FEDERAL COURT OF AUSTRALIA

Stevens v Minister for Immigration and Border Protection [2016] FCA 1280

ORDERS

THE COURT ORDERS THAT:

1.    The determination of ground 3 of the further amended originating application (application) is deferred pending the determination by the Full Court of grounds 5 and 6 of the application.

2.    The matter is adjourned to a date to be fixed following delivery of reasons for judgment by the Full Court in respect of grounds 5 and 6 of the application.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for judicial review of a decision of the respondent (Minister) to cancel the applicant’s visa under the Migration Act 1958 (Cth) (Act).

2    The applicant, Andrew Stevens, was born in England. He arrived in Australia with his adoptive parents in 1971 when he was nine. He has lived continuously in Australia for about 44 years. He has four adult children, two minor children and two grandchildren. His children are all Australian citizens. On 13 February 1998 Mr Stevens was granted a Class BB Subclass 155 Five Year Resident Return visa under the Act.

3    Until the morning of 9 June 2016, Mr Stevens lived with his current partner of five years and 10 months in the suburbs of Adelaide. On that morning he was notified that the Minister had personally made a decision to cancel the visa under s 501(3) of the Act. Mr Stevens was taken into immigration detention under the Act, where he presently remains.

4    By his further amended originating application dated 2 September 2016 (application), Mr Stevens seeks orders inter alia quashing the cancellation decision.

determination of SEPARATE issues

5    By [5] of his claim for relief, Mr Stevens seeks “A declaration that section 501(3) and/or section 503A of the Migration Act 1958 is ultra vires the Commonwealth Constitution and invalid”. That claim for relief is supported by grounds 5 and 6 of the application.

6    On 18 August 2016, the Chief Justice gave a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) (FC Act) that the grounds for review in [5] and [6] of the application, as expressed at that date, be heard and determined by a Full Court concurrently with three other matters raising the same or substantially the same Constitutional issues. The issues are set down for hearing by a Full Court on 10 and 11 November 2016.

7    Neither party sought an order delaying the hearing or determination of the remaining grounds for judicial review pending the determination of grounds 5 and 6 by the Full Court. To the contrary, both parties urged the Court to determine the remaining grounds of review before the date on which argument before the Full Court had been set down for hearing. Accordingly, on 23 September 2016, I heard argument on grounds 1 to 4 and ground 7.

8    Ground 3 of the application alleges that the Minister erred in construing s 503A of the Act and that the cancellation decision is vitiated by that error. In the course of preparing these reasons, I formed the view that there was a real chance that it will become necessary for the Full Court to construe s 503A of the Act in order to determine the issues raised in grounds 5 and 6. I invited further submissions from the parties on that discrete issue. The applicant did not respond to the invitation. The respondent acknowledged that the matters pending before the Full Court may well require the determination of the same construction argument raised by the applicant before me in relation to ground 3. In the circumstances, it is appropriate that I defer my determination of that ground. A single judge of this Court should avoid determining a question of statutory construction if the Full Court may be called upon to determine the same question in the same action pursuant to a determination made by the Chief Justice under s 20(1A) of the FC Act.

9    It is otherwise appropriate that I now determine the remaining grounds of review, especially having regard to Mr Stevens’ ongoing detention. That approach is also consistent with the principle that the Court should not determine an issue arising under the Constitution unless 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) 240 CLR 140 at [141] (Hayne, Kiefel and Bell JJ)); see also Duncan v New South Wales (2015) 255 CLR 388 at [52] (French CJ, Hayne, Kiefel, Bell, Gageler, Keane and Nettle JJ) and AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 at [53] (Flick, Griffiths and Perry JJ).

10    For the reasons given below, I have determined that grounds 1, 2, 4 and 7 of the application are not established.

THE GROUNDS FOR REVIEW

11    The issues raised in the grounds of review now under consideration may be summarised as follows:

(1)    whether the Minister was obliged to consider the risk to the Australian community posed by Mr Stevens’ continued presence in Australia and, if so, whether the Minister failed to consider that issue (Ground 1);

(2)    whether the Minister was obliged to consider the legal consequences of proceeding to cancel Mr Stevens’ visa under s 501(3) of the Act rather than s 501(2) of the Act and, if so, whether the Minister complied with any such obligation (Ground 2);

(3)    whether the Minister erred in determining that there was a reasonable basis to suspect that Mr Stevens did not pass the character test under s 501(6)(b) (Ground 4); and

(4)    whether the cancellation decision was affected by legal unreasonableness in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and the Full Court of this Court in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton), either by reason of the errors alleged in the other grounds for review or in relation to other determinations of fact or law having a material bearing on the outcome of the decision (Ground 4 and Ground 7).

THE STATUTE

12    The power exercised the Minister under s 501(3) of the Act is one of a number of discrete powers conferred under s 501. Sections 501(1) to (5) provide:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

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

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

(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.

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.

(3A)    The Minister must cancel a visa that has been granted to a person if:

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

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

(3B)    Subsection (3A) does not limit subsections (2) and (3).

(4)    The power under subsection (3) may only be exercised by the Minister personally.

(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 (3) or (3A).

13    The “character test” is defined in s 501(6) to s 501(11) of the Act. The issues of construction arising on this application necessitate the reproduction of subs (6) and subs (7) in full. I have emphasised those parts of the character test upon which the Minister relied in cancelling Mr Stevens’ visa.

Character test

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

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

(aa)    the person has been convicted of an offence that was committed:

(i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)    the person has been convicted of an offence against section 197A; 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

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)    an offence under one or more of sections 233A to 234A (people smuggling);

(ii)    an offence of trafficking in persons;

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the 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; or

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)    the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)    the crime of genocide;

(ii)    a crime against humanity;

(iii)    a war crime;

(iv)    a crime involving torture or slavery;

(v)    a crime that is otherwise of serious international concern; or

(g)    the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h)    an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

(a)    the person has been sentenced to death; or

(b)    the person has been sentenced to imprisonment for life; or

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

(f)    the person has:

(i)    been found by a court to not be fit to plead, in relation to an offence; and

(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)    as a result, the person has been detained in a facility or institution.

(emphasis added)

14    The following observations may be made from the outset:

(1)    The power to cancel a visa under subs (2) or subs (3)(b) is discretionary (compare subs (3A)).

(2)    The power to cancel a visa under subs (3)(b) may only be exercised if both of the threshold criteria prescribed in subs (3)(c) and subs (3)(d) are met.

(3)    Although the preconditioning criteria for the cancellation of a visa prescribed in s 501(2)(a) and s 501(3)(c) are identical, the power under s 501(2) may only be exercised if the visa holder does not satisfy the Minister that the person passes the character test. There is no such criterion preconditioning the power under s 501(3).

(4)    Of the various powers conferred by s 501, the power in subs (3) is the only cancellation power preconditioned by the criterion that the Minister be satisfied that the cancellation is in the national interest. Where the Minister is so satisfied, it is not a condition of the exercise of the power that the Minister also be satisfied that the visa holder does not pass the character test. Instead, the Minister need only “reasonably suspect” that the visa holder does not pass the test. The Minister is not required to form any concluded view on that question.

(5)    A suspicion that a person does not pass the character test may be objectively reasonable even if the suspicion is subsequently discovered to be affected by a mistake of fact or law: Ruddock v Taylor (2005) 222 CLR 612 (Ruddock); Okwume v Commonwealth of Australia [2016] FCA 1252. Whether or not the suspicion is reasonable at the relevant time will depend on the matters known or reasonably capable of being known by the decision-maker at the relevant time: Ruddock at [44].

(6)    The power to cancel a visa under s 501(3) of the Act may only be exercised by the Minister personally (see subs (4)), whereas the power to cancel a visa under subs (2) and subs (3A) may be exercised by a person exercising powers delegated by the Minister pursuant to s 496 of the Act.

