid on the ground that the Minister failed to have regard to a relevant consideration in a jurisdictional sense, namely, the risk of harm posed by Mr Roach to the Australian community, when exercising his discretion under s 501(3) of the Act (ground 2). It follows that the non-revocation decision is also invalid as the exercise of the power not to revoke the refusal decision was premised on the existence of a prior valid decision.

11    Further and in any event, I consider that the Minister fell into jurisdictional error in the refusal decision in failing to have regard to certain legal consequences of refusing the visa application under s 501(3) (ground 6B). The legal consequences were that, by refusing the visa under s 501(3) without notice to the applicant, the Minister would have no discretion to revoke the refusal decision under s 501C(4) if he was still not satisfied that the applicant passed the character test after receiving representations from him. As such, at no stage would the applicant be afforded any opportunity to be heard on the exercise of discretion determined adversely to him in the refusal decision, in contrast to the position where the Minister chooses to proceed relevantly under the alternative mechanism for refusing a visa on character grounds in s 501(1).

12    The remaining grounds of the application should be dismissed save that, in circumstances where the relief sought would lie in any event, it would be inappropriate for me to embark upon a consideration of the questions of constitutional invalidity raised by grounds 6, 6A and 8 of the application for reasons I later explain.

1.    EVIDENCE

13    No evidence was led by the applicant. The Minister led evidence comprising the notices of the two decisions given to the applicant, together with the attachments to those notices. The attachments included the issues papers prepared by the Department of Immigration and Border Protection (Department) for each decision, the Minister’s statements of reasons in each decision, and information relevant to those decisions. Further, in the case of the non-revocation decision only, the issues paper also attached correspondence from the applicant’s wife enclosing a folder which contained a large number of supporting documents: see further below at [51].

14    This constituted the totality of the material before the Minister in relation to the decisions aside from material which was protected under s 503A of the Act contained in Attachment X to each of the issues papers (the protected material). The protected material has not at any time been provided to the applicant or his legal representatives; nor has its substance been disclosed to them. This material is not before the Court.

2.    THE STATUTORY FRAMEWORK

15    The object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens” (s 4(1)). It is not in dispute that the applicant is a non-citizen. The object in s 4(1) is advanced under the Act by making provision for the grant of visas permitting non-citizens to enter or remain in Australia. As s 4(2) makes express, the Parliament intends that the Act be the sole source of the right of non-citizens to enter or remain in Australia.

16    A non-citizen in the migration zone is a lawful non-citizen if she or he holds a visa that is in effect, absent which the non-citizen is an unlawful non-citizen (ss 13(1) and 14(1) of the Act). Subject to the Act, the Minister may grant a non-citizen a visa under ss 29(1). A non-citizen who wants a visa must apply for a visa of a particular class (s 45). The Minister must grant a visa if satisfied that the criteria are met including, importantly, that the grant of the visa is not prevented by s 501 of the Act and, if not so satisfied, must refuse to grant the visa (s 65(1)(a) and (b) of the Act).

17    Section 501(1) and (2) of the Act in turn relevantly provide that:

Decision of Minister or delegate—natural justice applies

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

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

(2)    The Minister may cancel a visa that has been granted to a person if:

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

(b)    the person does not satisfy the Minister that the person passes the character test.

18    Each of these powers may be exercised by the Minister personally or by her or his delegate and involve the exercise of discretion. Where the power under s 501(1) or (2) is exercised, the individual concerned is afforded natural justice.

19    In the alternative, the Minister may decide to exercise the power under s 501(3) of the Act which provides that:

Decision of Minister—natural justice does not apply

(3)    The Minister may:

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

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

if:

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

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

20    The power under s 501(3) may be exercised only by the Minister personally (s 501(4)) and is enlivened only “if” the two preconditions in subs (c) and (d) are met. Nonetheless, the Minister is not required to cancel or to refuse to grant the visa where those preconditions are met. Rather, it is apparent from the terms of s 501(3) and, in particular from the use of the word “may”, that the section confers a discretion upon the Minister to refuse to grant, or to cancel, a visa in common with s 501(1) and (2). In the exercise of that discretion, the Minister acting personally is not bound by directions made under s 499 of the Act: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (NBMZ) at 4 [6] per Allsop CJ and Katzmann J.

21    Importantly, as the subsection heading to the provision states, where the Minister relies upon s 501(3) neither the natural justice hearing rule nor the code of procedure set out in Subdivision AB of Division 3 of Part 2 apply by virtue of s 501(5) of the Act. Absent a clear contrary legislative intention, the natural justice hearing rule requires that a person whose interests are likely to be affected by an exercise of power is entitled to be appraised of relevant matters adverse to her or his interests which the decision-maker proposes to take into account in the exercise of the power, so that that person may have the opportunity of dealing with them: Kioa v West (1985) 159 CLR 550 at 582 (Mason J) and 628-629 (Brennan J).  

22    At the time of the refusal decision and the non-revocation decision, s 501(6) provided that a person does not pass the character test where, among other things:     

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

(b)    the Minister reasonably suspects:

(i)    that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; or

…

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

    the person is not of good character; or

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

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

        (iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

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

23    Section 501(6)(b) is the provision in issue here and following amendments in 2014, is comprised of two alternative limbs: that the person is suspected of having been or being a member of a group or organisation suspected of involvement in criminal conduct (the membership limb); or that the person is suspected of having had or having an association with such a group or organisation (the association limb).

24    While a decision under s 501(3) to refuse or cancel a visa is made without notice, provision is made in s 501C for a visa applicant subsequently to seek revocation of that decision to cancel a visa. Specifically, as soon as practicable after making the original decision, the Minister must give the non-citizen a written notice that “sets out the original decision” together with particulars of the “relevant information” and inviting representations from the non-citizen (s 501C(3)). “Relevant information” is defined to mean:

(1)    information, other than non-disclosable information (as explained below), which the Minister considers “would be the reason, or a part of the reason, for making the original decision” (s 501C(2)(a)) (emphasis added); and,

(3)    is specifically about the person or another person, and not just a class of persons of which the person or other person is a member (s 501C(2)(b)).

25    “Non-disclosable information” is defined in s 5(1) as meaning:

… information or matter:

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

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

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

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

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

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

26    I note that the wording of the first limb of the definition of “relevant information” is somewhat inapt given that the Minister must already have made the refusal or cancellation decision when she or he is required to give the relevant information to the visa applicant under s 501C and so must know her or his reasons for so doing: see also Graham v Minister of Immigration and Border Protection [2016] FCA 682 (Graham) at [64] (Tracey J). The wording used reflects that employed in other provisions where procedural fairness is accorded to a person before a decision is made and the actual reasons are unknown (see e.g. s 359A(1)(a)).

27    I also note that the restriction of relevant information in the written notice of the decision to that which is specifically about the person is apparently modelled on other provisions of the Act such as s 359A(4)(a). In contrast however to the scheme where a decision is made under s 501C, the person would be entitled to a hearing and to a set of reasons which would include information about a class of persons and any other information where that formed part of the reasons for the decision under the scheme of which s 359A and like provisions form a part. Again, the legislator appears with respect to have transposed a requirement prescribed in one context into another context without necessarily appreciating the differences and the consequences for the individual.

28    The Minister must also invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision (s 501C(3)(b)). A period of seven days within which to respond is afforded by reg 2.52(2) of the Migration Regulations 1994 (Cth) which does not discriminate between cases where the person is within Australia or outside of the country. In this regard, it is unfortunate that the statutory provision does not require identification of the issues which the individual concerned must address if she or he decides to make representations. When given such material without a further clear explanation, the implication which no doubt many individuals would draw, in common with the applicant, is that they could make representations on all of the matters considered by the Minister in the refusal decision. Yet, as I explain below, that is not in fact the case. The subject of representations which may bear upon the question of revocation of the refusal decision is limited to addressing the question of whether an applicant satisfies the character test (see further below at [55] and [93]).

29    The power to revoke the refusal decision is conferred by s 501C(4) and is exercisable again only by the Minister personally by virtue of s 501C(5). Subsection (4) provides that:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the person satisfies the Minister that the person passes the character test (as defined by section 501).

As I later explain, the Minister has no discretion to revoke a decision under s 501(3) and can (and must) do so only where s 501C(4)(a) and (b) are met.

30    Finally, if information is communicated to the Minister or an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under (relevantly) ss 501 or 501C of the Act, the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal or any other body or person: ss 503A(1) and (2). As such, this statutory proscription against disclosure purports to immunise even production of protected information through court processes. Those agencies which may be gazetted agencies include agencies responsible for law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in Australia (s 503A(9)). Power is conferred by s 503A(3) upon the Minister to declare that s 503A(1) and (2) do not prevent disclosure of specified information in specified circumstances to a specified Minister, specified Commonwealth officer or a specified court or tribunal. However, the Minister must first consult the gazetted agency from which the information originated and has no duty to consider whether to exercise the power in s 503A(3) of the Act in the first place (s 503A(3A)).

31    Unlike non-disclosable information, information protected by s 503A is not expressly exempted from disclosure pursuant to the obligation in s 501C(3). Nonetheless, s 503A operates across the entire statutory scheme including to s 501C(3): Vella at 79 [72]-81 [83] (Buchanan, Flick and Wigney JJ). The purpose of the protection afforded by s 503A is, as the Full Court held in Vella, to ensure that the confidentiality of information conveyed to the Minister in accordance with the provision is maintained (at 78 [70]). As such, s 503A and the scheme relating to non-disclosable information are plainly intended to operate so as to abrogate the natural justice hearing rule. The extent to which s 503A and the requirement not to disclose non-disclosable information apply so as in fact to deprive a person of an opportunity to be heard in compliance with the requirements of natural justice will turn on the facts of the individual case.

3.    BACKGROUND

3.1    The application for a Resident Return visa

32    As earlier noted, on 31 March 2015, the applicant applied for a Resident Return visa. The applicant departed for Thailand allegedly for a fitness training tour with a group of clients on 10 April 2015 before providing the necessary police clearance and before his visa application was decided. It appears that he intended to return on 23 April 2015. In his submission to the Minister on the non-revocation decision, the applicant alleges that he left Australia based upon assurances by the Department that a 30-day extension could be granted if the Resident Return visa processing had not been finalised before his departure.

3.2    The refusal decision

3.2.1    The material before the Minister

33    An issues paper (the first issues paper) prepared by the Department was before the Minister at the time that he made his decision to which a number of documents were attached. These comprised the following:

(1)    Attachment A: movement records of the applicant identifying occasions on which the applicant used his visa to travel outside Australia and return for short periods.

(2)    Attachment B: Australian National Police Certificate dated 16 April 2015.

(3)    Attachment C: Strong and Secure: a Strategy for Australia’s National Security, a publication of the Australian Government Department of the Prime Minister and Cabinet, which explains Australia’s national security framework and examines the strategic outlook and sets priorities. The key national security activities identified included preventing, detecting and disrupting serious and organised crime as well as, for example, countering terrorism, espionage and foreign interference, and preserving Australia’s border integrity.

(4)    Attachment D: A press release of the ACC Media Centre, Serious and Organised Crime Coordination Committee entitled “National task force to set its sights on OMCGs: Serious and Organised Crime Coordination Committee”, dated 20 September 2014.

(5)    Attachment E: An ‘ICSE’ printout dated 21 March 2005 disclosing that the applicant had changed his name in 2001 but obtained a UK passport in 2002 in the name of Roach.

(6)    Attachment F: The applicant’s Application for a Class BB Five Year Resident Return lodged on 31 March 2015.

(7)    Attachment G: A news article published in The Courier entitled “Bikie fined for Bandido funeral ride” dated 21 May 2009. The article stated that police and a reporter had photographed the applicant riding a Harley Davidson motorbike among a large contingent of Bandido Motorcycle Club members on 31 October and that the applicant subsequently pleaded guilty to charges of unlicensed driving and using an unregistered vehicle on a highway.

34    While Attachment X was also provided to the Minister, the first issues paper explained that the information in that attachment is protected from disclosure under s 503A of the Act.

35    The first issues paper advised the Minister first that in light of all of the above material, being the open source information at Attachments C and D and the information at Attachment X:

…it is open for you to reasonably suspect that Mr ROACH has been or is a member of a group and that the group has been or is involved in criminal conduct.

Finding

15.      In light of the above, it is open to you to reasonably suspect that Mr ROACH does not pass the character test by virtue of paragraph 501(6)(b) in that you may reasonably suspect that he has been or is a member of a group and that group has been or is involved in criminal conduct.

36    Secondly, the first issues paper explained that in determining whether refusal was in the national interest, it was the interests of Australia as a whole which were to be considered. In this regard, the issues paper drew the Minister’s attention to the following:

19.    In considering the national interest you may wish to note that on 23 January 2013 the Australian Government launched Australia’s first National Security Strategy, Strong and secure: a strategy for Australia’s National Security, to provide an overarching framework to guide Australia’s security effort over a five-year period. The strategy recognises that preventing, detecting and disrupting serious and organised crime is one of eight key pillars to securing the nation and its citizens. Attachment C

20.     You may also wish to note that the Commonwealth Organised Crime Strategic Framework provides an integrated and collaborative national approach to disrupting, investigating and prosecuting organised crime as an issue of national security. In 2014, as part of this national approach, the Serious and Organised Crime Coordination Committee established a national task force named Operation Morpheus. Operation Morpheus combines the work and resources of Australian law enforcement and Commonwealth agencies to investigate, disrupt, disable and dismantle the criminal activity of Australia’s highest risk OMCGs [i.e. outlaw motorcycle gangs] and their members. Attachment D

21.    In considering the national interest in this case you may also wish to take into account information that is protected under section 503A of the Act Attachment X.

22.    Based on all of the above information, it is open for you to conclude that the refusal of Mr ROACH’s visa application without prior notice on the basis of his suspected membership of a group involved in criminal conduct is in the national interest, insofar as preventing such people from residing in the Australian community will assist to disrupt, disable and dismantle such groups.

37    The first issues paper advised that if the applicant made submissions about possible revocation of the decision, the Minister may revoke that decision if he satisfies the Minister that he passes the character test and at [25] that:

If having considered the information before you, you reasonably suspect that Mr ROACH does not pass the character test and you are satisfied that the refusal of his visa application is in the national interest, you may refuse the visa application under subsection 501(3) of the Act.

38    Thirdly, with respect to the exercise of discretion, the first issues paper addressed what were described as relevant considerations, namely:

(1)    the consequences of refusal, advising that given the length of time the applicant has resided in Australia (approximately 24 years) and his family links here, it was open to the Minister to find that refusing the application would have a serious and immediate impact on the applicant personally and on his family; and that, as the applicant was in Thailand, he may face significant difficulties in making arrangements to travel to his country of nationality, the United Kingdom;

(2)    the best interests of minor children;

(3)    the impact on immediate family in Australia, advising that it was open to the Minister to find that refusal would be likely to cause “significant emotional harm to members of his family in Australia. In addition you are free to consider that his spouse may also suffer financial hardship and the loss of practical assistance provided by Mr ROACH in the parenting of their children”; and

(4)    impediments that the applicant may face if required to reside in his home country.

39    More specifically with respect to the second of these considerations, the first issues paper advised that:

28.    Article 3 of the United Nations Convention on the Rights of the Child, to which Australia is a party, provides that:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

29.    The High Court has held that there is a legitimate expectation that administrative decision-makers will act in conformity with Article 3 of the Convention and that failure to do so would be a breach of the requirements of procedural fairness (unless the person affected is given notice that the decision-maker proposes to make a decision without treating the best interests of children as a primary consideration and an opportunity to present a case against the taking of such a course).

30.    A number of decisions by the Federal Court in the character context have emphasised the importance of clearly identifying how the best interests of children would be affected by a decision to refuse a visa. The decision-maker must confront the question of what the best interests of the (affected) children require with respect to the exercise of the discretion to refuse and then assess whether the strength of any other considerations outweigh the consideration of the best interests of the children understood as a primary consideration. The weighing of other considerations is in recognition of the fact that the best interests of any affected children are a primary, not the only, or the only primary, consideration.

31.    Information held by the Department indicates that Mr ROACH has two minor Australian citizen children: … (aged 13)… [and] (aged 9). Further information about his relationship with the children is not held at this time. In the absence of any information to the contrary, it is reasonable to expect that Mr ROACH carries out the normal parental role and responsibilities of a father towards his 2 minor children.

(emphasis added.)

40    The issues paper concluded with respect to this issue that “[o]n this basis, it is open to you to find that it would be in the best interests of [the applicant’s two minor daughters]… not to refuse his visa application” (at [33]).

3.2.2    The Minister’s reasons for the refusal decision

41    The Minister personally refused the application for a Resident Return visa under s 501(3) of the Act on 3 May 2015 without notice to the applicant on the ground that he reasonably suspected that the applicant did not pass the character test and he was satisfied that refusal of the visa was in the national interest.

42    In his statement of reasons, the Minister first explained that he had taken into account material supplied to him that was protected information under s 503A and could not for that reason be disclosed to the applicant for comment. The Minister found that that information was relevant in considering the character test and the national interest in relation to Mr Roach: Minister’s reasons at [4].

43    Secondly, with respect to the question of whether the applicant passed the character test, the Minister found that, “I reasonably suspected that Mr ROACH does not pass the character test by virtue of paragraph 501(6)(b) in that I reasonably suspected that he is a member of a group and that group is involved in criminal conduct”: Minister’s reasons at [5]. The Minister stated that that finding was based on the open source material at Attachment G of the issues paper, being the news article in the Courier, and the protected information in Attachment X.

44    Thirdly, in considering whether refusal of the applicant’s visa application was in the national interest, the Minister stated that he had considered the National Security Strategy and the National Task Force Operation Morpheus established by the Australian Crime Commission’s Serious and Organised Crime Coordination Committee and that he gave consideration to “all of the information before [him], in particular the information protected from disclosure under section 503A” (emphasis added). In light of this material, the Minister concluded at [9] of his reasons that:

…the refusal of Mr ROACH’s visa application without prior notice on the basis of his suspected membership of a group suspected of being involved in criminal conduct is in the national interest, insofar as preventing such people from residing in the Australian community will assist to disrupt, disable and dismantle such groups.

45    The Minister concluded on this issue that he was satisfied that it was in the national interest that he refuse the applicant’s application for a visa under s 501(3)(a) of the Act, stating at [11] of his reasons that:

I concluded that the information before me raises concerns that are of such a serious nature that the use of my discretionary power to refuse Mr ROACH a Class BB Five Year Resident Return Visa, without prior notice, is in the national interest. I reached this view notwithstanding that Mr ROACH has resided in Australia for a lengthy period of time and has substantial ties to Australia inclusive of a partner, two minor Australian children and extended family and social networks.

46    Fourthly, having found that these criteria were met, the Minister found that his discretion under s 501(3) of the Act was enlivened. In considering whether he should exercise his discretion to refuse to grant the visa, the Minister considered whether there were relevant considerations that might support not refusing the applicant’s visa application despite the Minister’s satisfaction that it was in the national interest to do so, as follows.

(1)    With respect to the best interests of the applicant’s children, the Minister found at [13] that:

I gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests would be affected by a refusal of Mr ROACH’s visa application. In relation to this I note that Mr ROACH has two biological minor children… aged 13 years and… aged nine years, both of whom are Australian citizens. I accept that Mr ROACH carries out the normal parental role and responsibilities of a father towards his two minor daughters.

On this basis the Minister accepted that it was in the best interests of the applicant’s two daughters not to refuse his visa application (at [15]).

(2)    The Minister also noted “the serious and immediate impact” on the applicant and his family and in particular “the significant emotional harm likely to be suffered by his immediate family members in Australia, including his partner… his parents and siblings.” (at [16]).

(3)    The Minister also considered “the financial hardship and the loss of practical assistance that Mr ROACH’s partner would endure should his visa be refused” (at [16]).

(4)    The Minister had regard to the fact that the consequence of deciding to refuse his application would be that the applicant would be unable to travel to and re-enter Australia and he may also face difficulties in travelling to the United Kingdom from his current location (at [19]).

47    The Minister concluded at [20]:

Having given full consideration to all relevant matters, I reasonably suspect that Mr ROACH does not pass the character test and I find it is in the national interest to refuse his visa application. I considered the best interests of Mr ROACH’s minor children as a primary consideration, and I also considered the countervailing considerations in this case, including his length of residence and significant ties in Australia inclusive of familial, social and employment bonds. Notwithstanding, I find that the primary consideration regarding the best interests of his two minor daughters and countervailing considerations in this case are outweighed by Mr ROACH’s suspected membership of a group that is suspected of being involved in criminal conduct and I have decided to exercise my discretion to a (sic) refuse Mr ROACH’s Class BB Five Year Resident Return visa application under paragraph 501(3)(a) of the Act.

3.2.3    Notice of the refusal decision and accompanying materials given to the applicant

48    Written notice of the Minister’s refusal decision was provided to the applicant by email on 4 May 2015, which was accompanied by a statement of reasons and the first issues paper together with the attachments to that letter save for Attachment X. With respect to the latter, the covering letter from the Department dated 4 May 2015 to the applicant explained that “[a]s noted in the statement of reasons, some [sic] the information that was considered by the Minister is protected under section 503A of the Act and this information cannot be disclosed to you.”

49    After explaining that “under section 501C of the Act, the Minister has the power to revoke his own decision if you are able to satisfy him that you pass the character test (which, as indicated above, is defined in subsection 501(6) Act…)”, the letter invited the applicant:

…to make representations to the Minister about the possible revocation of his decision to refuse your visa application. If you wish to do so, subsection 501C(3) and regulation 2.52 of the Migration Regulations 1994 require your representations to:

•    be made within seven (7) days of you being given this notice;

...

•    contain a statement of the reasons on which you rely to support the representations.

As this notice was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

You may include documents to support your representations…

50    The letter did not specifically alert the applicant to the fact that any representations other than those directed to whether or not he passed the character test as defined were not relevant.

3.1    The non-revocation decision

3.1.1    The materials before the Minister

51    As mentioned, in response to the invitation to make representations the applicant’s wife provided a folder containing the following:

(1)    a personal statement from the applicant making submissions as to why the refusal decision should be revoked;

(2)    certificates and other statements pertaining to training and qualifications achieved by the applicant;

(3)    letters of support (including from his wife and their daughters then aged 13 and 9);

(4)    a family photograph;

(5)    medical evidence of his wife’s medical condition and needs;

(6)    character references;

(7)    photographs of notes made on the applicant’s travel documents at the time of his departure from Australia; and

(8)    statutory declarations made on the applicant’s behalf.

52    It appears, as the applicant submitted, that the representations were prepared without the benefit of legal advice. The many letters of support provided by family, friends and community members were to the effect that the applicant is a hard-working man of integrity who is devoted to his family and is a well-respected member of his local community. The representations also made it clear that the applicant’s wife suffers from severe and chronic health problems and that his family was wholly financially dependent upon him, with his wife being unable to work due to her health problems. The applicant submitted that the long term effects of refusing his visa application would be “unbearable for both my kids my wife and myself”. The letter from the applicant’s 13 year old daughter also exposed the risk that she may have to look after her younger sister and her mother, if her father did not return. Similarly, the applicant’s nine year old daughter said that “[w]hen my mum is sick he looks after me he takes me to school cooks us dinner and looks after mum.”

53    The representations also included a letter from the applicant’s former legal representative concerning the incident reported in the 2009 Courier article in Attachment G. In particular the legal representative noted that the circumstances of the offences of riding a motorcycle whilst unlicensed and riding an unregistered motorcycle were that “Mr Roach was apprehended riding a borrowed motorcycle in a guard of honour during a funeral possession [sic] for a close friend of his who had died suddenly.”

54    The second issues paper prepared by the Department for the Minister in relation to the non-revocation decision contained a detailed summary of the representations made in this material. It observed that in making the refusal decision, the Minister had relied “mainly on information protected under s 503A” (emphasis added).

55    While the second issues paper stated that it was open to the Minister to conclude that the applicant made representations in accordance with the invitation as required under s 501C(4)(a) of the Act, it also noted significantly that those representations did not address whether or not the applicant is a member of an organisation involved in criminal activities or whether that organisation is or has been involved in such activity. This was in fact the only issue before the Minister at this stage of his decision-making process. It followed that the representations to the Minister made by and on behalf of the applicant failed to address the relevant issues as understood by the Minister and the Department: see further at [93] below. In so saying, I imply no criticism of the applicant. The letter from the Department was less than clear as to the matters which the applicant had to address and not surprisingly he appears to have assumed that it was open to him to address the totality of the issues considered by the Minister in his refusal decision.

56    The Department further advised the Minister in the issues paper that:

24.    It is open to you to conclude, after considering Mr ROACH’s revocation request, that his representations have not satisfied you that he passes the character test (as defined by section 501, specifically subsection 501(6)(b)).

25.    If you do so conclude, the requirements of s501C(4)(b) of the Migration Act are not met and therefore the power to revoke the s501(3) visa refusal decision under s501C(4) is not enlivened.

3.1.2    The Minister’s reasons for the non-revocation decision

57    The record of decision signed by the Minister and dated 29 June 2015 stated that:

I have considered all relevant matters including an assessment of the character test as defined by s501 of the Migration Act 1958, and all evidence before me provided by, on behalf of, or in relation to Daniel Joseph ROACH in connection with the possible revocation of the visa refusal decision regarding his application for a Five Year Resident Return Class BB visa application without natural justice under s501(3)(a) of the Migration Act.

58    The Minister circled the non-revocation outcome which stated that:

Mr ROACH has made representations to revoke the s501(3) visa refusal decision. I am not satisfied that Mr ROACH passes the character test (as defined by section 501). Accordingly, s501C(4)(b) is not satisfied, the power in s501C(4) is not enlivened and it is not open to me to exercise the power in s501C to revoke the s501(3) visa refusal decision regarding Mr ROACH’s Five Year Resident Return Class BB visa application. My reasons for this decision are set out in the attached Statement of Reasons.

59    In his reasons, the Minister found that the applicant had made representations in accordance with the invitation for the purposes of s 501C(4)(a) of the Act. However, the Minister found that:

8.    The representations consisted of a large number of documents from different persons. I consider that the content of the representations may reasonably be summarised as follows: that the decision to refuse Mr ROACH’s visa should be revoked because

•    Mr ROACH’s wife and children need his financial, emotional and psychological support for the foreseeable future.

•    It is in the best interests of his [two] daughters … that Mr ROACH is able to resume residence in Australia.

•    Mr ROACH is well-regarded in the local community and has helped many people in various ways.

•    When he was departing Australia on 10 April 2015, Mr ROACH was assured by a Departmental officer that he would be able to re-enter Australia.

9.    I have considered the representations. For the purposes of the exercise of my discretion under s501C(4), I do not consider it necessary to make any findings on the matters raised in the representations, as broadly summarised above, since they do not address the character test.

10.    The representations do not dispute my previous finding that Mr ROACH does not pass the character test as defined in s501(6)(b), nor do they provide information or comment as to whether Mr ROACH is or has been a member of an organisation involved in criminal activities or whether that organisation is or has been involved in criminal activities.

11.    Accordingly I find no reason to depart from my previous findings against the character test and Mr ROACH has not satisfied me that he passes the character test.

(emphasis added.)

60    The Minister concluded by deciding not to revoke the decision refusing the applicant’s application for a visa.

1.    CONSIDERATION: VALIDITY OF THE REFUSAL DECISION UNDER S 501(3)

1.1    Introduction

61    Before turning to the remaining grounds, it is convenient first to consider grounds 2 and 6B as, for the reasons set out below, the applicant has established that the Minister’s decision is invalid on these grounds.