(7)    The rules of natural justice apply to a decision to cancel a visa under s 501(2), with the result (among other things) that the visa holder is to be given an opportunity to satisfy the Minister that he or she passes the character test for the purposes of s 501(2)(b). It follows that the Minister is required to positively consider materials and submissions relied upon by the visa holder and to form a view as to whether the person passes the character test or not. The onus remains upon the visa holder to satisfy the Minister that he or she passes the test.

(8)    In contrast, the rules of natural justice do not apply to a decision to cancel a visa under s 501(3) (see s 501(5)) with the result that the visa holder has no entitlement to be heard as to whether the preconditioning criteria are met, nor as to any other matter affecting the exercise of the Minister’s discretion.

(9)    The various paragraphs of s 501(6) are alternatives. As a consequence, a person will not pass the character test if he or she has a substantial criminal record within the meaning of s 501(6)(a), irrespective of whether the Minister can also be positively satisfied (or even reasonably suspect) that there is a risk that the person would engage in criminal conduct if allowed to remain in Australia within the meaning of s 501(6)(d), and irrespective of whether the Minister may be positively satisfied (or even reasonably suspect) that the person is not a person of good character within the meaning of s 501(6)(c).

(10)    The character test prescribed in s 501(6)(b) differs from the other paragraphs of the test in the important respect that the test is premised upon the Minister reasonably suspecting that the criteria in s 501(6)(b)(i) and s 501(6)(b)(ii) are fulfilled, rather than on the objective fulfilment of the criteria. All other aspects of the character test are expressed objectively.

15    The express exclusion of the rules of natural justice on the making of a cancellation decision under subs (3) is ameliorated, albeit only in part, by s 501C of the Act. It relevantly provides:

501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3) … to:

…

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

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

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

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    … 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.

(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).

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

…

16    Section 501C(4) is to be read in the statutory context I have previously described, namely that an original decision to cancel a visa has been made upon the ground that the Minister reasonably suspected the visa holder did not pass the character test. The effect of s 501C(4) is that the power to revoke a decision to cancel a person’s visa under s 501(3) may only be exercised where the person satisfies the Minister that he or she passes the character test. Where the person is unable to satisfy the Minister that he or she passes the test, the Minister has no discretion to revoke the original decision. In Roach v Minister for Immigration and Border Protection [2016] FCA 750 (Roach), Perry J described s 501C(4) as having a “no discretion consequence”. I will use the same terminology. However, for the reasons given at [85] below, I do not accept that such a consequence flows in every case, and nor do I consider that such a consequence should or could be confidently predicted by the Minister at the time of making an original decision under s 501(3) of the Act.

17    Where a delegate of the Minister decides not to cancel a person’s visa in the exercise of the power conferred under s 501(2), that decision may be set aside by the Minister and the Minister may cancel the visa in the exercise of powers conferred personally on the Minister under s 501A(2) or (3) of the Act. Those provisions provide:

Action by Minister—natural justice applies

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

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

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

if:

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

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

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

Action by Minister—natural justice does not apply

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

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

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

if:

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

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

18    As the headings to those provisions indicate, the rules of natural justice apply to a decision under s 501A(2) but not to a decision under s 501A(3): see s 501A(4).

19    Notably, the criteria preconditioning the exercise of the power under s 501A(3) are identical to those preconditioning the exercise of the power conferred personally on the Minister under s 501(3) of the Act.

20    The power under s 501A(3) may be exercised by the Minister irrespective of whether the Minister’s delegate, in exercising the power under s 501(2), was satisfied that the visa holder did not pass the character test: see s 501A(1). The Minister may revoke the delegate’s decision upon forming a less certain state of mind on that question than that formed by the delegate.

21    Read in combination, these provisions evince an intention that a visa may be cancelled by the Minister, whether by way of an original decision under s 501(3) or by way of a revocation decision under s 501A(3), where the Minister forms no more than a reasonable suspicion that the person concerned does not pass the character test, provided always that the Minister is satisfied that cancellation of the visa is in the national interest. In either case, the rules of natural justice do not apply.

THE CANCELLATION DECISION

22    In deciding to cancel Mr Stevens’ visa, the Minister relied on information falling within the operation of s 503A of the Act, which protects, in accordance with its terms, the confidentiality of certain information divulged to an authorised migration officer by certain agencies on the condition that the information be treated as confidential.

23    The Court has before it:

(1)    a document titled ISSUES FOR CONSIDERATION OF POSSIBLE VISA CANCELLATION UNDER SECTION 501(3) OF THE MIGRATION ACT together with 25 of its 26 attachments;

(2)    a one-page document titled VISA CANCELLATION UNDER SECTION 501(3) OF THE MIGRATION ACT 1958 – DECISION BY THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION signed by the Minister on 3 June 2016; and

(3)    a document titled STATEMENT OF REASONS FOR CANCELLATION OF VISA UNDER S 501(3)(b) OF THE MIGRATION ACT 1958 – MINISTER FOR IMMIGRATION AND BORDER PROTECTION comprising 44 paragraphs and signed by the Minister on 3 June 2016.

24    The first-mentioned document is a Briefing Paper directed to the Minister. Its stated purpose was to seek the Minister’s decision on whether to cancel Mr Stevens’ visa “without natural justice, in the national interest under section 501(3)(b) of the Migration Act 1958”. Attachment Z to the Briefing Paper is described in an index as “Protected information under section 503A of the Migration Act. NOT FOR RELEASE”. The Briefing Paper (including all of its attachments) comprises all of the material that was before the Minister at the time of making the impugned decision. As its title suggests, Attachment Z contains material falling within the operation of s 503A of the Act. That material has not been provided to Mr Stevens, nor is any of the material contained in Attachment Z in evidence on this application.

25    The second-mentioned document appears to be a standard form completed by the Minister. It states, in its opening paragraph “I have considered this issues paper including all of the attachments in relation to the possible cancellation of the Class BB Subclass 155 Five Year Resident Return visa, granted to Mr Andrew Peter STEVENS on 13 February 1998”. Below that paragraph there are four alternative outcomes. The Minister has marked that document so as to eliminate three “Non-cancellation outcomes” and so as to circle the fourth outcome. The fourth outcome states:

Cancellation outcome

(d)    I reasonably suspect that Mr STEVENS does not pass the character test and I am satisfied that cancellation of Mr STEVENS’ Class BB subclass 155 Five Year Resident Return visa is in the national interest. I have decided to exercise my discretion under section 501(3) of the Migration Act to cancel Mr STEVENS’ visa. I hereby cancel Mr STEVENS’ Class BB Subclass 155 Five Year Resident Return visa.

26    The third-mentioned document was referred to by the parties as constituting the “Reasons” of the Minister. I will use the same terminology. As will be seen, the extent to which the Minister is obliged to give reasons for a decision under s 501(3) of the Act, and the inferences that may be drawn from that document as to the Minister’s actual reasoning process are both contentious issues.

27    The Briefing Paper and the Reasons largely follow the same structure. It will be necessary in due course to descend into some detail about their content. For now it is sufficient to give only a broad overview of the Reasons.

28    In his introductory paragraphs, the Minister refers to the combined effect of s 501(3), s 501(5), s 501C(3) and s 503C(4). The Reasons contain a statement to the effect that any request Mr Stevens might make for the revocation of the cancellation decision could not succeed because Mr Stevens would be unable to satisfy the Minister that he passed the character test.

29    The Reasons state that, for the purposes of s 501(3) of the Act, the Minister reasonably suspected that Mr Stevens did not pass the character test on two separate bases.

30    First, the Minister had before him material that indicated that Mr Stevens had a “substantial criminal record” as defined in s 501(7)(c) of the Act and, as a consequence, he did not pass the character test under s 501(6)(a). It is not in dispute on this application that Mr Stevens objectively has a “substantial criminal record” by reason of him being sentenced to 15 months imprisonment (suspended upon entering into a two year bond) upon being convicted on a charge of conspiracy on 28 January 1993.

31    Second, the Reasons state that the Minister reasonably suspected that Mr Stevens was, or had been, a member of a group or organisation referred to by the Minister as the Mongols Outlaw Motorcycle Gang (Mongols OMCG) and that the Mongols OMCG had been or was presently involved in criminal conduct. According to the Reasons, the Minister reasonably suspected that Mr Stevens did not pass the character test as prescribed in s 501(6)(b) of the Act.

32    The Minister then turned to consider whether cancellation of the visa was in the national interest within the meaning of s 501(3)(d). In that regard, the Minister noted that it was the view of the Australian Crime Commission that outlaw motorcycle gangs “remain one of the most high profile manifestations of organised crime”. The Reasons state (at [22] — [23]):

I concluded that the cancellation of Mr STEVENS’ visa on the basis of his substantial criminal record and suspected membership of a group suspected of being involved in criminal conduct is in the national interest. This is on the basis that excluding such persons from the Australian community will contribute to national law enforcement efforts, including and disabling such groups suspected of being involved in criminal conduct.

I further concluded that the information before me raised concerns that were of such a serious nature that the use of my discretionary power to cancel Mr STEVENS’ Class BB Subclass 155 Five Year Resident Return visa, without prior notice, is in the national interest.

33    Under the heading “OTHER CONSIDERATIONS” the Reasons then go on to discuss whether the cancellation of Mr Stevens’ visa was in the best interests of his children. In relation to his two minor children, the Reasons state (at [27]):

I noted that whilst there is no evidence available regarding the nature of Mr STEVENS’ current relationship with his children, in the absence of information to the contrary, I nevertheless accepted that Mr STEVENS continues to have a close relationship with his children, provides care and support to his children and provides financial support to his children. I therefore find that it is in the best interests of Alicia and Alex not to cancel Mr STEVENS’ visa as it would deprive them of the opportunity to continue to have a direct and personal relationship with their father and it would cause them significant emotional, financial and psychological hardship.

34    Similarly, the Reasons state (at [29]) that while no information had been presented to the Minister regarding the nature of Mr Stevens’ current relationship with his grandchildren, it was accepted that Mr Stevens performs a customary role in their lives as their grandfather and that the cancellation of the visa was not in the best interests of the grandchildren.

35    After discussing further considerations that are not the subject of particular contentions on this application, the Minister concluded (at [44]):

Having given full consideration to all of the information before me in this case, I reasonably suspect that Mr STEVENS does not pass the character test by virtue of section 501(6)(a) and section 501(6)(b), and I am satisfied it is in the national interest to cancel his visa. I have treated the best interests of Mr STEVENS’ minor children as a primary consideration. I also considered the other countervailing considerations in this case, including Mr STEVENS’ familial, employment and social ties in Australia which have been forged during the time in which he has been ordinarily resident in Australia, a period of over 44 years. I find that the considerations favouring non-cancellation, in particular the best interests of the affected children, are however outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to cancel Mr STEVENS’ Class BB Subclass 155 Five Year Resident Return visa under paragraph 501(3)(b) of the Migration Act.

36    Both the Briefing Paper and the Reasons contain statements to the effect that s 503A of the Act operated so as to prevent Mr Stevens having access to the information contained in Attachment Z to the Briefing Paper.

APPROACH TO THE REASONS

37    The parties are in dispute about the inferences that may be properly drawn from the Reasons and the Briefing Paper, particularly as to the reasoning processes adopted by the Minister.

38    Although the Briefing Paper is not to be regarded as a statement of the Minister’s reasons, it does constitute evidence of the material before the Minister. Its content may support inferences as to the considerations that were, or were not, taken into account by him in the exercise of his discretion to cancel the visa: compare O’Connor v Adamas (2013) 210 FCR 364 at [249] (Barker J); Minister for Justice of the Commonwealth of Australia v Adamas (2013) 253 CLR 43 at [22].

39    As to the Reasons themselves, it is to be borne in mind that the Minister’s obligations to give a written notice under s 501C(3)(a)(i) of the Act and particulars of “relevant information” under s 501C(3)(a)(ii) of the Act are more confined than the obligations to give reasons for decisions made in other contexts under the Act. Compare, for example, the more burdensome obligation imposed under s 501G of the Act, which relevantly provides:

501G Refusal or cancellation of visa—notification of decision

(1)    If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:

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

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

(ba)    not revoke a decision to cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision; and

…

40    The wider obligations imposed under s 501G do not apply to a decision made pursuant to s 501(3) of the Act. The Act recognises a distinction between “reasons” for a decision (s 501G(1)(e)) and “information ... that the Minister considers would be the reason, or part of the reason, for making” a decision (s 501C(2)). The former obligation is one requiring the Minister’s reasoning in the exercise of his discretion to be exposed. The latter does not.

41    The same distinction is apparent in Pt 7 of the Act, which deals with, among other things, the obligations of the Administrative Appeals Tribunal (AAT) in the performance of its review functions. Section 430(1) of the Act imposes upon the AAT an express obligation to give a written statement of reasons. Such a statement must set out, among other things, “the decision of the Tribunal” (s 430(1)(a)), “the reasons for the decision” (s 430(1)(b)), “the findings on any material questions of fact” (s 430(1)(c)) and “the evidence or any other material on which the findings of fact were based” (s 430(1)(d)). Those obligations are separate and distinct from the express obligation imposed under s 424A of the Act to give an applicant for review before the AAT “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” before the decision is made. Section 424A and s 430 of the Act have parallels in s 501C(3)(a) and s 501G respectively.

42    The obligation under s 501C(3) is not to give a statement setting out evidence, findings and reasoning processes. Rather, it is an obligation to notify the fact of the decision and to give particulars only of “relevant” information (as defined) that formed a reason or part of the reason for the original decision.

43    It is to be borne in mind that the Act imposes no obligation on the Minister to provide to the person affected by the decision any information that is not specifically about the person, but that is just about a class of persons of which the person or other person is a member: s 501C(2)(b). In its application to the present case, s 501C(2)(b) imposed no obligation on the Minister to provide Mr Stevens with information that was just about the group or organisation of which Mr Stevens was suspected of being a member, but not otherwise specific to Mr Stevens.

44    Where there exists a statutory obligation to give reasons of the kind prescribed in s 501G or s 430 of the Act, the Court may draw certain inferences from what is not expressly set out in the Reasons as much as it may draw an inference from that which is expressly set out: see for example Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) and Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431. However, where the obligation to give notification of a decision is more confined (such as that imposed under s 501C(3)), the Court should, in my opinion, proceed with more caution before drawing inferences adverse to the Minister, whether from an absence of content, or from the manner of expression, or from the structure and layout of the document in question, unless it is evident in the particular case that the Minister did indeed intend to furnish an affected person with a comprehensive statement of reasons independently of any statutory obligation to do so.

45    In the present case the Minister has in fact provided Mr Stevens with a document that appears, both in form and in substance, to be an attempt to disclose not only the information upon which the Minister acted (apart from that information the Minister considered to be protected from disclosure under s 503A of the Act), but also to disclose the reasoning processes adopted by the Minister in determining to cancel Mr Stevens’ visa. As the Minister has adopted that course, the Court may safely infer that the Minister intended that the document serve the same purpose as a set of reasons of the kind that might be provided in the discharge of the obligation under s 501G of the Act. That is an appropriate assumption to make in the present case, although the same assumption may not necessarily be made in all cases where an applicant for review relies, for evidentiary purposes, on a less comprehensive notice issued under s 501C(3) of the Act.