1.1    Failure to consider risk of harm to the Australian community posed by the applicant’s presence in Australia (ground 2)

1.1.1    The issues

62    The applicant identifies ground 2 of the judicial review application as involving two propositions:

(1)    first, the Minister was obliged to consider the risk of harm to the community posed by the applicant’s presence; and

(2)    secondly, the Minister in fact failed to consider that risk.

63    As to the first proposition, the applicant relies upon the Full Court’s decision in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 (Moana) in support of the proposition that the Minister was under a duty to “consider whether there [was] a risk to the of harm to the Australian community posed by the continued presence of [Mr Roach] in Australia and to take into account any such risk” (citing Moana at [1] and [66], and Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 (Tanielu) at [101]-[152]).

64    As the Full Court observed in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 (Ayoub) at 522 [33], different views have been expressed by different judges of this Court as to whether the risk of harm to the Australian community is a mandatory relevant consideration: see also Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22] (the Court). The relevant authorities are explained in Ayoub at 522 [34]- 525 [38]. In Ayoub, the Full Court stated that it had reservations about the concern expressed by Mortimer J in Tanielu at 450 [123] to incorporate the risk of harm to the Australian community as “an integral aspect of the exercise of the power in s 501(2)”, despite the majority in Moana following this aspect of Tanielu: Ayoub at 525 [37]. However, the Full Court in Ayoub ultimately found it unnecessary to resolve the question of whether, as the Minister submitted, Moana was plainly wrong and should be overruled: Ayoub at 525 [39].

65    The Minister made a formal submission that the decision in Moana was plainly wrong and should be overruled, acknowledging that, as a single judge, I am bound to apply the decision in Moana unless it is distinguishable: Berryman v Minister for Immigration and Border Protection [2015] FCA 616; 235 FCR 429 at 435 [20] (Flick J). The Minister’s primary submission therefore is that the decision in Moana is distinguishable.

1.1.2    The decision in Moana

66    Moana concerned a challenge to a decision by the Minister personally to cancel the appellant’s visa under s 501(2) of the Act. The Minister found that the appellant had a substantial criminal record and therefore failed the character test under s 501(6). The Minister decided to exercise his discretion to cancel the visa on the ground that the appellant represented an unacceptable risk of harm to the Australian community and the protection of the Australian community outweighed any countervailing considerations in the appellant’s favour.

67    In Moana, Rangiah J (North J agreeing; Jessup J dissenting) agreed with Mortimer J in Tanielu that the risk of harm to the Australian community posed by the continued presence of the visa holder in Australia is a consideration that a decision-maker, including the Minister personally, is bound to take into account in exercising the discretion under s 501(2) but did so for reasons that differed, in certain respects, from those of Mortimer J (at 378 [48]). In reaching this view, Rangiah J rejected the assumption said to underlie Minister’s submissions that the threshold question of whether the person satisfies the character test is entirely divorced from the exercise of discretion as to whether to cancel the visa. Rather, his Honour held that “the Minister's consideration of the character test necessarily informs his consideration of the discretion. It is the relationship between the threshold question and the discretion in the exercise of a single power that leads me to conclude that risk to the Australian community is a mandatory relevant consideration” (at 378-379 [49]).

68    In so finding, his Honour first agreed (at 379 [50]) with Mortimer J in Tanielu that:

… each of the criteria set out in s 501(6) which may cause a person to fail the character test involves protection of the Australian community, in the sense of protection against some kind of harm, disadvantage or unacceptable or undesirable consequence arising from allowing a person to enter or remain in Australia.

See also Moana at 380 [56].

69    Thus, for example, his Honour held that it is implicit in s 501(6)(a) of the Act providing that a person with a substantial criminal record does not pass the character test that the “presence in Australia of a person with a substantial criminal record poses or may pose some risk of harm to the Australian community or a segment of it. The risk is that such a person may engage in criminal conduct in the future” (at 379 [51]). Similarly, with respect to s 501(6)(b) as at the relevant time (i.e. before the amendments in 2014), Rangiah J held at 379 [53] that:

Paragraph (b) of s 501(6) applies to a person with an association with a person, group or organisation whom the Minister reasonably suspects has been or is involved in criminal conduct. The association must involve some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation, such as to have some bearing on the person's character: Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at [131]-[132] per Black CJ, French and Weinberg JJ. It is implicit in para (b) that such a person may pose a risk of harm to the Australian community.

70    Secondly, Rangiah J held at 380 [57] with respect to the relationship between the threshold test and the discretion that:

…it is unlikely that Parliament intended that the Minister must consider under para (a) of s 501(6) whether the person has a substantial criminal record, but be free to choose whether to take into account that criminal record when exercising the discretion. It is unlikely that Parliament intended to require that the Minister must, for the purposes of para (c), consider whether the person is not of good character having regard to the person's past and present criminal conduct or general conduct or both, but not also require the Minister to have regard to that conduct when exercising the discretion. A similar conclusion may be reached concerning each of the other paragraphs of s 501(6) ...

71    His Honour concluded at 380 [58]-[60] that:

The common thread that underlies each of the criteria in s 501(6) is the risk of harm posed by a person coming into or remaining in the Australian community. In every case, the Minister's consideration of the character test necessarily involves consideration of the risk of harm, whether that consideration is undertaken by actively assessing the risk under paras (b), (c) and (d) or is implicit in the making of a finding that para (a) or para (aa) or para (ab) is satisfied. The discretion to cancel a person's visa is enlivened because the person will or may place the Australian community at risk of harm. I do not think that s 501(2) can be interpreted as requiring the Minister to consider the risk of harm at the threshold stage, but leaving it to the Minister to decide whether to take that same risk of harm into account when exercising the discretion.

If it were otherwise, in a case where the Minister concludes at the threshold stage that there is a high risk to the Australian community, it would be open to the Minister to refuse to cancel a visa without any consideration of that risk at the discretionary stage. I do not think that the legislature could have intended that the discretion be so open ended and so devoid of structure as to allow the Minister to ignore a matter that it has required the Minister to consider at an earlier stage of the decision-making process.

My conclusion does not involve conflation of the threshold question and the exercise of the discretion. They are separate questions, but they are linked by the fact that they are stages in the exercise of a single power. It is not as if the risk of harm loses its relevance in between the first and second stages. There would be inconsistency if, in the exercise of that single power, the Minister is required to consider risk to the Australian community at the first stage but is free to choose whether or not to consider the same matter at the final stage.

72    While Moana was concerned with the construction of s 501(6)(a), in deciding how that provision should be construed the majority took into account as a necessary aspect of their reasoning the existence of the “common thread” running through all of the paragraphs of s 501(6) including paragraph (b), being the risk of harm posed by the person to the Australian community. As such, the majority’s construction of s 501(6)(b) in this respect comprised part of the ratio of the majority’s decision: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at 248 [135] (Weinberg J).

1.1.3    Is risk of harm relevant in the context of s 501(3)?

73    The question then arises as to whether the decision in Moana is relevantly distinguishable in the context of s 501(3) of the Act. I do not consider that it is for the following reasons.

74    First, in common with s 501(2), s 501(3) prescribes a two-stage process, being a threshold question as to whether the person satisfies the character test, followed by an exercise of discretion. In so saying, I do not overlook that the threshold question embraces a second requirement, namely, that refusal is also in the national interest.

75    Secondly, it remains the case that the protective purpose identified in Moana, being the protection of the Australian community from harm, continues to underlie s 501(6)(b) following the 2014 amendment. Thus, while under the membership limb of the character test prescribed by s 501(6)(b), it is not necessary for the Minister to consider whether the person is personally involved in or sympathises with the group’s suspected criminal activities (as I find at [147] below), the assumption which underlies that limb is that a person who is a member of such a group potentially poses a risk of harm to the Australian community by reason of that membership if permitted to enter or remain.

76    It follows that the relationship between the threshold question and the discretion which led the majority in Moana to hold that the risk of harm to the Australian community is a mandatory relevant consideration in the exercise of discretion under s 501(2) is present also in s 501(3), notwithstanding the 2014 amendment to s 501(6)(b) enacting the membership limb (see below at [136]).

77    The Minister sought to distinguish Moana on a number of grounds. First, the Minister submitted that, while both s 501(2) and (3) depend upon the Minister being satisfied that the character test in s 501(6) is not met, nonetheless there is:

…a qualitative difference between the act of cancelling a visa – and thereby removing a privilege already granted – and refusing an application for a visa - which involves no removal of any privilege. The so-called ‘protective’ purpose, which was central to the reasoning in Moana, can be seen to be more apt to describe the cancellation regime than the refusal regime. That is, Parliament can be taken to have intended the Minister to be permitted to refuse a visa for purposes other than protective purposes.

78    The submission therefore appears to proceed on the assumption that the “protective” purpose which was key to the reasoning in Moana was the purpose of protecting an existing privilege. That was not, however, the purpose relied upon in Moana, as the passages which I have earlier set out demonstrate.

79    Secondly and in any event, a visa applicant will commonly, as here, be in the position of applying for a visa despite being an Australian resident because her or his prior visa has expired or is about to expire. While, therefore, it may strictly be correct to say that the refusal of an application for a visa does not remove an existing statutory privilege, refusal may nonetheless have equally serious consequences from a human perspective for the visa applicant. As the applicant submitted, “[f]or a person like Mr Roach, who has lived in Australia for decades and has family and friends here, there is no material difference between refusal and cancellation.” Added to this, the power is exercisable where a person is suspected only of membership of a group suspected of criminal activities, there is no express limitation in s 501(6)(b) upon the kinds of criminal offences of which the group is suspected, their seriousness or their extent, and if exercised, the power in s 501(3) deprives the individual concerned of any opportunity to make representations on the exercise of discretion at any stage. Given therefore the breadth of the power in s 501(3) and the drastic consequences of its exercise for the individual, especially when s 501(6)(b) is relied upon, it is unlikely in my view that Parliament contemplated that the Minister could exercise the discretion to cancel or refuse a visa without having regard to the risk of harm posed by that individual: see by analogy Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 at 357 -358 [55] (Sackville J, with whom Black CJ agreed at 349 [7]).

80    Thirdly, it is true, as the Minister submitted, that s 501(2) does not expressly require the Minister to have regard to the national interest and can be exercised by a delegate of the Minister, unlike the power in s 501(3). However, as noted earlier, the object of the Act is to regulate “in the national interest” the entry of non-citizens into Australia (s 4(1)). While the breadth of this object led the majority in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 (Huynh) at 523 [74], to hold that the circumstances of an individual’s offending was not a mandatory relevant consideration in the exercise of discretion to cancel a visa under s 501(2), the later Full Court decision in Moana reached a different conclusion: see Ayoub at 524 [36]; see also Roesner at [22]. In this regard, the Full Court recently indicated that a reconsideration of the views of the majority in Huynh may be required and that the view of Wilcox J in dissent in Huynh may be preferable: NBMZ at 9 [27]. In any event, for the reasons already given, I consider that that tension in the authorities has been resolved so far as a single judge is concerned by Moana which does not suggest that the fact that the Minister may (or by analogy must) have regard to the national interest is inconsistent with the implied obligation to have regard to the risk of harm in the individual case. Nor do I consider that the fact that s 501(3) is exercisable by the Minister alone is a relevant point of distinction either alone or in conjunction with the national interest threshold requirement.

81    Importantly in this regard, the majority in Moana at 381 [61] drew support for their conclusion from the reasoning of Bromberg J in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 (Gbojueh). Gbojueh concerned a challenge to the exercise of the power conferred by s 501A(2) of the Act. That provision confers power solely on the Minister to set aside decisions of a delegate or the AAT not to refuse to grant or to cancel a visa where, in common with s 501(3), the Minister is satisfied that the person does not pass the character test and “the refusal or cancellation is in the national interest”. In Gbojueh, the Minister found that the applicant did not pass the character test by reason of his conviction of and sentencing for serious offences. With respect to the question of whether the Minister was bound generally in the exercise of the power in s 501A(2) to take into account implied mandatory considerations, Bromberg J held (at 426 [43]-[44]) that:

The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister …

The exercise calls for a broad evaluative judgment. It calls for the Minister's satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

(citations omitted)

82    Nonetheless, his Honour found that a consideration of the risk of harm was mandatory for the following reasons (at 427 [45]):

There is however one consideration that is so central to the subject matter dealt with by s 501A(2), that it is difficult to imagine that Parliament did not intend it to be a consideration the Minister is bound to take into account, both for the purpose of determining the national interest and the residual discretion. It is unlikely that the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen was intended as an optional consideration at the Minister's election. In my view, and consistently with the view of the majority (Black CJ and Sackville J) in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346, the Minister is bound to consider that potential for harm to the Australian community in the exercise of the power conferred by s 501A(2).

83    In this regard, his Honour drew a distinction between a determination of the national interest question and the exercise of residual discretion. With respect to the former, Bromberg J held that “whilst the Minister is bound to consider the potential for harm to the Australian community, the broad level at which the question of the national interest may be answered dictates that ‘specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed’ are not factors that the Minister is bound to consider: Gbojueh 427 [49] (quoting at Huynh at [74]). On the other hand, with respect to the exercise of residual discretion, his Honour held that (at 429 [58]):

In my view, where the Minister exercises his discretion under s 501A(2), he is bound to consider the potential for harm to the Australian community should the visa-holder be permitted to remain without ignoring material before him which gives an accurate account of the seriousness of the visa-holder's prior criminal conduct. Such an obligation will extend to a consideration of the circumstances in which the offending occurred, where those circumstances are relevant to the assessment of risk. My view seems at odds with that expressed by the majority in Huynh but consistent with the reasoning of the majority in Lu.