46    A further matter affecting the proper approach to interpreting the Reasons is the circumstance that the Minister has not disclosed in that document any of the information contained in the documents that are subject to s 503A of the Act. As a consequence, the Reasons do not include any statement as to any facts found, evaluations made or inferences drawn by the Minister by reference to that information, nor is the Minister’s reasoning in respect of that information disclosed on the face of the Reasons. Insofar as the Minister’s decision involved the evaluation and weighing of competing considerations, on the basis of all of the materials before him, the Reasons cannot be understood as constituting, or intended to constitute, a complete statement of his reasoning processes.

GROUND 1

47    This ground is expressed as follows:

1.    The Minister’s decision is vitiated by jurisdictional error as the Minister erred in failing to properly apply the residual statutory discretion and the statutory criteria in section 501(3) of the Migration Act 1958 and failed to have regard to relevant considerations in that, the Minister:

1. 1.    Failed to give consideration in exercising the residuary statutory discretion to the risk of harm, if any, to the Australian community if the applicant were permitted to remain in Australia which was a necessary precursor to the exercise of the statutory discretion:

1. 1. 1.    The Minister was obliged to consider according to law the risk to the Australian community posed by the applicant’s presence in Australia

1.1.2. The Minister did not consider, according to law, or form any view as to the risk posed by the applicant's presence in the Australian community

48    Counsel for Mr Stevens submitted that the risk of harm posed by a visa holder is a mandatory consideration in the exercise of the discretion to cancel a visa on character grounds under s 501(3) of the Act in circumstances where the Minister reasonably suspects (but need not be satisfied) that the visa holder does not pass the character test prescribed in s 501(6)(a) (substantial criminal record) and/or s 501(6)(b) (membership of a group or organisation reasonably suspected of involvement in criminal conduct). Failure to take that consideration into account would, it was submitted, amount to jurisdictional error of the kind explained by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend). Reliance was placed on Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 (Moana) (Rangiah and North JJ, Jessup J dissenting).

49    Moana concerned the exercise of the Minister’s power to cancel a visa under s 501(2) of the Act on the grounds that the Minister was satisfied that the visa holder did not pass that part of the character test prescribed in s 501(6)(a) of the Act. The majority held that the risk that the visa holder posed to the Australian community was a mandatory consideration “at the discretionary stage” of the Minister’s decision (at [58] — [60]). In so concluding, the majority construed s 501(6) of the Act as a whole, including by specific reference to the terms of s 501(6)(b) of the Act, as then in force. The majority drew support from the reasoning of Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [50].

50    In Roach, Perry J concluded at [72] that the majority’s construction of s 501(6) of the Act (as then in force) comprised a part of the ratio of the decision in Moana. That conclusion was derived, in part, from what Rangiah J said at [57] (North J agreeing):

The discretion under s 501(2) is not enlivened unless the threshold test is met. In some cases, the Minister will be required to consider whether there is a significant risk that the person would represent a danger to the Australian community of a type specified in para (d) of s 501(6). If the discretion is then to be enlivened, the Minister must form a reasonable suspicion that there is a significant risk that person represents such a danger and must fail to be satisfied by the person that he or she does not. As Parliament required the Minister to evaluate the danger, or risk, to the Australian community at the threshold stage it seems unlikely that Parliament intended that the Minister should then be at liberty to ignore that risk when exercising the discretion. What seems more likely is that Parliament intended that, having taken that risk into consideration at the threshold stage, the Minister must also consider it in exercising the discretion. Similarly, 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) (including paras (e), (f), (g) and (h) which were added by the Amendment Act).

51    Rangiah J went on to say at [58] — [60]:

58    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.

59    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.

60    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.

(emphasis added)

52    In Roach, as in the present case, the applicant sought judicial review of a decision by the Minister to cancel the applicant’s visa under s 501(3) of the Act. In that case, as here, the Minister proceeded on the basis that he reasonably suspected that the visa holder did not pass the character test prescribed in s 501(6)(b) of the Act. Perry J determined that the decision in Moana was not relevantly distinguishable and the principles stated by Rangiah J were applicable without modification in the case before her Honour, notwithstanding that Moana concerned the discretion conferred under s 501(2), rather than s 501(3) and notwithstanding that s 501(6)(b) of the Act had been amended in 2014, after Moana had been decided. Perry J gave two reasons for that conclusion (at [74] — [75]):

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.

(emphasis added)

53    Her Honour concluded (at [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) …

54    Later in her Honour’s reasons, Perry J referred to the judgment of Bromberg J in Gbojueh v Minister for Immigration and Border Protection (2012) 202 FCR 417. That case concerned a challenge to the personal exercise by the Minister of the power conferred by s 501A(2) of the Act to set aside a non-adverse decision of the Minister’s delegate under s 501(2) and to substitute his own decision to cancel a person’s visa. The rules of natural justice apply to the exercise of that power. Like the power conferred under s 501(2), the power conferred under s 501A(2) is preconditioned by a criterion that the person concerned does not satisfy the Minister that he or she passes the character test, having first been afforded procedural fairness.

55    Perry J said (at [81]) that s 501A(2) of the Act “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…” (my emphasis). That statement is consistent with what was said by her Honour in the opening words to [74], extracted above at [52] of these reasons.

56    In my respectful view, Perry J’s reasons at [74] and [81] in Roach do not recognise the differences between the threshold criterion prescribed in s 501(3)(c) of the Act and those prescribed in s 501A(2)(d) and s 501(2)(b). Whereas s 501(3) of the Act requires only that the Minister reasonably suspect that the person concerned does not pass the character test, s 501A(2)(d) of the Act, in common with s 501(2), requires that the Minister, having first formed that reasonable suspicion, then go on to determine whether the person concerned has satisfied him or her that the person passes the character test. In that regard, the Act contemplates that the Minister will, in the exercise of the powers conferred under s 501(2) form a considered view as to whether the person passes the character test or not by reference not only to the material supporting the Minister’s suspicion formed under s 501(2)(a), but also by reference to materials provided to the Minister by the visa holder for the purposes of s 501(2)(b). The same may be said of the power conferred under s 501A(2).

57    In contrast, the Minister may cancel a visa under s 501(3) of the Act even in circumstances where the Minister does not (or, indeed, cannot) form a state of satisfaction as to whether the visa holder passes the character test. The most that is required of the Minister is that he or she reasonably suspects that the visa holder does not pass the test. The power conferred under s 501(3) of the Act is the only power conferred under s 501 that is preconditioned only by that lesser state of mind insofar as the character test is concerned. It is a state of mind that may be lawfully formed without giving the visa holder an opportunity to be heard and without making any active assessment of whether the person in fact poses a risk of harm to the Australian community. Even where the character test as prescribed in s 501(6)(d)(i) is relied upon by the Minister, the criteria therein need only be engaged to a degree of certainty rising no higher than a reasonable suspicion: s 501(3)(c).

58    That is not to say that the reasoning in Moana concerning the interrelation of the threshold criteria and the ultimate exercise of the discretion is wholly inapplicable in the different decision-making context of s 501(3). As Rangiah J said (at [49]), “the Minister’s consideration of the character test necessarily informs his consideration of the discretion” and (at [60]) “They are separate questions, but they are linked by the fact that they are stages in the exercise of a single power”. I respectfully agree with the conclusion of Perry J that the principles stated in Moana do apply in the context of a decision to cancel a visa under s 501(3). However, in my opinion, the principles are to be applied with close attention to the important qualifications stated by Rangiah J and with such modifications as are appropriate to accommodate material differences in the threshold criteria vis-à-vis s 501(2) and s 501(3) of the Act.

59    Counsel for Mr Stevens relies upon the following statement of Rangiah J in Moana (at [66]):

I consider that in the exercise of the discretion under s 501(2), the Minister is required to consider whether there is a risk of harm to the Australian community posed by the continued presence of the visa holder in Australia and to take into account any such risk.

60    Rangiah J went on to explain and qualify that conclusion at [67] — [74]. In so doing, his Honour dealt with a submission that the concept of the risk of harm comprised two integers: the seriousness of any harm that might be caused and the likelihood of that harm occurring. His Honour rejected a contention that the Act required the Minister in every exercise of the discretion under s 501(2) to take into account the likelihood of the visa holder engaging in future conduct which may cause harm. Nor did the subject matter, scope and purpose of the Act support a conclusion that matters personal to the visa holder be taken into account when considering the risk of harm. His Honour said (at [71] — [74]):

71    … It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.

72    The cases concerning s 501A relied on by the Minister (at [63] above) establish that the seriousness of an offence may, of itself, lead the Minister to conclude that a visa should be cancelled in the national interest. I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.

73    Contrary to the appellant’s submission, I doubt whether Mortimer J held that the Minister must evaluate the static and dynamic factors personal to an individual that may affect the risk that the person may pose when exercising the discretion. I think that her Honour was merely illustrating the factors of the type that might influence the likelihood of a person engaging in future conduct which may cause harm. In any event, there is direct authority against the proposition that the Minister is bound to consider factors personal to the visa holder: Huynh at [74] per Kiefel and Bennett JJ. I am unable to see how s 501(2) can be construed to require the Minister to take into account such personal factors when considering the risk of harm.

74    I consider that the Minister is not bound to conduct an evaluation of the likelihood of the visa holder engaging in future conduct that may cause harm when exercising the discretion under s 501(2). That is not to say that evaluation of such likelihood will not be centrally relevant to the exercise of the Minister’s discretion in most cases. The exercise of the discretion to cancel a visa without examining the likelihood of future harm may in some circumstances be unreasonable, in the sense of lacking an evident and intelligible justification: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. However, s 501(2) cannot be construed to require the Minister to take into account that likelihood in all cases.

(emphasis added)

61    In their application to decisions made pursuant to s 501(3) of the Act, these principles (together with the passages at [58] – [60] of Moana extracted and emphasised at [51] above) require the Minister to take into account, in the exercise of his or her discretion, the circumstance that there exists material supporting a reasonable suspicion that the visa holder does not pass the character test. To the extent that those materials might support a conclusion that the visa holder personally poses a risk to the Australian community, the possible existence of that risk must be taken into account in the exercise of the Minister’s discretion.

62    It is in that way that the matters bearing on the threshold questions interrelate with the ultimate exercise of the discretion under s 501(3) as recognised by the Full Court in Moana in connection with s 501(2). But that is all. In circumstances where the Minister is required to form only a reasonable suspicion that the person does not pass the character test, it should be recognised that the Minister may be in no position at all to identify whether the person concerned personally poses a risk of harm to the Australian community in fact. An assessment of that question in the particular context of s 501(3) of the Act may only be speculative and necessarily based upon limited information. Any such assessment, if made, must nonetheless be taken into account in the final balance.

The Minister’s Reasons

63    Before proceeding further, I should note that the applicant did not advance any contention under this ground of review that the Minister was under any duty to make enquiries so as to obtain information other than that which was before him.

64    Against that background, I am satisfied that the Minister did consider, in the exercise of his discretion, the risk of harm posed by Mr Stevens’ continued presence in Australia, and that he did so in a manner consistent with the principles stated in Moana as they apply in the relevant statutory context.

65    Counsel for Mr Stevens drew the Court’s attention to the following observations made by Perry J in Roach in connection with expressions used in the reasons of the Minister in that case. The passages are, it is submitted, expressed in relevantly identical terms as certain passages in the Reasons given by the Minister in the present case. The relevant passages are dealt with by Perry J in Roach as follows (at [86] — [87]):

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 …

66    I accept that the passages extracted from the Minister’s reasons in Roach concerning the risk posed by an Outlaw Motorcycle Gang (OMCG) are relevantly identical to passages contained in the Reasons before me. I also accept that those passages do not, as Perry J observed, refer to “specific factors, personal to” the relevant applicant, with the exception that the reasons do refer to the applicant’s status as a member of group suspected of being involved in criminal conduct. However, as explained by Rangiah J in Moana (at [73]), the Minister is not bound to consider matters personal to the visa holder to assess the likelihood of the person engaging in future conduct that may cause harm. So much is confirmed by Rangiah J’s reference to the “direct authority” to that effect in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 (Kiefel and Bennett JJ). See also Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [41] (Rares, Flick and Perry JJ) and Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [44] (Flick, Griffiths and Perry JJ). In deciding the present application it is appropriate that I follow the decision of the Full Court in Moana. It is not necessary to determine whether or not the remarks of Perry J at [87] in Roach, read in their proper context, embody a correct statement of principle.

67    The Court was urged to infer that the Reasons were divided into three relevant parts, the first concerning the threshold question under s 501(3)(c), the second concerning the threshold question under s 501(3)(d) and the third evidencing the matters taken into account in the ultimate exercise of the Minister’s discretion. It was submitted that the structure of the document supported an inference that the Minister failed to take into account, in the exercise of the “residual discretion”, any matters not expressly referred to in the third portion of the Reasons.

68    The Reasons should not be interpreted in that way. The third portion of the Reasons is titled “OTHER CONSIDERATIONS”. It is plain from the word “other” that the Minister was, under that heading, turning his mind to considerations relevant to the exercise of his discretion that had not already been found and considered by him in the earlier portions of the document. It is, in my opinion, artificial to construe the reasons so as to isolate the material coming under that heading from everything that has gone before. The submission that the material preceding that heading was not taken into account in the ultimate exercise of the Minister’s discretion, should not be accepted.

69    The Reasons contain the following statement (at [18]):

I note that Mr STEVENS’ last criminal conviction was recorded on 05 July 2001, over 15 years ago. In the absence of any recent recorded convictions, I have considered that Mr STEVENS may have rehabilitated. However, in considering Mr STEVENS’ lack of recent criminal offending, I also considered his membership with an OMCG and their involvement with organised crime.

70    That statement, in my opinion, evidences that the Minister did consider, in any event, matters personal to Mr Stevens, namely the passage of time since Mr Stevens’ criminal conviction. The Minister correctly identified that issue as one that potentially affected the risk of harm posed by Mr Stevens’ continued presence in Australia. The Minister also considered that Mr Stevens’ membership of an OMCG was relevant to the question of whether he personally posed a risk to the Australian community in that it potentially bore on the question of whether Mr Stevens had “rehabilitated” from past criminal conduct. The passage at [18] of the Reasons, in my opinion, goes further than the principles stated in Moana require in their application to decisions made pursuant to s 501(3) of the Act: the Minister considered whether Mr Stevens may engage in future conduct that may cause harm. It is implicit in that paragraph that the Minister concluded that Mr Stevens may pose a risk, notwithstanding the passage of time since his criminal conviction.

71    Although the remarks at [18] of the Reasons appear in the second portion of the Reasons under the heading “NATIONAL INTEREST”, for the reasons I have already given, that circumstance does not support an inference that the matters considered there were not also taken into account in the ultimate exercise of the Minister’s discretion: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [14]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43] – [44] and Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185; [2012] FCAFC 39 at [24].

72    Finally, I infer from the concluding remarks at [44] of the Reasons that the Minister recognised that the proper exercise of his discretion required him to weigh all of the matters to which he had previously averted in the document.