84    Accordingly, despite the fact that the power in s 501A(2) was exercisable by the Minister alone and that the Minister was required to have regard to the national interest as a threshold question, Bromberg J in Gbojueh (which was approved in Moana) held that the Minister was required to have regard to the risk of harm posed by the individual in the exercise of the residual discretion. Equally it must follow on the present state of the authorities that the existence of those features in s 501(3) does not provide a basis for distinguishing the decision in Moana that the Minister must consider the risk of harm to the Australian community in the exercise of her or his residual discretion. Moreover, while a determination of the national interest requires a broad evaluative judgement, that judgement must also be one which has regard to the risk of harm.

1.1.4    Did the Minister consider the risk of harm?

85    In my view, the Minister plainly took into account the risk of harm to the Australian community in considering the national interest in the broad way identified by Bromberg J in Gbojueh. In this regard, the first issues paper explained that in determining whether refusal was in the national interest, it was the interests of Australia as a whole which were to be considered and drew the Minister’s attention to high level national policy and framework documents regarding the prevention, detection and disruption of serious organised crime, including that undertaken by Australia’s highest risk outlaw motorcycle gangs: see above at [36]. The Minister’s attention was also drawn to the protected material in Attachment X.

86    The Minister stated in his reasons for the refusal decision that, in determining the national interest, he took into account the material to which the issues paper drew to his attention and which was attached, and that he accepted in light of all of that material that refusal of his application without prior notice “on the basis of [Mr Roach’s] suspected membership of a group suspected of being involved in criminal conduct is in the national interest, insofar as preventing such people from residing in the Australian community will assist to disrupt, disable and dismantle such groups.” (at [9] (emphasis added)). Further, at [11], the Minister concluded that the information before him “raises concerns that are of such a serious nature that the use of my discretionary power to refuse Mr ROACH a Class BB Five Year Resident Return visa, without prior notice, is in the national interest” (emphasis added). It can fairly be inferred from this, in my view, that the Minister considered the risk of harm posed by the group was serious and indeed so serious as to raise matters of national concern, and took this into account.

87    By contrast, there is nothing in the Minister’s reasons which suggests that he gave any consideration to specific factors, personal to the applicant in considering the risk of harm posed if the applicant were permitted to remain in Australia in the exercise of his residual discretion or indeed at any point in his reasons. The only relevant considerations to which the Minister referred in the exercise of discretion related to the impact of refusing the visa application upon the applicant and his family which he balanced against the finding that it was in the national interest to refuse the visa. In this regard I do not consider that there is any force in the contention that I cannot infer from the absence of any reference to the risk of harm which the applicant personally may pose in the Minister’s reasons and the first issues paper that this was not taken into account, given the protected information contained in Attachment X. As I have earlier explained, under s 501C, the Minister must give a written notice which sets out the reasons for the original decision and is information specifically about the person. Plainly, specific factors personal to Mr Roach relevant to assessing the risk of harm he poses is information bearing that character. Furthermore, even if Attachment X contained protected information about the risk of harm which the applicant might pose to the Australian community, that would not preclude the Minister from stating that he took that factor into account, in line with his approach in making findings on the national interest question based on protected information.

88    It follows in my view that the applicant has established a failure by the Minister to have regard to a mandatory relevant consideration and that the refusal decision is therefore invalid by reason of a jurisdictional error. The non-revocation decision is also invalid as the exercise of the power not to revoke the earlier decision under s 501(3) was premised on the existence of a prior valid decision to refuse to grant the visa.

1.1    Failure to consider the legal consequences of deciding whether to refuse the grant of the visa under s 501(3) (ground 6B)

1.1.1    The issue

89    A further issue was raised at the hearing, namely, whether the Minister erred in failing to consider the legal consequences of an exercise of the power to refuse the application for a visa under s 501(3) as opposed to s 501(1). Leave was granted for the applicant to file a fourth further amended application in order to raise this issue and for supplementary written submissions to be filed by the parties. Specifically, by ground 6B the applicant contends that:

The decision was invalid because the Minister failed to have regard to the statutory and/or legal consequences of refusing the visa in exercise of the power conferred by s 501(3).

Particulars

(i)    The Minister was obliged to have regard to the statutory and legal consequences of visa refusal.

(ii)    Those consequences included that:

(a)    the necessary and sufficient condition for the exercise of the revocation power under s 501C(4) is that the affected person satisfies the Minister that the person passes the character test;

(b)    accordingly, save for when making the refusal decision, there is no statutory occasion for the Minister to consider discretionary factors or factors not bearing on the Minister’s satisfaction that a person does not pass the character test, including the effect of the refusal decision on the interests of the person’s children and family, and whether the person is in general of good character;

(c)    any representations or submissions made by the applicant under s 501C(4), or any information otherwise available to the Minister after the making of the refusal decision, which went to those factors was irrelevant to the course of the Minister’s decision-making;

(d)    the position would be different if the Minister exercised his power under s 501(1) because the person would then be afford[ed] natural justice and would have an opportunity to make representations or submissions going to the effect of the refusal decision on the person’s children and family and as to the person’s general good character.

(iii)    The Minister was not informed of and did not have regard to the matters in (ii) above when making the refusal decision.

1.1.2    The legal consequences prescribed by the Act where the Minister decides to exercise the power in s 501(3)

90    The applicant’s submissions are premised upon the legal consequences which flow where the Minister exercises the power under s 501(3) of the Act, as opposed to ss 501(1) or (2).

91    In this regard, it will be recalled that the power under s 501C(4) to revoke a decision refusing to grant a visa under s 501(3) is enlivened only if the preconditions in s 501C(4)(a) and (b) are satisfied, namely, that representations have been made in accordance with the invitation and the Minister is satisfied that the character test is met. Where these preconditions are satisfied, both parties accept that the Minister has no discretion under s 501C(4): she or he must revoke the original decision. In other words, in the context of s 501C(4), the word “may” means “must”. Conversely where the preconditions are not met, the Minister has no discretion to revoke the original decision.

92    The correctness of this construction is apparent from the language and context of s 501C(4). First, if following representations the Minister is satisfied that the person does in fact pass the character test, then that person has in effect shown that there was no basis for the original cancellation or refusal decision under s 501(3). Secondly, the language of s 501C(4) does not leave any room for the Minister to revoke the original cancellation or refusal decision in circumstances save where the criteria in s 501C(4)(a) and (b) are met.

93    It follows, as the applicant contended, that a decision by the Minister to exercise the power under s 501(3) rather than ss 501(1) or (2) has significant adverse consequences for the individual concerned.

(1)    First, the Minister may (relevantly) refuse a visa application under s 501(3) on character grounds without notice and therefore without affording the applicant procedural fairness (the no natural justice consequence). In the exercise of this power the Minister has a discretion not to refuse the visa application despite finding that the character test is not met and that it is in the national interest to refuse the visa.

(2)    Secondly, the Minister has no discretion under s 501C(4) to revoke a decision under s 501(3) if, after receiving representations, she or he remains of the view that the non-citizen fails the character test and, as a result, at no point is the non-citizen given an opportunity to be heard on the exercise of discretion determined adversely to her or him in the refusal decision, in contrast to the alternative process prescribed by ss 501(1) or (2) of the Act (the no discretion consequences). The right to make representations in support of revocation pursuant to an invitation under s 501C(3) therefore ameliorates only in part the lack of procedural fairness afforded at the initial stage of the decision-making process set out in s 501(3). Representations made by the non-citizen at the revocation stage can bear only on the question of whether or not she or he passes the character test.

94    It may be doubted whether the “no discretion consequences” were actually intended by the Parliament. It appears that the legislative drafter may have transposed the introductory words in s 501C(4) “[t]he Minister may” from relevantly ss 501(1), (2) and (3) where those words are apt to confer a discretion as to whether to refuse to grant or to cancel a visa despite a person not passing the character test, without appreciating that in the context of a decision on whether to revoke a cancellation or refusal decision, the words did not carry the same implication: cf also e.g. s 501CA(4)(b)(ii). Not surprisingly therefore there is some confusion in this regard in the explanatory material which expressly refers to the Minister having a discretion under s 501C(4): Explanatory Memorandum to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 at [74]. Indeed, in the final paragraph of the Minister’s reasons for not revoking the refusal decision, the Minister mistakenly concludes that “I have decided not to exercise my discretion under s 501C of the Act to revoke the original decision”. Be that as it may, there is no room in s 501C(4) to read in a discretion to revoke the original decision if, after representations from the person, the Minister remains unsatisfied that the visa applicant passes the character test, and neither party contended otherwise. To so construe the provision would be, in my view, “too big, or too much at variance with the language in fact used by the legislature”: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 473 (Taylor) at 548 [38] (French CJ, Crennan and Bell JJ) quoting Western Bank Ltd v Schindler [1977] Ch 1 at 18 (Scarman LJ) with approval.

1.1.3    Is the Minister required to have regard to the legal consequences of an exercise of the power in s 501(3)?

1.1.1.1    The decision in NBMZ

95    The question which then arises is whether the Minister is required to consider the legal consequences of an exercise of the power in s 501(3) in deciding to exercise that power or the power relevantly here in s 501(1). The applicant contends that this question must be answered “yes”, relying primarily upon the reasoning of the Full Court in NBMZ.

96    In that case the Full Court held that, in making a decision under s 501(1) of the Act, the Minister failed to have regard to a relevant consideration in a jurisdictional sense, namely, that the visa applicant could face indefinite detention as a legal consequence of refusing the visa application.

97    In so holding, their Honours first distinguished earlier authorities including Huynh at [71]-[76] (Kiefel and Bennett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 (Nystrom) at 606 [127]-[128] (Heydon and Gummow JJ) dealing with the very broad nature of the discretion in s 501 and its lack of confinement by the text of the provision, as well as Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 139 FCR 292 at 314 [87] stating that there was nothing in the legislative structure to indicate that any potential difficulty with removing a non-citizen must be taken into account. None of those authorities, their Honours held, “provides the answer as to whether the legal consequence of the decision must be taken into account.” (NBMZ at 4 [8] (emphasis added)). In this regard, Allsop CJ and Katzmann J held that:

The breadth of the discretion under s 501(1) can be accepted; a broad discretion remains, however, confined by the subject matter, scope and purpose of the Act… The decision of the Minister was made within the framework of the Act. The statutory effect of a decision to refuse a visa is removal of the applicant from the country as soon as practicable, and in the meantime, detention.

98    Secondly, their Honours held that the visa applicant was entitled to have his application “determined on the hypothesis that he will be indefinitely detained” on the basis that the Minister was obliged in exercising power under s 501(1) to consider the legal consequence of the decision he proposed to make. Thus at 4-5 [9], their Honours held that:

The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

99    Those consequences (indefinite detention) “flowed from Australia’s obligation of non-refoulement and the terms of the Act.” (NBMZ at 5 [10]). The non-refoulement obligations were contained in Art 33 of the Refugees Convention which, the plurality held, “has been placed at the heart of the operation of the Act in respect of the consideration of protection visas.” (at 5 [14]). In this regard, I note that the High Court held in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb) that ss 189, 196 and 198 of the Act authorised and required the detention of an unlawful non-citizen even if her or his removal from Australia was not reasonably practicable in the foreseeable future, while Art 33 imposes an international obligation upon Australia not to return a refugee to her or his country of origin is she or he faces a real risk of persecution for a Refugees Convention reason.

100    Thirdly, the plurality held that while the Minister’s reasons were predicated upon the unequivocal character of Australia’s non-refoulement obligation at international law:

16.    What was entirely absent from the briefing note, however, and also from the Minister's reasons was any attempt to confront the binary relational legal consequence of Australia's obligation under Art 33 and Australia's policy of mandatory detention: indefinite detention. It may be accepted, at one level of abstraction, that the Minister was aware of ss 189, 196 and 198 of the Act and of the High Court's decision in Al-Kateb. That, however, is not the point. A material omission from a briefing paper may affect the decision-making process based on it: Peko-Wallsend Ltd at 30-31, 45 and 65-66. Also, the written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account:…

17.    Here, it is to be inferred from his statement of reasons that the Minister did not consider or take into account the fact that, if the visa were refused, the applicant would face the prospect of indefinite detention. This was the effect of Australia's obligation of non-refoulement and ss 189, 196 and 198 of the Act. For the reasons given above and for the reasons given by Buchanan J this matter could not lawfully be overlooked.

101    On this basis, their Honours concluded that the Minister’s decision was vitiated by jurisdictional error by reason of his failure to take into account a relevant consideration (NBMZ at 6 [18]). Justice Buchanan reached a similar conclusion but expressed his reasons more broadly, holding that “the prospect … of indefinite detention was not a matter which could be overlooked, disregarded or allowed to pass without comment in a proper determination of the application for a visa” (NBMZ at 39 [178]).

102    The decision in NBMZ was relevantly applied in NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44 at 46 [2] (Allsop CJ and Katzmann J) and at 76 [107]-[112] (Buchanan J) which was delivered on the same day as NBMZ, and subsequently in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61 (Cotterill) at [104]-[107] (North J), [124]-[133] (Kenny and Perry JJ); see also Ayoub at [19]-[20], AUK15 v Minister for Immigration and Border Protection [2015] FCA 938; (2015) 235 FCR 386, and Le v Minister for Immigration and Border Protection [2015] FCA 1018.

1.1.1.2    Does the reasoning in NBMZ apply to s 501(3) and if so, are the no discretion consequences a relevant consideration?

103    The discretion under s 501(3) as to whether or not to cancel or refuse a visa is equally unfettered in its terms. Nonetheless, it is apparent from the decision in NBMZ that that is not an answer to the question of whether the legal consequences of the decision must be taken into account: NBMZ at 4 [8] (Allsop CJ and Katzmann J). The reasons why the Minister in considering the exercise of the power in s 501(3) must have regard to the legal consequences prescribed by the Act are no less compelling than for a decision under s 501(1).

104    The legal consequences of an exercise of the power in s 501(3) are not only, as the Minister found, that Mr Roach will be unable to travel to and re-enter Australia because he was overseas at the time of the decision (Minister’s reasons at [19]). When regard is also had to s 501C(4), the legal consequences include the lack of any opportunity for the applicant to make submissions relevant to the exercise of discretion at any stage, including as to the impact of the decision on third parties, notwithstanding the existence of an alternative power to refuse a visa on character grounds which would not have that consequence.

105    The no discretion consequences therefore have serious human implications as an applicant might have been able to persuade the Minister relevantly to grant a visa despite not passing the character test and the national interest favouring refusal if the Minister had instead proceeded under s 501(1) and exercised his discretion with the benefit of representations by the applicant. Contrary to the Minister’s submissions, therefore, I do not accept that the legal consequences are so much less serious that those considered in NBMZ as to point against an implication that they are relevant considerations to an exercise of the power under s 501(3) in a jurisdictional sense.

106    It might also be said that, unlike the legal consequence considered in NBMZ, these legal consequences affect procedural, as opposed to substantive, rights. In my view, that argument would have more force if s 501(3) were the only power available to the Minister. However, as a matter of substance, where the Minister exercises the power in s 501(3), she or he makes a choice to adopt an alternative procedure with serious consequences for the individual in terms of her or his capacity to be heard. In this regard, s 501(3) and s 501(1) are alternatives in the sense that the Minister has a discretion even where the criteria in s 501(3)(c) and (d) are met nonetheless not to proceed without notice and to proceed under s 501(1). There is nothing in other words which obliges the Minister to exercise the power in s 501(3) because she or he considers that refusal or cancellation is in the national interest (being the additional criterion present in s 501(3) and not in ss 501(1) and (2)).

107    The Minister also sought to distinguish NBMZ on the ground that the Full Court held that, while the Minister could be taken “at one level of abstraction” to be aware of ss 189, 196 and 198 of the Act and the decision in Al-Kateb, the problem was the failure to take into account the interaction of these matters with Art 33 of the Refugees Convention. Here, however, it was said that the Minister must be taken to be aware of ss 501(3) and 501C of the Act and there is no additional complicating factor equivalent to Art 33. As such, the Minister submitted that there is no relevant consequence that needed additionally to be taken into account.

108    I do not agree that NBMZ is distinguishable on this ground. At the level of principle, NBMZ stands for the proposition that the legal consequences of a decision prescribed by the Parliament cannot lawfully be overlooked, particularly where those consequences are important in human terms. The fact that the applicable legal framework to s 501(3) may be less complex than that considered in NBMZ may be relevant to the question of whether it can be inferred that the Minister overlooked those consequences, but does not in my view provide a principled basis for distinguishing the decision.

109    Finally, the Minister submits that it would be contrary to the ratio in Nystrom to extend the reasoning in NBMZ so as “to require the Minister to take into account legal consequences of a decision that are apparent on the face of the Act”. Specifically, the Minister relied upon the High Court’s rejection of the contention that the Minister, in cancelling a transitional (permanent) visa under s 501(2) had erred in failing to have regard to the legal consequence which would follow for the applicant’s absorbed person visa, namely, automatic cancellation (citing Nystrom at 582 [37]- 583 [41] (Gummow and Hayne JJ) and 605 [122]- 606 [129] (Heydon and Crennan JJ)). In my view, there is no such inconsistency with Nystrom. In that case, Gummow and Hayne JJ rejected as a matter of legal construction the proposition which underpinned the argument that such a failure should constitute a jurisdictional error, holding at 582 [40] that:

It is not sufficient in this regard to treat the Principal Act in a general sense as creating a system whereby each visa constitutes a permission under the Principal Act to remain in Australia which continues until it expires by effluxion of time or is consciously revoked. Such an approach in construing s 501(2) pays insufficient regard to the terms and legislative purpose of s 501F(3)…[which] provides that a decision to cancel a visa where a person fails the character test under s 501“is taken” to be a decision to cancel any other visa held by the person. There is no room for discretion in the matter. The only exception applies if the other visa is within s 501F(3)(b), namely, a protection visa or a visa specified in the Regulations. (emphasis added)

110    By contrast, in this case there is a discretion in the sense of a choice between separate procedural mechanisms with very different legal consequences by which to consider whether or not to cancel or refuse to grant a visa on character grounds.

111    Heydon and Crennan JJ in Nystrom reached the same result by a different process of reasoning, holding at 606 [129] that:

In these circumstances where Mr Nystrom holds two visas, each of which confers the same substantive rights, in cancelling one the Minister is not bound to take into account the “nature” of the other. This is because there was no consideration relevant to Mr Nystrom's absorbed person visa which was not relevant to and considered when the Minister cancelled his transitional (permanent) visa. Thus, there has been no failure to take account of relevant considerations. Section 501F(3) confirms that conclusion.

112    Again, by contrast ss 501(1) and (2), on the one hand, and s 501(3), on the other hand, do not confer the same (procedural) rights. As a result, if anything, the decision in Nystrom supports the conclusion which I have reached as to the proper understanding of the interaction of these provisions and s 501C.

113    It follows that, applying the reasoning in NBMZ, I agree with the applicant that there is an obligation upon the Minister to have regard to the legal consequences prescribed by the Act where the power under s 501(3) is exercised in deciding whether or not to cancel or refuse a visa under that provision as opposed to s 501(1) or (2). Specifically, when it comes to the exercise of residual discretion under s 501(3), the Minister must, in my view, weigh in the balance the “no discretion consequences” of proceeding under s 501(3). This is not in any way to dictate the outcome of that exercise of discretion; the obligation is only to consider, with such consideration being a mandatory relevant consideration (see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 (Mason J) (Peko-Wallsend)).

1.1.1    Did the Minister have regard to the no discretion consequences?

114    The applicant does not contend that the Minister overlooked the fact that the applicant would not be afforded natural justice at the first stage of the decision-making process under s 501(3) of the Act. This was expressly brought to his attention in the first issues paper and was referred to in the Minister’s reasons.

115    I do not accept, however, the Minister’s submission that to advise the Minister that the rules of natural justice do not apply to a decision under s 501(3) conveys that that cannot be remedied in the second stage of decision-making under s 501C(4) when the applicant is given the opportunity to make representations but where there is no discretion. Indeed, that conclusion might be thought to be counter-intuitive. Yet no mention is made of these consequences in either the first issues paper or the Minister’s reasons. To the contrary, the impression given by the first issues paper at [23]-[24] is that the fact that Mr Roach “has not been given an opportunity to make representations regarding the possible refusal of his visa application” (at [23]) will be remedied following an adverse decision under s 501(3) when he is “invited to make representations about possible revocation of the decision”. Furthermore, the first issues paper states that aside from the existence, sex and ages of the applicant’s two minor Australian citizen children, “further information about his relationship with the children is not held at this time” (emphasis added). Far from suggesting that if the decision were made under s 501(3) further information about this would be irrelevant, the reference to information not being held “at this time” tends to reinforce the impression that at a later time, such information might be held and be relevant. The acknowledged limitation upon information available ought to have flagged to the Minister that there was a real possibility that further information which might bear on the exercise of discretion might be provided if the applicant were afforded an opportunity to be heard on that issue: Cotterill at [132]-[133] (Kenny and Perry JJ).

116    It is true, as the Minister emphasises, that the first issues paper also advises that the Minister may revoke the decision if Mr Roach satisfies him that he passes the character test. However, it did not state that the Minister may revoke the decision only if satisfied of that matter and, more particularly, did not specifically alert the Minister to the fact that the lack of natural justice on the exercise of discretion would never be remedied if the power in s 501(3) were exercised.

117    In any event, even if it is assumed in a general sense that the Minister was aware of these consequences, in my view it can fairly be inferred from the absence of any mention of the “no discretion consequences” in the first issues paper and in the Minister’s reasons that it was not regarded as relevant or material: NBMZ at 6 [16] (Allsop CJ and Katzmann J). In this regard, I note that the requirements of s 501G of the Act as to the provision of reasons did not apply to the Minister’s statement of reasons for the refusal decision here. However, the Minister, very fairly, did not seek to make any point as to what could or could not be inferred from the statement of reasons based upon the inapplicability of s 501G. In those circumstances, it is unnecessary to consider whether there is any scope for s 25D of the Acts Interpretation Act 1901 (Cth) (Interpretation Act) to apply to the requirement to provide a written notice setting out the original decision and accompanying “relevant information” under s 501C(3) of the Act.

118    Finally, the failure by the Minister to consider the “no discretion consequences” is not moot but potentially had real and practical consequences for the applicant and his family. In particular, it was apparent from the first issues paper that no details were known about the circumstances or needs of the applicant’s children or of Mr Roach’s wife. Moreover, the submissions made by Mr Roach as to his wife’s significant health issues and consequential impact on his children if the refusal decision is not revoked were irrelevant to the Minister’s decision because he made the decision under s 501(3). However, if the Minister had been aware of those considerations when making his original decision, the possibility that he would have exercised the discretion to refuse the visa application differently cannot be ruled out.

119    It follows that even if I had not found the refusal and non-revocation decisions invalid on ground 2, I consider that they were invalid in any event on ground 6B.

1.2    Alleged failure to give primary consideration to the best interests of the applicant’s children (ground 1)

120    At the time that the Minister made his refusal decision, Direction 65: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of the Visa under s501CA made under s 499 of the Act was in force and specified among other things that the best interests of minor children in Australia are a primary consideration. It was not in in issue that this direction did not bind the Minister: NBMZ at 4 [6] (Allsop CJ and Katzmann J). Nor was it suggested that there was an implied statutory requirement that the Minister consider the best interests of the applicant’s minor children as a primary consideration or otherwise.

121    Rather, the applicant submitted that giving primary consideration to the best interests of the applicant’s two minor dependent children was a condition of the validity of the refusal decision for two reasons:

First, the Minister chose, in accordance with Australia’s international obligations, to make the best interests of [the applicant’s daughters] a primary consideration. Having done so, he was obliged to do so properly and in accordance with law: see Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 44 at [158] (Mortimer J) (Tanielu).

Secondly, in any event, it was incumbent on the Minister to give primary consideration to those interests. That duty arose from the “common law right on the part of the children” to have their “best interests taken into account… as a primary consideration”: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 304 (Gaudron J) (Teoh). That right operates, in part, because of the “expectation” – which it can be observed was held by the Minister and his advisers in the present case – that “because of the special vulnerability of children, particularly where the breakup of the family unit is, or may be, involved, and because of their expectation that a civilized society would be alert to its responsibilities to children who are, or may be, in need of protection”: Teoh at 304 (Gaudron J).

122    On this basis, the applicant submitted that it was not sufficient for the Minister merely to state that the interests of the applicant’s children favoured non-refusal of the visa. As such, the applicant contends that it was not open to the Minister “merely to assume that the conventional position obtained; he needed to have some appreciation of the strength of those interests. … in the present case, and particularly because of the absence of procedural fairness and the absence of any information giving any flesh to the questions of the children’s interests, it was not open to him to do so.” Thus, the applicant contends that it was incumbent on the Minister to make at least a “‘cursory’ inquiry as to the children’s interests…[which if made,] would have disclosed the unique damage which the Refusal Decision would inflict on… [his two minor children]” (relying on Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 89 ALJR 498 (Uelese) at [66]).

123    As to the unique damage which the applicant contended a decision to refuse the visa application would cause, the applicant submitted that his wife has chronic health problems as a result of which she has been in and out of hospital and is often bedridden. For this reason, the applicant was the primary caregiver for their daughters before the refusal decision. However, one effect of the refusal decision was said to be that the older daughter, who was then 13 years of age, may need to assume that role in addition to assuming the care of her mother. Alternatively, it was said that the Minister failed to consider that the refusal decision “would cause the uprooting of [the two daughters] from their existing support structures and schools.” In the applicant’s submission, “[o]n any view, the unique role that Mr Roach played in [his daughters’] upbringing, was one of the salient facts which gave shape and substance to their interests.”

124    In my view, the applicant’s submissions on this ground cannot succeed.

125    First, even assuming that the Minister was required on either basis relied on by the applicant to have regard to the best interests of the applicant’s children as a primary consideration, the Minister in fact did so in the refusal decision in the context of considering whether or not to exercise his discretion to refuse the visa: see above at [46]. Nonetheless, as earlier explained, the Minister concluded that the best interests of the children were outweighed by countervailing considerations (Minister’s refusal decision at [20] quoted at [47] above). In this regard, even where the decision-maker is bound to give primary consideration to the children’s best interests, that does not dictate the result. The obligation is only to consider. It remains open to the Minister to treat the best interests of the children as a primary consideration while making a decision adverse to those interests as a result of weighing up the competing considerations: Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 at 7 [23] (Jagot, Barker and Perry JJ). The weight to be given to those considerations, in turn, is a matter for the Minister: Peko-Wallsend at 40-41 (Mason J); Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; (2015) 235 FCR 88 at 97 [36].

126    Secondly, the applicant’s proposition that the Minister could not merely rely upon facts known to him regarding the applicant’s children, but was required also to make inquiries to obtain further facts, could not be implied consistently with the purpose of s 501(3) of the Act. As the Minister submitted, the power in s 501(3) was available because the Minister found that it was in the national interest to refuse the applicant’s visa without prior notice to the applicant. Bearing in mind that it is not suggested that the inquiries could be made otherwise than of the applicant’s family, it would undermine the Minister’s capacity to pursue the national interest by utilizing this mechanism if s 501(3) were construed as subject to an obligation to make such inquiries. Nor has the applicant pointed to any particular fact known to the Minister when making the refusal decision which obviously called for any such inquiry: see by analogy Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) at 1129 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Rather, with respect, the applicant implicitly seems to take as his starting premise the proposition that the “unique role” played by the applicant in his minor children’s upbringing “was one of the salient facts which gave shape and substance to their interests”, and to reason backwards from the existence of such a fact that the inquiry should have been made. With respect, that line of ex post facto reasoning cannot, in my view, be correct and receives no support from the High Court’s decision in Uelese, on which the applicant relies. In that case, the High Court held that the Administrative Appeals Tribunal (AAT) had wrongly construed s 500(6H) of the Act when the AAT held that it must not have regard to information presented orally in support of the person’s case unless it was set out in a prior written statement. As a result of that error, the AAT had excluded from its consideration information elicited under cross-examination that the applicant was a father of five children, and not three: Uelese at [5] (French CJ, Kiefel, Bell and Keane JJ). As a consequence, the High Court held that the AAT had failed to address whether the interests of the applicant’s two youngest children would best be served by cancelling his visa: Uelese at [5] and [68] (French CJ, Kiefel, Bell and Keane JJ). Accordingly, Uelese is distinguishable on the ground that the High Court held that the AAT had wrongly excluded information known to it from consideration, and not that it had failed to make an inquiry to ascertain information which was unknown to it.