73    Ground 1 of the application is not made out.

GROUND TWO

74    This ground is expressed as follows:

2.    The Minister in the exercise of his residuary statutory discretion unlawfully failed to have regard to the statutory and/or legal consequences of his decision and acted unreasonably and the Minister failed to have regard to the statutory and legal consequences of visa cancellation under section 501 (3) as opposed to section 501 (1) and section 501 (2) of the Act:

2. 1.    The Minister had a discretion to cancel the applicant's visa pursuant to section 501(1), section 501(2) and section 501(3) of the Act

2.2    The Minister was obliged to consider that if the Minister exercised the discretion to cancel the applicant's visa pursuant to section 501(1) or section 501(2) the applicant would be afforded natural justice;

2.3    The Minister was obliged to consider that if the Minister exercised the discretion to cancel the applicant's visa pursuant to section 501(3) the applicant would be denied natural justice

2.4    The Minister was not informed of and did not have regard to the matters outlined in 2.1 and 2.2 above.

2.5    The Minister failed to weigh in the balance the statutory consequence of proceeding under section 501(3) of the Act as opposed to proceeding under section 501(1) or 501(2) of the Act.

75    The “statutory consequence” referred to in [2.5] of this ground is the same as the “no discretion consequence” discussed at [16] of these reasons. I will deal with that issue first.

76    In Roach, Perry J identified the adverse consequences that may be visited upon a visa holder whose visa is cancelled pursuant to s 501(3) of the Act, rather than pursuant to s 501(1) or s 501(2). Her Honour defined the consequences as follows (at [93]):

(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.

77    Perry J concluded (at [113]) that the Minister must, in exercising the power under s 501(3) of the Act, have regard to the second of those consequences. Her Honour determined that the Full Court’s reasoning in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (NBMZ) both supported and required that conclusion:

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)).

78    In NBMZ the Full Court held that the Minister erred by failing to take into account, in refusing to grant a visa, the legal consequence that the visa holder would remain in immigration detention indefinitely.

79    The same question arising for determination before Perry J in Roach had been previously considered and determined by Jessup J in Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154 (Tanielu). His Honour arrived at the opposite conclusion to that arrived at by Perry J (at [15]):

That limb invokes the ground of judicial review identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39:

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR. 363, 375; CREEDNZ Inc. v. Governor-General (1981) I N.Z.L.R. 172, 183, 196-197; Ashby v. Minister of Immigration [1981] I N.Z.L.R. 222, 225, 230, 232-233.

In my view, in exercising the discretion arising under s 501(3), the Minister is not, by the terms of the Act or otherwise, bound to take into account the circumstance that the opportunity to make representations under s 501C(4) would be futile, if that is the situation in the case at hand. The s 501(3) discretion would, in my view, be validly exercised if the Minister gave no thought to what realistic opportunity would arise for the particular visa-holder under s 501C(4). Section 501(3) itself does not require it, and, although every broad discretion must be exercised consistently with the objects of the Act, there is nothing which requires every statutory possibility or potential consequence to be part of the decision-making process.

80    His Honour then went on to deal with a further ground of review which contended that the Minister in that case had failed to take into account a legal consequence that the applicant in question “could never be granted a visa to return to Australia”. In that context, his Honour said (at [26]):

In presently relevant respects, the applicant relied upon the judgment of the Full Court in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, where it was held that a decision to refuse to grant a protection visa under s 501(1) in the course of which no consideration was given to the reality that the person concerned would thereupon be subject to indefinite detention (because the nation from which he had fled refused to accept him back) was thereby infected by jurisdictional error in the Peko-Wallsend sense. The present case is, however, a far cry from NBMZ. It was not there held that each and every consequence of a decision under s 501 had to be placed on the scales for the contribution it might potentially make to the exercise of the Minister’s discretion. The case was concerned with a very specific situation, one which involved Australia’s obligations under the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, specifically its non-refoulement obligations. As I read their Honours’ reasons, it was critical that the direct and immediate practical consequence of the Minister’s decision under s 501 was that the person concerned would be in indefinite detention.

81    Counsel for Mr Stevens submitted that the reasoning of Jessup J in Tanielu is to be properly regarded as obiter. I do not agree. In my opinion, the question of whether the “no discretion consequence” was a consideration to which the Minister must have regard in the exercise of the power under s 501(3) arose directly in the matter before his Honour, and his Honour’s reasoning as to the effect of the Full Court’s judgment in NBMZ forms a part of his Honour’s consideration of all of the legal consequences of the decision under review in that case.

82    It appears that the decision of Jessup J in Tanielu was not brought to the attention of Perry J by either party in Roach. As a consequence, the decision in Roach does not address the question of whether the judgment in Tanielu was plainly wrong.

83    In the circumstances, it is appropriate that I follow the earlier decision of Jessup J. I am not of the view that his Honour’s decision is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89. The contention in [2.5] of the grounds on this application is not established for that reason.

84    I would, in any event, independently reason to the same conclusions arrived at by Jessup J in Tanielu at [26] (in relation to the effect of NBMZ) and at [15] (on the proper construction of s 501(3) of the Act). His Honour’s conclusions are, in my opinion, consistent with the different criteria conditioning the exercise of the powers conferred under s 501(1), s 501(2) and s 501(3) of the Act.

85    It is not correct to say that a “no discretion consequence” befalls every person whose visa is cancelled under s 501(3) of the Act. The consequence only befalls a person who is unable, on a subsequent revocation request, to satisfy the Minister that he or she passes the character test for the purposes of s 501C(4). Once again, it is to be remembered that in exercising the power under s 501(3) of the Act, the Minister need only reasonably suspect that the visa holder does not pass the character test, that the Minister is under no obligation to afford the visa holder an opportunity to be heard, and that the Minister’s reasonable suspicion may be founded upon assumptions of fact and law that are later discovered to be mistaken: see my observations at [14] above. It follows that at the time of the original decision, the Minister will be under no obligation to conclude whether or not any revocation request made by the affected person under s 501C of the Act would be “futile”. The implication of a mandatory consideration of the kind contended for by the applicant would, in my opinion, require the Minister to actively speculate that the visa holder, if afforded an opportunity to be heard, will be unable to persuade the Minister to a different position. Nothing in Peko-Wallsend supports the implication of a mandatory consideration of that particular kind.

86    If I am wrong in the conclusions I have expressed in [83] to [85] above, I would find in any event that the Minister did in fact have regard to the “no discretion consequence” in accordance with the requirement expressed by Perry J in Roach.

87    The Minister stated at [3] of the Reasons:

Under 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(3), 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 information relevant to it (other than ‘non-disclosable information’) and invited to make representations about possible revocation of the decision. Case law confirms that I am not required to disclose, under section 501C(3), information that is protected by section 503A. By subsection 501C(4), if the person makes representations in accordance with the invitation and satisfies me that they pass the character test, I may revoke the cancellation decision. However, because Mr STEVENS has received a prior sentence of 12 months or more imprisonment, he has a substantial criminal record as provided by s501(7)(c) and objectively fails the character test under paragraph 501(6)(a), any revocation request he makes could not succeed.

88    Counsel for Mr Stevens acknowledged in oral submissions that this paragraph correctly summarises the “no discretion consequence” for the purposes of this ground of review. It is contended, however, that the mere identification of the consequence in the introductory portion of the Reasons is insufficient. It is submitted that the structure of the Reasons supports an inference that the Minister failed to weigh in the balance the relevant statutory consequence at the stage of exercising the residual discretion.

89    The phrase “residual discretion” should be employed with some care in this context. There is one discretionary power. Although the preconditions for the exercise of the power must be satisfied before the decision to cancel a visa may be made under s 501(3), it is, in my opinion, artificial to use the language of a “residual discretion” to suggest that there exists a requirement that the Minister mentally move through a series of separate mental steps in a strictly mandated stages. The language of a “residual discretion” has been conveniently adopted in judicial decision-making so as to enable separate analysis of those matters that precondition the exercise of a power and those matters that do not. However, there exists a danger of elevating the parlance of judicial decisions into a rigid and ordered structure in which an administrative decision-maker must think and act. Where, as here, the subject matter of the power is one involving a complex evaluation of countervailing considerations, it is safe to read the reasons for the exercise of the power against an assumption that all matters referred to in the expression of the written reasons have been taken into account in arriving at the final outcome.