1.3    Alleged misconstruction of “member of a group” in s 501(6)(b) (ground 3)

1.3.1    The issues

127    With respect to ground 3, the applicant contends that the Minister reached the view that the applicant did not pass the character test on the erroneous basis that he could be a “member of a group” for the purposes of s 501(6)(b) irrespective of whether or not he had any sympathy with, or support for, or involvement in, criminal conduct in which the group was suspected to have been involved. For the reasons set out below, ground 3 must be dismissed.

1.3.2    The Minister’s challenge to the factual premise underlying ground 3

128    The Minister did not accept the factual premise for ground 3. First, he did not accept the applicant’s submission that “the Minister considered that Mr Roach would be a ‘member of a group’ which ‘group … has been or is involved in criminal conduct’ even if Mr Roach had never been involved in or was not aware of that conduct (whether at the time or subsequently).” Secondly, the Minister submitted that it was not open to the Court to infer that the Minister proceeded on the basis that the applicant had no sympathy with, or support for, or involvement in any criminal activities of the group.

129    In this regard, I find as follows.

(1)    Plainly, a finding that the applicant was suspected of involvement in criminal activities or as to his state of mind would be information “about the person” and, if it comprised part of the Minister’s reasons, would be required to be disclosed under s 501C(3) of the Act unless it was protected information or non-disclosable information: see above at [24]–[25] and [30]-[31]. No suggestion was made in the first issues paper or in the Minister’s reasons for refusing the visa that it was necessary for the Minister to so find, in line with the Minister’s position on the issue of construction in these proceedings. Nor was any finding made that the applicant was suspected of being personally involved in, or having sympathy with, or support for, the criminal conduct of which the group was suspected; nor was it suggested in the first issues paper that it was open to the Minister to make such a finding. Rather, in line with the suggestion in the first issues paper, the Minister found only that the applicant was suspected of being a member of a group that was suspected of involvement in criminal conduct.

(2)    For these reasons I consider that it can fairly be inferred on the balance of probabilities that the Minister made no such finding, as the applicant contends. It also follows in my view that the Minister did not consider that it was necessary to make such a finding in order to find that the applicant did not pass the character test. In this regard I do not accept the Minister’s submission that it is not open to the Court to infer that no such finding was made because the contents of Attachment X are unknown. The fact that the contents are unknown does not, and, arguably could not consistently with the exercise of federal judicial power, preclude the Court from drawing reasonable inferences from such information as is in evidence in the adjudication of controversies before it.

(3)    I am reinforced in making these findings by the fact that, in his non-revocation decision, the Minister treated as irrelevant the many references to the applicant’s good character which were provided to the Minister in support of revoking the refusal decision. Those references included, more particularly, evidence given by one referee that the applicant “is a motor cycle enthusiast and is involved in a motor cycle club. I recognise that many of these organisations have a bad reputation, however, I can categorically state that [Mr Roach] has never involved himself in anything other than the social aspects of the Club” (emphasis added). That evidence would plainly have been relevant to a finding of whether the applicant was suspected of involvement in the suspected criminal activities of the group, or had support for, or sympathy for, any criminal activities.

130    For these reasons, I consider that it can fairly be inferred from the Minister’s reasons for the refusal decision and the open source material before him that he did not find that the applicant was suspected of involvement in the suspected criminal activities of the group, or had sympathy with, or support for, any of the group’s suspected criminal activities. Contrary to the Minister’s submission therefore, it is necessary to address whether as a matter of construction, the membership limb of s 501(6)(b) could be satisfied in the absence of such a finding.

131    Furthermore, neither the first issues paper nor the Minister’s reasons identify the group of which the applicant was suspected of being a member. However, I accept the Minister’s submission that it could reasonably be inferred from the Minister’s reliance upon Attachment G that part of the basis for finding at [5] of the Minister’s reasons that the applicant did not pass the character test was a suspicion that he was a member of the Bandido Motorcycle Club. Nonetheless, it is somewhat anomalous that I am invited to draw such an inference from open source material yet the Minister apparently felt unable to make such a finding expressly in his reasons. While no issue was taken with respect to this point, it raises a doubt as to whether the Minister properly applied s 503A of the Act. In particular, if information is already in the public domain, it cannot sensibly be regarded as protected from disclosure under s 503A of the Act.

132    Finally, no open source material gives any information about the second aspect of the membership limb in s 501(6)(b), that is, that the Bandido Motorcycle Club has been or is involved in criminal conduct. Indeed neither Attachment C nor D refer at all to the Bandido Motorcycle Club (or the applicant for that matter); nor does Attachment C even refer to motorcycle clubs. It follows that the basis for the Minister’s findings as to the second aspect of the membership limb could have been found only in the material in Attachment X.

1.3.3    Could the applicant be a “member of a group” even if he was not suspected of having any sympathy with, or support for, or involvement in, the group’s suspected criminal conduct?

133    The applicant contends that Parliament should be taken to have intended either or both of the following.

(1)    The term “member” in s 501(6)(b)(i) should be taken to bear an analogous meaning to “association” as construed by the Full Court in Minister for Immigration Citizenship v Haneef [2007] FCAFC 203;(2007) 163 FCR 414 (Haneef), that is, a person is not a “member” of a group which is involved in criminal conduct unless the person has some sympathy with, or support for, or involvement in, the criminal conduct.

(2)    Alternatively, the reference in s 501(6)(b) to a “group” involved in criminal conduct should be taken to refer only to the group of persons in fact so involved. On this construction, the section would not pick up “members” of that entity who are not themselves involved in that conduct. Rather, the word “group” would bear its ordinary meaning, being “[a] number of people that work together or share certain beliefs” (referring to the Oxford English Dictionary meaning 1.1 of “group”).

134    In my view, neither construction of s 501(6)(b) should be accepted.

135    First, as the applicant accepted, the decision in Haneef concerned the construction of s 501(6)(b) before its repeal and substitution in 2014. At that time, s 501(6)(b) provided that a person did not meet the character test if “the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct”. In Haneef, the Full Court held that “the association to which s 501(6)(b) refers is an association involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation. The association must be such as to have some bearing upon the person’s character” (at 447 [130]) (emphasis in the original).  

136    Section 501(6)(b) in its present terms was inserted by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) which came into effect in December 2014 (the 2014 Amendment Act). It remains the case following this amendment that a person does not meet the character test under s 501(6)(b) if the Minister reasonably suspects that the person has had or has an association with a group or organisation suspected of involvement in criminal conduct (the association limb). However, it also now suffices if the person “has been or is a member” of such a group or organisation (the membership limb). In so amending the provision, it is plain in my view that the Parliament intended to create an alternative and additional ground on which the Minister might find that a person does not pass the character test: see also Mrishaj v Minister for Immigration and Border Protection [2016] FCA 456 (Mrishaj) at [36] (Besanko J). This is apparent from the use of the word “or” in s 501(6)(b)(i) between the association and membership limbs of the provision. As such, membership of a group is, as the Minister submits, “a distinct basis, separate and different from and alternative to association with a group, on which a person might not pass the character test.” So much is apparent from the language of the provision which is, in turn, “the surest guide to legislative intention”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at 47 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

137    Secondly, in line with the approach in Alcan, the starting point for the Full Court in Haneef was that the word “association” is a word of wide import which of its nature posed a constructional choice between two or more meanings. As the Full Court explained at 442 [106] after referring to cases of ambiguity:

Alternatively, words may be used which have an ambulatory significance capable of a wide range of applications. Construction involves determining the limits of that range. Terms such as “in relation to”, or “in connection with” raise that kind of problem which, strictly speaking is not a problem of ambiguity at all. The word “association” falls into this category. It may be read widely enough to pick up many completely innocent connections between people. On the other hand, it may be read narrowly to require some sort of positive involvement in criminal conduct with others.

138    Accordingly in reaching the view that the word “association” was used in the narrow sense adverted to, the Court had regard to the principle that Acts should be construed where constructional choices are open so as not to encroach upon common law rights and freedoms (at 442-443 [107]), together with the context in which the term was used and the legislative history of the provision.

139    By contrast, in my view the word “member” is not a word of wide import and does not pose an equivalent constructional choice. In its ordinary meaning, “member” connotes a person who belongs to, or comprises part of, the group: see e.g. Macquarie Dictionary (online edition), meaning 1, and Oxford Online English Dictionary, meaning III, 9. This is not to deny that the question of whether a person is in fact a member of a group will depend on the particular facts of the case and that what might be sufficient to constitute membership of a particular group in one case may be insufficient in another depending, for example, on the membership rules of the group or organisation.

140    Thirdly, as the Minister submitted, the Court must construe s 501(6)(b) in a way that will give meaningful work to each word to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71] (McHugh, Gummow, Kirby and Hayne JJ). If construed in the way the applicant contends, membership would be merely a subcategory of an association in the narrow sense in which that word is used in s 501(6)(b). In other words, a member of the group or organisation who was suspected of involvement in the criminal activities would plainly have an association with the group or organisation in the sense construed in Haneef. It follows that, if the membership limb of s 501(6)(b) is to have any operation beyond that already achieved by the association limb, the word “member” cannot be confined in the same manner as the word “association” in that provision. The applicant’s construction would therefore render the 2014 amendment otiose.

141    In the fourth place, the proposition that the word “group” in s 501(6)(b) should be confined to the group of persons in fact involved in criminal conduct engaged in by the group does not fit with the words of the provision and would equally render redundant or otiose the 2014 amendment. On an ordinary reading of s 501(6)(b), it is sufficient if a group, such as a bikie gang or club, has been or is involved in criminal conduct and the person is a member of that group. The group is not defined as a subgroup of a group of those suspected of being involved or complicit in the criminal conduct. As a matter of substance, the applicant’s construction of “group” would effectively add a third criterion to s 501(6)(b), namely, that the Minister reasonably suspects that the person has been or is involved or complicit in the suspected criminal conduct engaged in by the group: see Taylor at 548 [38] (French CJ, Crennan and Bell JJ).

142    Properly construed, therefore, I consider that the membership limb of s 501(6)(b) operates in effect as a “deeming provision” whereby a person suspected of being a member of a group or organisation which is suspected of being involved in criminal conduct will fail the character test in the same way that, for example, a person would “automatically” fail the character test if sentenced to a term of imprisonment in excess of a specified minimum period: Haneef at 446 [125] (referring to the language used in the Second Reading Speech to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (Australia, House of Representatives, Debates (1998) Vol HR 223 at 1231). In this respect, the membership limb of s 501(6)(b) stands in stark contrast to the association limb of that provision as construed in Haneef.

143    The applicant contends that this construction would mean that a person could not, as a matter of substance, be afforded a meaningful opportunity to make submissions that the decision to refuse or cancel the visa should be revoked on the ground that she or he does in fact pass the character test. In order, therefore, to give effect to the Minister’s power to revoke a refusal decision having regard to representations from an applicant, the applicant contends that it is necessary to read the membership limb of s 501(6)(b) in essentially the same way as the association limb, namely, so as to enable a person to pass the character test by establishing that her or his membership of the group or organisation is innocent. In support of this submission, the applicant relies upon the Full Court’s reasons in Haneef for rejecting the Minister’s submission that a person could fail the character test merely by being friends or “mates” with a person involved in criminal activities. Specifically in Haneef at [121]-[123], the Court held that:

It is one thing for the 1999 amendments to have brought about a reversal of the onus [by requiring the visa holder or applicant to establish her or his good character], as they plainly did, but it is quite another to contemplate a situation in which the Minister is given the power to revoke a decision, but which in practice cannot be enlivened. If the Solicitor-General’s submission as to the meaning of association is accepted, it would be impossible for a person to prove that they are of good character, and that their “association” was entirely innocent, to establish that they pass the character test. Yet the whole purpose of s 501C(4) seems to be to allow them to do so. See generally Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65.

…

…it is significant that the Parliament did not simply entrust the Minister with an unfettered power to refuse or cancel visas, as it might have done. Rather, it established a scheme whereby a person who had been judged to fail the character test could be given the opportunity to have the decision revoked. The expression “passes the character test” in s 501C(4) must be given meaningful content.

144    I do not agree that the reasoning in Haneef applies in the context of the amended provision to the membership limb. Membership implies at the least a voluntary decision by the person to assume membership of the group and recognition by the group of the person as a member. It is open to a person to lead evidence to demonstrate that she or he is not in fact a member of a group suspected of criminal activities. Consequently while the provision may operate harshly in some cases, to read the membership limb in this way does not therefore mean that the person has no real opportunity to persuade the Minister that in fact she or he passes the character test.

145    Finally, the construction which I have reached by reference to the ordinary meaning of the provision is confirmed by the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (see s 15AB(1)(a) of the Interpretation Act). Specifically, at paragraph 41, the Explanatory Memorandum explained that:

The intention of this amendment is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. The intention is that membership of the group or organisation alone is sufficient to cause a person to not pass the character test. Further, a reasonable suspicion of such membership or association is sufficient to not pass the character test. There is no requirement that there be a demonstration of special knowledge of, or participation in, the suspected criminal conduct by the visa applicant or visa holder. (emphasis added)

146    While the decision in Haneef is not expressly referred to in the Explanatory Memorandum, it is apparent from this passage that the intention was to override the decision in Haneef to the extent that a person was suspected of being a member of the group or organisation, as opposed to having an association with it of the kind which required some degree of complicity in the group or organisation’s criminal conduct. Contrary to the applicant’s submission, I do not consider that that explanation of the intended operation of s 501(6)(b) is inconsistent with the general statement in the Second Reading Speech that the 2014 Amendment Bill as a whole reflected the “government’s and the Australian community’s low tolerance for criminal, non-compliant or fraudulent behaviour by those who are given the privilege of holding a visa to enter and stay in Australia.”

147    It follows in my view that the expression “member of a group” must be given its ordinary meaning that mere (suspected) membership of a group suspected of criminal activity is sufficient. Those words in my view evince by necessary and plain implication an intention to derogate from an individual’s freedom of association to the extent to which that freedom might otherwise have applied. There is no room in the language for importing into the membership limb a further requirement of sympathy with, knowledge of, or involvement in, the suspected criminal activities: see also Mrishaj at [37] (Besanko J); cf Haneef at 442 [113] – 424 [114] (the Court).

148    In light of the view which I have reached, it is unnecessary therefore for me to reach a view on the Minister’s submission that there is no common law freedom to be a member of a group suspected of being involved in criminal conduct. Nonetheless, I note that here the interference is on the basis of the group’s suspected involvement in criminal conduct only, albeit that the suspicion must be reasonably formed. Nor is there any express requirement, for example, that the criminal conduct be an object or purpose of the group.

149    For these reasons, I consider that ground 3 of the application for judicial review should be dismissed.

1.1    Alleged misapprehension that it was open to the applicant to satisfy the Minister that he passed the character test (ground 3A)

150    The applicant submits that the Minister plainly proceeded on the erroneous footing that it would be possible for the applicant to convince him that he was not a member of a group that was involved in criminal conduct, relying upon statements in the first issues paper said to give rise to that misapprehension. Yet in the applicant’s submission:

… in the present case, it simply was not open for Mr Roach to convince the Minister that the Bandidos were not or had not been involved in criminal activity. The Minister did not disclose any of the information upon which he had formed that suspicion. Further, there is nothing to suggest that Mr Roach was in any way involved in or aware of that conduct. He was given a secret target, and one which he could never meet. (emphasis in the original)

151    As such, in the applicant’s submission, there was a constructive failure by the Minister to exercise the power in s 501(3).

152    At the hearing, the applicant appeared to depart slightly from his written submissions contending that, even though the Minister’s stated reliance on the Courier article (that is, Attachment G) suggested that the group of which the applicant was suspected of being a member was the Bandidos, that was only a matter of inference or a “best guess” which could be incorrect as the Minister made no finding identifying the group. In his submission, therefore, even the group was ultimately a “secret target”. In this regard, while the Minister submitted that it could fairly be inferred from the Minister’s reliance upon the Courier article that the group was a motorcycle gang known as the Bandidos, in the absence of a finding by the Minister to that effect it could not be known with certainty. Indeed, it might be said that if the Minister had found that the group was the Bandidos as the Minister now asks the Court to infer, it makes no sense that no express finding was made to that effect as that inference could have been drawn from the open source material, even if it was reinforced by information in Attachment X. That aside, it follows that while a finding can be made that the group was the Bandidos on the balance of probabilities (see above at [131]), that does not mean, from Mr Roach’s perspective in making representations to the Minister, that the identity of the group the subject of the Minister’s findings was ultimately known or knowable.

153    The applicant sought to rely in support of his submissions by analogy with the decision in Re Patterson; ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 (Re Patterson). Relevantly, in Re Patterson, Mr Taylor’s visa had been cancelled by the Parliamentary Secretary (being the Minister administering the relevant provision of the Act in that case) under s 501(3) on the ground that he had a “substantial criminal record” within s 501(6)(a), having been convicted of an offence for which he was sentenced to a minimum term of imprisonment of 3½ years. As such, Mr Taylor did not and could not pass the character test in s 501(3) of the Act. Nonetheless, despite the invitation being “one to engage in a futile exercise”, Mr Taylor was invited to make representations to have the Parliamentary Secretary’s decision revoked (Re Patterson at 454 [191] (Gummow and Hayne JJ)).

154    In Re Patterson, the Parliamentary Secretary had been advised at [14] of the departmental submission that if she decided to consider Mr Taylor’s case under s 501(3), there was no requirement to accord natural justice before making the decision. However, the departmental submission further advised that Mr Taylor must then be given notice as soon as practicable of the decision and relevant information, “and an opportunity to make representations seeking revocation of the decision”: quoted in Re Patterson at 455 [193] (emphasis in original). With reference to the words quoted, Gummow and Hayne JJ at 455 [195] (with whose reasons Gleeson CJ at 398 [1], and Gaudron J at 420 [83] agreed; see also Kirby J at 593 [334]) held that:

The suggestion to the reader, who has not been provided with an explanation of how the subsections would operate in the circumstances of the particular case, is that the obligation to give the prosecutor the opportunity to make representations seeking revocation of a decision under s 501(3) to some extent remedies or balances the absence of a requirement to afford him natural justice prior to the making of the decision.

155    Their Honours concluded at 455 [196] that:

In the absence of any evidence providing a further explanation of the reasons, or the parts of the reasons, for the respondent making her cancellation decision of 30 June, it is to be taken that she exercised her discretion under s 501(3) to cancel the prosecutor's [i.e. Mr Taylor’s] transitional (permanent) visa on an erroneous footing. This is that, if she did cancel the visa, the legislation required there then to be given to the prosecutor, in terms of par 14 of the minute, “an opportunity to make representations seeking revocation of [that] decision”. The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3). On that footing, prohibition and certiorari properly lay.

156    While acknowledging that the present case is “not on all fours” with Re Patterson, the applicant contends that “there is no reason why the principle should not apply equally where the inability to disabuse the Minister of the relevant suspicion is a manifest practical inability. To hold otherwise would see a triumph of form over substance.”

157    The applicant relied here upon a passage at [23]-[24] of the first issues paper which, after noting that natural justice does not apply to a decision under s 501(3), explained that:

This means that Mr ROACH has not been advised that consideration is being given to possible refusal of his visa application and he has not been given an opportunity to make representations regarding the possible refusal of his visa application.

However section 501C of the Act provides that, following a decision under subsection 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be notified of the decision and given reasons for the decision (other than non-disclosable information) and invited to make representations about possible revocation of the decision. If Mr ROACH does this, you may revoke the decision if he satisfies you that he passes the character test. (emphasis added)

158    It was said by the applicant that, as in Re Patterson, the implication was that the applicant would be given an opportunity to make representations which would remedy the lack of natural justice if a decision were made to refuse his visa application under s 501(3) in so far as the applicant would have the opportunity to persuade the Minister that he does in fact pass the character test. In addition to this, this paragraph suggests that the applicant would be able to make such representations after he had been given reasons “other than non-disclosable information” which is not required to be provided with notice of the decision by virtue of s 501C(3), as opposed to protected information under s 503A.

159    In my view, Re Patterson is distinguishable. It is plain that the Minister apprehended that the applicant would not be provided with the protected information in Attachment X when afforded an opportunity to make representations, notwithstanding that the refusal decision was based substantially upon that material. In this regard, when specifically discussing the character test and the national interest criteria, the first issues paper suggested that consideration might be given to the information at Attachment X which was protected from disclosure by s 503A (first issues paper at [13] and [21]). It is also apparent from his reasons that the Minister knew that the protected information would not be disclosed to the applicant. Thus in his reasons at [3] for the refusal decision, the Minister stated that:

By subsection 501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection 501(3). However, pursuant to section 501C, following a decision under subsection 501(3) to refuse or cancel a visa, the person who is the subject of the decision is to be invited to make representations about possible revocation of the decision, noting that the person concerned will not be provided with “non-disclosable information”, within the meaning of the Act or, as here, which is protected information under s 503A of the Act. (emphasis added)

160    Further, the Minister fully appreciated that he had taken the information protected under s 503A into account in finding that the applicant did not pass the character test and that refusal of the applicant’s visa application was in the national interest because he said so expressly at [5] and [9] respectively of his reasons: see above at [43] and [44].

161    Given these matters, in my view it cannot be said that the Minister was acting under a misapprehension as to the difficulties under which the applicant would labour in endeavouring to make representations to persuade the Minister that he did in fact pass the character test by reason of the extent of protected information under s 503A to which the applicant would not be privy: see by analogy Mrishaj at [43]. Nothing in this conclusion denies that Mr Roach was at a severe disadvantage in seeking in a meaningful way to rebut the finding that he was suspected of being a member of a group suspected of unidentified criminal activity, as the Minister effectively accepted in submissions: see also Mrishaj at [47] (Besanko J). However, that was the result demanded by s 503A of the Act.

162    Given the conclusion which I have reached, it is unnecessary for me to consider the further grounds on which the Minister sought to distinguish Re Patterson. However, it is helpful to correct what appeared to me to be certain misconceptions.

163    The Minister also submitted that Re Patterson was distinguishable for the same reasons as Edmonds J held in NBMW v Minister for Immigration and Border Protection (No 2) [2014] FCA 454; (2014) 222 FCR 376. In that case, the applicant challenged the Minister’s decision to cancel his protection visa under s 501(6)(b) and s 501(6)(d)(iv) (risk that the person would incite discord in the Australian community). In rejecting the submission that the applicant was not provided with a “real” or “effective” opportunity to make representations as to why the cancellation decision should be revoked, Edmonds J at 382-383 [35] distinguished Re Patterson on the grounds (among others) that:

(1)    First, in Re Patterson, the majority (Gummow and Hayne JJ, Gleeson CJ agreeing at [1] and McHugh J agreeing at [87]) distinguished the “substantial criminal record” limb of the character test (s 501(6)(a)) from the other limbs, stating that “[d]ifferent circumstances might have arisen if, for example, the ground relied upon had been the prosecutor’s association with a person or group or organisation whom the Minister reasonably suspected of involvement in criminal conduct (para (b) of s 501(6))”: 453–454 [190]). This case falls squarely within that carve-out, given that the Cancellation Decision was based in part on s 501(6)(b)...

(2)    Second, the essential difference between s 501(6)(a) (at issue in Re Patterson) and ss 501(6)(b) and 501(6)(d)(v) (at issue here) is that the former involves a question of fact, whereas the latter involves questions of judgment and admits of explanatory evidence. If a person has a substantial criminal record, no explanation of the circumstances of past offending, or of good conduct since, can change the fact of that record. But ss 501(6)(b) and 501(6)(d)(v) are different. Section 501(6)(d)(v) involves a predictive exercise that could obviously be influenced by submissions. Similarly, s 501(6)(b) requires an evaluation of an “association” which, while it focuses on past facts, may be innocent or culpable: e.g., Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, 445–446 [121] (Black CJ, French and Weinberg JJ). A conclusion about “association” therefore may be affected by explanation or exculpatory evidence. Accordingly, whenever a decision is based on that limb of the character test, an opportunity to seek revocation is not necessarily futile (unlike a case within s 501(6)(a)).

164    However, the first ground for distinguishing Re Patterson in this passage is not relevant here. This case does not concern the “association” limb of s 501(6)(b) and, as Re Patterson was decided in 2001, the majority’s observations plainly did not encompass the membership limb.

165    As to the second ground, for the reasons I have earlier given, I do not consider that the membership limb of s 501(6)(b) requires that an evaluation be made as to whether the “membership” is innocent or culpable, in contrast to the association limb. It may be, therefore, that depending upon the circumstances, membership may involve a question of fact akin to that in s 501(6)(a), and not of judgement which may admit of explanatory evidence: quaere Graham at [58] (Tracey J).

1.2    Alleged errors in forming a suspicion that the applicant was a member of a group suspected of being “involved in criminal conduct” (ground 4)

166    With respect to ground 4, the applicant contends that in making the refusal decision, the Minister:

(1)    purported to form a suspicion based on a misconstruction of the words “involved in criminal conduct” in s 501(6)(b);

(2)    formed that suspicion otherwise than by reference to probative evidence;

(3)    formed that suspicion illogically, irrational or unreasonably; or

(4)    did not in truth form that suspicion.

167    It was not in issue that the Minister was required to form any suspicion that the applicant was a member of a group and that the group was involved in criminal conduct reasonably and on a correct understanding of the law: Minister for Justice of the Commonwealth of Australia v Adamas [2013] HCA 59; (2013) 253 CLR 43 at 54 [28] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

1.2.1    Construction of the phrase “involved in criminal conduct” in s 501(6)(b)

168    The applicant contended that the words “involved in criminal conduct” within the meaning of s 501(6)(b) should be given its ordinary legal meaning. On this basis, the applicant contends that the phrase “would pick up groups who have aided, abetted, counselled or procured, induced, been knowingly concerned in or conspired to bring about criminal conduct”, referring by way of example to definitions found in s 79 of the Corporations Act 2001 (Cth), s 2(1) (definition of “involved”) of the Australian Consumer Law in Sch 2 of Competition and Consumer Act 2010 (Cth) and s 550 of the Fair Work Act 2009 (Cth). Accordingly, in the applicant’s submission, the group must have a mental element in respect of the criminal conduct and have engaged in some physical element (mens rea and actus reus). As to the first element, the applicant contends that this required that the Minister form a suspicion that a person constituting the directing mind and will of the entity in respect of the particular physical act had the relevant state of mind and, as to the second element, that an agent of the group had engaged in the relevant act within the scope of actual or apparent authority.

169    In my view, however, the Minister correctly submitted that the phrase “involved” should be given its ordinary and natural meaning which connotes “actively participating in” or simply being “implicated”: Macquarie Dictionary (online edition).

170    First, there is no definition in the Act of the phrase “involved in criminal conduct” or the word “involved” which attributes to either a specialist legal meaning in contrast to the legislation cited by the applicant.