90    In the present case, the Reasons (at [3]) demonstrate that the Minister had regard to the “no discretion consequence” of proceeding under s 501(3) of the Act. There is no reason in language or logic to draw the conclusion that the consequence (at least as predicted by the Minister at Reasons [3]) was not weighed in the final balance. I can conceive of no reason why the Minister would refer to the “no discretion consequence” anywhere in the Reasons if not for the purpose of confirming that the predicted consequence was a matter taken into account in the exercise of his discretion.

91    Subparagraph [2.5] of the grounds is not made out.

92    Subparagraphs [2.1] to [2.4] of the grounds raise a separate issue. It is contended that the circumstance that the rules of natural justice do not apply to the exercise of the power under s 501(3) of the Act is a statutory consequence that the Minister was required to consider. As enlarged upon in oral submissions, the ground raises an argument that the Reasons disclose no logical or intelligible reason for the Minister proceeding to cancel Mr Stevens’ visa without according him natural justice (under s 501(3)), rather than proceeding under s 501(2). I should add that the reference in ground 2 to s 501(1) of the Act was acknowledged by Counsel to be erroneous, that being a provision concerned only with the refusal to grant a visa to a person.

93    In support of this ground, Counsel for Mr Stevens sought to rely on four affidavits which, it was said, would have constituted the material Mr Stevens could have and would have put before the Minister had the Minister proceeded under s 501(2) of the Act and afforded him an opportunity to be heard. It was submitted that the Minister’s “decision” to proceed under s 501(3) rather than under s 501(2) worked a practical injustice upon Mr Stevens similar to that discussed by the High Court in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam) and that the affidavits bore upon that discrete question.

94    I ruled that the affidavits should not be read. The matters to be determined under this ground are different to those determined in Lam. In that case, the High Court held that the rules of procedural fairness will not be breached by a decision-maker’s departure (without notice) from a previously foreshadowed procedure where no practical injustice is suffered as a result of the departure. The decision concerns the practical content of the rules of procedural fairness in a given statutory context where the rules of procedural fairness are acknowledged to apply.

95    The ground before me raises different questions. The Act itself contemplates that a visa holder may put before the Minister relevant material weighing against the cancellation of his or her visa under s 501(2) of the Act, not only in relation to the issue of whether the person passes the character test but also on the ultimate question of whether the visa should be cancelled. The questions to be determined are, first, whether the Minister was required to consider that circumstance when proceeding instead under s 501(3) and, second, whether the Minister was required to give reasons expressing or evidencing (in the applicant’s words) an “intelligible justification” for proceeding down one statutory route rather than the other. The actual content of the material that Mr Stevens could have and would have provided to the Minister had the Minister proceeded under s 501(2) of the Act does not assist the Court to answer either of those questions.

96    In my opinion, the submissions made on behalf of Mr Stevens do not pay sufficient regard to the important differences between s 501(2) and s 501(3) of the Act identified by Jessup J in Tanielu. The evident purpose of s 501(3) of the Act is to empower the Minister to cancel the visa of a person where it is in the national interest to do so, without first forming a positive state of satisfaction about whether the person passes the character test or not. The statute itself provides the justification for the Minister proceeding to exercise the power under s 501(3) of the Act in preference to the power conferred under s 501(2).

97    The absence of any express explanation given in the Reasons for proceeding under s 501(3) of the Act rather than under s 501(2) does not demonstrate that the Minister did not correctly appreciate the statutory context in which the cancellation decision was to be made: see NBMZ at [142]. It is clear on the face of the Reasons that the Minister appreciated that the decision to cancel Mr Stevens’ visa was made “without notice”. It is also clear on the face of the Reasons that the Minister considered that the criterion in s 501(3)(d) had been engaged. The Minister was under no obligation explain why he did not proceed under an alternative provision that did not contain the same preconditioning criteria.

98    Ground 2 is not made out.

GROUND FOUR

99    Ground 4 is expressed as follows:

4.    The Minister's decision is vitiated by jurisdictional error as the Minister erred in failing to properly apply the statutory criteria in section 501(3) of the Migration Act 1958, and failed to have regard to relevant reasons in that, the Minister:

4. 1.    Failed to consider the relevant statutory requirements concerning section 501(6)(b) in that the Minister:

4. 1. 1.    Failed to consider the ‘association’ requirement.

4.1.2.    Failed to consider that association must have some negative bearing on the Applicant’s character.

4.1.3.    Failed to form the reasonable suspicion as to section 501(6)(b)(ii) or acted with vitiating illogicality or irrationality in considering section 501(6)(b)(i).

100    This ground impugns the formation of the Minister’s suspicion that Mr Stevens did not pass the character test under s 501(6)(b).

101    Subparagraph [4.1.1] may be shortly dealt with. Section 501(6)(b)(i) of the Act contains two alternative limbs: membership of a group or organisation or association with the group or organisation. It is sufficient that only one limb be satisfied: Mrishaj v Minister for Immigration and Border Protection (2016) 150 ALD 516; [2016] FCA 456 at [36] (Besanko J), Roach at [136] (Perry J). The Minister’s suspicion that Mr Stevens did not pass the character test was founded on the basis that Mr Stevens was reasonably suspected of being (or having been) a member of a group or organisation (s 501(6)(b)(i)), that the Minister reasonably suspected was (or had been) involved in criminal activity (s 501(6)(b)(ii)). The Minister was under no obligation, as contended in [4.1.1] of the grounds of review to “consider the ‘association’ requirement” in s 501(6)(b)(i).

102    Subparagraph [4.1.2] raises a slightly different issue. It was not enlarged upon in oral or written submissions. I do not consider either limb in s 501(6)(b)(i) to require the Minister to make his own assessment as to whether the visa holder is a person of good or bad “character” in the ordinary sense of the word (contrast s 501(6)(c)). The “character test” is one prescribed by statute. It is enough for the purposes of s 501(3) of the Act that the Minister reasonably suspect that a person does not pass the statutory test. In circumstances where the “association” limb of s 501(6)(b)(i) is relied on (not being this case), the Minister is not required to further ruminate about whether a person’s association with a group or organisation “has a bearing” on the person’s character. The legislature itself has addressed and answered that question in the affirmative by the enactment of subss 501(6)(b)(i) and (ii). I will revert again to this issue in the context of ground 7 on this application.

103    Subparagraph [4.1.3] raises two contentions impugning the formation of the Minister’s suspicion that the Mongols OMCG was, relevantly, a group that had been “involved” in criminal conduct within the meaning of s 501(6)(b)(ii) of the Act. The argument has two limbs. First, it is submitted that the subjective suspicion formed by the Minister in connection with that issue was not objectively reasonable. Second, it was submitted that the Minister’s decision is affected by legal unreasonableness in the sense explained by the High Court in Li in that the Minister’s conclusions on the issue lacked intelligible justification or were otherwise not open to be drawn on all of the material before him. The onus is on Mr Stevens to demonstrate that the Minister fell into that jurisdictional error: SZGUR at [67] (Gummow J)

104    The proper meaning of the word “involved” was considered by Perry J in Roach. Her Honour said (at [171]):

… 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.

105    The operation of s 503A of the Act operates so as to disable Mr Stevens, in a practical sense, from making good this ground of review. He has not been provided with the material that was before the Minister that is protected from disclosure, nor can he invoke the compulsory processes of this Court so as to require the Minister to produce that material to him or to the Court itself.

106    As the Reasons make clear at [4], [9], [12], [15] and [21], the protected material was relied upon by the Minister in determining that all preconditions for the exercise of the power under s 501(3) of the Act were fulfilled, including the question of whether the Minister reasonably suspected that Mr Stevens did not pass the character test as prescribed in s 501(6)(b).