171    Secondly, in each of the other laws relied on by the applicant, the concept of “involvement” is defined in the context of defining when “a person” is involved in a contravention of the relevant law, that is, with adjudicating upon whether a person has contravened the Act in question. By contrast, the phrase “involved in criminal conduct” in s 501(6)(b) defines a criterion for the exercise of executive power turning upon (relevantly) a mere (albeit reasonable) suspicion that a group or organisation has been or is involved in such conduct. As the Minister submits, these contextual differences speak strongly against the technical construction of the word “involved” for which the applicant contends. I agree therefore with the Minister’s submission that a group might be described as suspected of being “involved in criminal conduct” in the ordinary sense of that phrase if the Minister suspects that members of the group commit crimes in their capacity as members of the group, using the facilities or resources of the group, or with the group’s express tacit approval.

1.2.2    Has the applicant otherwise demonstrated that the Minister failed lawfully or reasonably to form a suspicion that the group was involved in criminal conduct?

172    The applicant’s submission that, neither the reasons for the refusal decision nor the first issues paper disclosed any logical connection between the material in Attachment X and the Minister’s alleged suspicion, assumed the correctness of its construction of the phrase “involved in criminal conduct”.

173    In any event, the applicant has not otherwise demonstrated that the Minister failed to form such a suspicion according to law or reasonably.

174    In this regard, I have accepted the applicant’s submission that the open source material at Attachment G had no bearing on the question of whether the group was involved in criminal conduct and, as such, that that finding could have been made only on the basis of the information protected under s 503A in Attachment X. In its terms, therefore, s 503A prohibited disclosure of that information. Indeed, the very purpose of s 503A is to permit the Minister to rely upon information without that information being disclosed: Vella at 78 [69] - 79 [72].

175    That being so, there is nothing in the reasons or material before the Minister that suggests that he unreasonably or unlawfully formed the relevant suspicion in the refusal decision. The issue is to this extent analogous, as the Minister submits, to cases where a successful claim is made of public interest immunity over material upon which a decision-maker relied in reaching her or his decision. The practical consequence in such a case may be that the claimant on judicial review is simply unable to succeed, with the Court being a position where it must arrive at a decision on something less than the entirety of the relevant materials: Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at 550-551 [5] (Gleeson CJ), 556 [24] (Gummow, Hayne, Heydon and Kiefel JJ) (citing with approval Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 61 (Mason J)); see also Sagar v O’Sullivan [2011] FCA 182; (2011) 193 FCR 311 at 321 [71]-[74] and 327-328 [93] (Tracey J).

176    Furthermore, while the Minister had power to permit disclosure to a specified Commonwealth officer, court or tribunal under s 503A(3) of the Act, that power does not in terms permit disclosure to a person such as Mr Roach as part of the notice of the decision required to be given under s 501C(3). Moreover, even if s 503A were construed so as implicitly to permit such disclosure, s 503A(3A) expressly provides that the Minister has no duty to consider whether to exercise his power under s 503A(3) and can exercise the power only after consultation with the gazetted agency which provided the information.

177    In those circumstances, it is not open to the Court to infer from the absence of transparency in the Minister’s reasons that the Minister had no good reason for his findings in this regard (cf Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 663–664 (Gibbs CJ)); nor from the comparative slightness of open source evidence relied upon that his findings were erroneously formed (cf R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120 (Dixon CJ, Williams, Webb and Fullagar JJ)). To hold otherwise would in my view undermine the purpose of the statutory protection afforded by s 503A, being “to ensure that the confidence with which such information was conveyed to the Minister by a gazetted agency can be respected and upheld”: Vella at 78 [70] (the Court).

178    Contrary to the applicant’s submissions, that statutory regime also provides an explanation for the failure by the Minister to call evidence, thereby negativing any adverse inference that might otherwise have been drawn in line with the principle in Jones v Dunkel (1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J) and 320-321 (Windeyer J). Furthermore, as the Minister has no duty to consider the exercise of the power in s 503A, nor could any adverse inference be drawn in my view from the absence of any explanation as to why he has not considered exercising that discretion. In any event, the principle in Jones v Dunkel does not extend to the drawing of any inference that might fill gaps in evidence, as opposed to rendering the drawing of inferences from the evidence more probable: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at 143 [53] (Gleeson CJ and McHugh J).

1.1    Alleged error in forming a state of satisfaction as to the national interest for the purposes of s 501(3) (ground 5)

179    Ground 5 of the application alleges two errors in the Minister’s consideration of the national interest under s 501(3):

(1)    whether the Minister erred in failing to consider the seriousness of the applicant’s suspected membership of the Bandidos, as opposed to the seriousness of the group’s suspected criminal conduct; and

(2)    whether the original decision to refuse the applicant’s visa was unreasonable in that it was a disproportionate means of pursuing the national interest being (relevantly) the disrupting, disabling or dismantling of a group suspected of being involved in criminal conduct.

180    It is clear from the terms of s 501(3) that the question of whether refusal or cancellation is in the national interest is separate and distinct from the question of whether the person passes the character test, as Gaudron J held in Re Patterson at 418 [78]. As her Honour further explained:

That is not to say that the matters which result in a person failing the character test may not also provide the foundation for the Minister's satisfaction that it is in the national interest that that person's visa be cancelled. It may be that the conduct which has led to a person failing the character test is such as to threaten the national interest as, for example, if a person fails the character test because his or her conduct is more likely than not to cause discord in the Australian community (see s 501(6)(d)(iv)).

181    However in a passage upon which the applicant places particular emphasis, Gaudron J held (at 419 [80]) that:

To say that the conduct which leads a person to fail the character test may also provide the foundation for the Minister's satisfaction that it is in the national interest to cancel his or her visa is not to say that it will always do so. Both issues must be considered separately. And where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned.

182    Her Honour found that, by failing to appreciate that it was necessary for there to be something in the nature or seriousness of Mr Taylor’s criminal convictions, or in the circumstances in which his crimes were committed, before she could be satisfied that it was in the national interest to cancel his visa, the Parliamentary Secretary had failed to apply herself to the question to be decided (at 419-420 [82]).

183    Nothing in that approach, in my view, detracts from the nature of the question of the national interest as a largely political one: S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at 46 [40] (the Court). As I have earlier explained, the question is an evaluative one entrusted by the Parliament to the Minister to determine according to her or his reasonable satisfaction (Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 at 353 [89] (the Court)). This is subject to the qualification earlier explained that the risk of harm to the Australian community at a broad level must, in my view, be considered by the Minister in determining the national interest (see above at [81] to [84], and Gbojueh at [45]).

184    The applicant contended first that the Minister failed to engage in the analysis described by Gaudron J in Re Patterson, submitting that:

[The Minister’s] reasoning was, in effect, that, because Mr Roach was a member of an organisation that was involved in criminal conduct, it was in the national interest that he not be permitted to reside in Australia. No part of the Minister’s reasons disclose that he considered the seriousness of Mr Roach’s conduct or the circumstances surrounding it, noting that that conduct is his suspected membership of the Bandidos, not the Bandidos’ suspected criminal conduct. While the Minister did refer to the (secret) information before him raising concerns of a “serious nature”, there is nothing to suggest that that material concerned the seriousness of Mr Roach’s membership of the Bandidos, as distinct from seriousness of the suspected criminal conduct. (Emphasis in the original)

185    While the applicant did not expand upon what was meant by the seriousness of Mr Roach’s membership, the submission would seem to make sense only if it were ultimately concerned with the risk of harm that Mr Roach’s suspected membership of the group might pose to the Australian community.

186    In my view, the submission must be rejected.

187    First the Minister expressly recognised that the question of whether refusal was in the national interest “is separate and distinct from the question of whether or not Mr ROACH passes the character test” (Minister’s reasons at [6]) in line with Gaudron J’s explanation of the proper approach in Re Patterson.

188    Secondly, for the reasons which I have already given, the assumption which underlies the membership limb of s 501(6)(b) is that a person who is a member of such a group potentially poses a risk of harm to the Australian community by reason of that membership. That being so, I do not consider that it can be said that the Minister fell into jurisdictional error in failing to consider whether the applicant’s personal circumstances surrounding his membership were such that they must be taken into account in making the broad evaluative judgement required to determine whether it is in the national interest that his visa application be refused. Rather, in line with the decision in Gbojueh on which the applicant also relied, I consider that the Minister properly had regard to the risk of harm at the level posed by the group in determining what was in the national interest and was bound to have regard to the risk of harm posed by an applicant having regard to his personal circumstances only in the exercise of discretion under s 501(3): see above at [85]-[88].

189    Thirdly, the applicant asserts that the refusal decision was “an obviously disproportionate means” of pursuing the purpose identified by the Minister in his reasons of disrupting, disabling and dismantling groups suspected of involvement in criminal conduct. Rather, it pursues that purpose, in the applicant’s submission, “only so far as it can be said that preventing any member of the entity from residing in Australia can marginally disrupt the entity” (emphasis in the original). In this regard, as the applicant contends, a state of satisfaction may not be formed reasonably if it involves a disproportionate or obviously disproportionate exercise of power: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 351- 352 [30] (French CJ), 366 [73]-[74] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 451 [77] (Allsop CJ, Robertson and Mortimer JJ).

190    In my view, the ground is not made out. It is not contended, nor could it be contended, that the disruption, disabling and dismantling of groups suspected of involvement in criminal activity cannot properly be regarded as the subject of the national interest for the purposes of s 501(3) of the Act. Once that is accepted, it cannot be said that the exclusion from Australia of non-citizens who are members of such a group is necessarily a disproportionate response. In this case, the Minister’s reasons disclose that he did consider the seriousness of the threat or risk posed by such groups to the Australian community when he found at [11] that the information before him raises concerns “of such a serious nature” that he should exercise the power to refuse the visa without natural justice in the national interest. That suggests, in line with Gaudron J’s reasons in Re Patterson, that he did not merely assume that it was in the national interest to refuse the visa because he found that the applicant did not pass the character test by reason of his membership of the group. Rather he considered that there was something in the seriousness of the group’s suspected criminal conduct which founded his state of satisfaction that it was in the national interest to refuse the visa. The absence of further information about the basis for that finding because that information is protected by s 503A does not provide a basis on which to infer that the decision was disproportionate.

2.    THE CONSTITUTIONAL ISSUES RAISED WITH RESPECT TO s 503A (grounds 6, 6A and 8)

191    The applicant put submissions in support of grounds 6, 6A and 8 of the application in various ways.

(1)    First, s 503A(2)(c) is, or would be, invalid to the extent that it permits the Minister to have regard to information protected from disclosure by that provision because, when the Minister relies on that information, the Court cannot effectively supervise that exercise of power contrary to s 75(v) of the Constitution.

(2)    Secondly, s 503A(2)(c) as construed in Vella impermissibly interferes with the Court’s capacity to afford procedural fairness in the individual case and therefore with an essential characteristic of a court (noting that the constitutional issues were not raised in Vella).

(3)    Thirdly, s 503A(2) provides in effect for the executive to direct the Court in an aspect of its jurisdiction as it is the Minister who decides whether protected information can be disclosed to a court.

192    While it was submitted by the applicant that s 503A(2)(c) could be read down so as to be compatible with Chapter III of the Constitution, the submission was made in a generalised way with no suggested or obvious way of doing so.

193    If the applicant’s submissions as to the validity of s 503A(2)(c) were upheld, the applicant contended that the Minister fell into jurisdictional error in the refusal and non-revocation decisions in that he had regard to irrelevant considerations, being the protected information in Attachment X, and acted in breach of the rules of procedural fairness. Accordingly, grounds 6, 6A and 8 constitute additional grounds on which the applicant seeks relief in the nature of certiorari to quash the Minister’s decisions and mandamus to require the consideration of the applicant’s application for a visa according to law. No direct challenge was made to s 503A of the Act in the sense of challenging the validity of the non-disclosure obligations so as to require disclosure of the protected information or otherwise.

194    Those being the issues before the Court, it would not be appropriate for me to consider the constitutional questions as I have already decided that the refusal and non-revocation decisions are invalid and that the relief sought should lie in any event. Questions of constitutional validity should be addressed only when it is necessary “to do justice in the given case and to determine the rights of the parties”: Lambert v Weichelt (1954) 28 ALJ 282 at 283 (Dixon CJ) (quoted with approval in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140 at 199 [141] (Hayne, Kiefel and Bell JJ); see also Duncan v New South Wales [2015] HCA 13; (2015) 255 CLR 388 at 410 [52] (French CJ, Hayne, Kiefel, Bell, Gageler, Keane and Nettle JJ); and AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [53] (Flick, Griffiths and Perry JJ). In other words, it is only when the Court “cannot do justice, in an action properly brought” without deciding on the constitutional validity of legislation that the Court is entitled to “take out this last weapon from [the Court’s] armoury”: Attorney-General (NSW) v Brewery Employes Union of NSW (1908) 6 CLR 469 at 590 (Higgins J) (quoted with approval in Re Patterson at 473-474[250]-[251] (Gummow and Hayne JJ)). Notwithstanding the applicant’s careful and considered arguments on the subject of invalidity, determinations of constitutional validity that would be no more than obiter are not appropriate: Universal Film Manufacturing Co (Australasia) Ltd v New South Wales (1927) 40 CLR 333 at 347 (Isaacs ACJ), 356 (Starke J); Re Patterson at 474 [251] (Gummow and Hayne JJ).

3.    CONCLUSION

195    For the reasons given above, ground 2 of the application for judicial review is upheld and the refusal and non-revocation decisions should be quashed. Further and in any event, the decisions would be invalid on ground 6B of the application. Orders in the nature of mandamus requiring the Minister to consider the applicant’s visa application according to law should issue. The grounds of review are otherwise dismissed save that in the circumstances it would not be appropriate for me to rule upon grounds 6, 6A and 8. I will afford the parties the opportunity to be heard on the issue of costs.

Associate:

Dated:    24 June 2016