107    Mr Stevens cannot, in those circumstances, discharge the burden of establishing that the Minister committed jurisdictional error in the sense explained in Li or, for that matter, any other jurisdictional error by reference to the protected material. Nor can he make out that part of the ground of review that alleges that the subjective suspicion formed by the Minister was not objectively reasonable.

108    This Court, in the circumstances, cannot assume that the protected material weighed only in favour of the cancellation of Mr Stevens’ visa, nor that it would be supportive only of the Minister’s defence of this action. The material may well contain such significant countervailing information that a decision otherwise having the appearance of being unaffected by legal unreasonableness may, upon the disclosure of the protected material, be revealed to be one that is so affected. The converse may also be true.

109    The written and oral submissions advanced by Mr Stevens nonetheless sought to establish that it was not open to the Minister to form the requisite reasonable suspicion on the material that has been disclosed to Mr Stevens and to the Court. To my mind, it would be an exercise in artificiality to assess whether the conclusions of the Minister were open to him only by reference to those incomplete materials. Undertaking that exercise would not resolve the justiciable controversy between the parties. This Court’s jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) to determine whether an administrative decision is affected by legal unreasonableness (as explained in Li) is properly to be exercised by reference to all of the materials before the Minister that properly bear upon that question. It is not to be exercised on a fiction that the Minister only had before him the disclosed materials and nothing else. For that reason only, I decline to determine the present arguments raised by Mr Stevens by sole reference to the disclosed documents.

110    As will be seen, ground 7 on this application impugns particular findings expressed in the Reasons to have been made by the Minister by reference to specified documents among the material that was disclosed to Mr Stevens. Some of those grounds may properly be determined without reference to the protected materials.

111    However, Mr Stevens has not and, indeed, cannot discharge his burden of establishing jurisdictional error alleged in ground 4 of the application. The written submissions of the Minister state (at [34]):

The fact that the protected information is not able to be seen is itself an answer to any contention that the finding was not open; the Applicant simply cannot discharge his onus of proof.

112    In my opinion, that submission fairly encapsulates the practical effect of s 503A of the Act insofar as it precludes this Court from reviewing an administrative decision on the basis of all of the material before the decision-maker so as to identify whether the decision is affected by jurisdictional error as alleged by the applicant.

113    Ground 4 is not made out.

GROUND 7

114    This ground is expressed as follows:

7.    The Minister’s decision is vitiated by jurisdictional error as the Minister erred in failing to properly apply the statutory criteria in section 501(3) of the Migration Act 1958. The Minister further erred in failing to refer to logically probative matters and the decision was unreasonable. The Minister erred in:

7.1.    Failing to make a finding concerning rehabilitation or in the alternative in inferring a lack of rehabilitation;

7.2.    Proceeding on an incorrect basis concerning the seriousness of the past offending.

7.3.    Inferring contrary to the material provided to the Minister by the Department that it was overwhelmingly in the national interest to cancel the visa because it would contribute to national law enforcement efforts of disabling so-called, Outlaw Motorcycle Gangs (‘OMCGs’).

7.4.    Relying at paragraph [13] and [20] upon the establishment by the Australian Crime Commission of Operation Morpheus.

7.5.    Making conclusions at paragraph [22] concerning ‘suspected membership’ and ‘a group suspected of being involved in criminal conduct’

7.5.1.    which conclusions did not reflect the statutory requirement that the Minister ‘reasonably suspect’

7.5.2.    there was no evidence upon which a reasonable suspicion could be formed;

7.5.3.    further it was not open on the basis of the information before the Minister to form a reasonable suspicion.

7.6    Relying upon the Issues paper which at paragraph [35] refers to the declaration pursuant to the Criminal Code (Criminal Organisations) Regulation 2013 which declaration could not be inferred to be probative of the Mongols motorcycle club being involved in criminal conduct.

7.7.    Failing to distinguish at paragraph [17] between dispositions involving incarceration and a suspended sentence.

7.8.    In the alternative, in the event that it is inferred that the Minister considered rehabilitation, the Minister erred in inferring at paragraph [18] that Mr Stevens’ ‘membership with an OMCG and their involvement with organised crime’ was relevant.

7.9.    Engaging in a reasoning process paragraph [18] which was contrary to the material before the Minister which indicated that ‘most OMCG chapters do not engage in organised crime as a collective unit’

7.10    There was no rational basis upon which the Minister could conclude at [44] of the reasons that it was in the national interest to cancel Mr Stevens’ visa, and the Minister failed to engage in logically probative reasoning in so concluding:

7.10.1.    The Minister at [22] failed to form any view concerning the individual circumstances of Mr Stevens but rather concluded that having regard to the suspected membership of a group suspected of being involved in criminal conduct, ‘.. excluding such persons from the Australian community will contribute to national law enforcement efforts, including and disabling such groups suspected of being involved in criminal conduct..”

7.10.2.    The finding at [22] was irrational and contrary to the material before the Minister concerning most members of OMCG's not engaging in criminal conduct;

7.10.3.    The factors at [25] including those concerning the best interests of minor children, did not support cancellation;

7.10.4.    The conclusion at [44] concerning the cancellation of Mr Stevens’ visa being in the national interest was not logically supported by the findings at [22].

115    The determination of other grounds of this application have the effect of rendering it unnecessary to determine some of the issues raised in ground 7. As confirmed in oral submissions, ground 7 is intended to allege that the Minister’s decision was affected by unreasonableness in the legal sense explained by the High Court in Li, for the variety of reasons given in the ten subparagraphs.

116    In Stretton, Allsop CJ said (at [8]) that the content of the concept of legal unreasonableness is “derived in significant part from the necessarily limited task of judicial review”. His Honour continued:

8    … The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

…

21    The difficulty with the reasoning [of the primary judge] is that it is expressed as the primary judge’s view as to what was reasonable. He, himself, makes an evaluation of what is necessary for the protection of the Australian community, principally, if not wholly, however, by reference to the young children in Mr Stretton’s immediate family. It would seem that this approach was brought about by a view of the need for the assessment to be objectively unreasonable. This does not carry with it the authority for the Court to reach its own view of what is reasonable or not, or what is necessary, and then, without more, to supplant the view of the Minister. It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is unreasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. The decision and statutory context in Li was an example of this. Here, the decision was not a procedural decision; it was a substantive one concerned with an evaluation of the protection of the Australian community by a Minister of the Crown, personally.

117    There are, in my opinion, several subparagraphs of this ground that Mr Stevens cannot make out except by reference to all of the material before the Minister, including the protected material. Those subparagraphs are: [7.1], [7.2], [7.3], [7.5], [7.8], [7.9] and, subject to what is said below, [7.10]. For the reasons given above in connection with ground 4, the question of whether or not the findings made, inferences drawn or reasoning engaged in by the Minister were affected by legal unreasonableness cannot be answered except by reference to all of the materials before the Minister, including the withheld information contained in Attachment Z to the Briefing Paper. The contentions made in those subparagraphs cannot be established on the material before the Court on this application. I have noted in this regard that the Minister acknowledges that he had regard to protected information in determining whether he reasonably suspected Mr Stevens did not pass the character test. His acknowledgement in that regard was not expressly confined to that part of the character test prescribed in s 501(6)(b). I infer therefore that the protected information also bore on that part of the test prescribed in s 501(6)(a). It is for that reason that I have included [7.1] and [7.2] in this aspect of my judgment. The grounds of review alleged in subparagraphs [7.1], [7.2], [7.3], [7.5], [7.8], [7.9] and [7.10] are not made out.

118    The grounds in [7.1] and [7.2] fail for the additional reason that the Minister was not required, on the material before him, to make a “finding concerning rehabilitation” from a risk of harm perspective. The Minister did not in any event infer “lack of rehabilitation” as alleged in [7.1]. As I have found in determining ground 1 of this application, the Minister went no further than to conclude that Mr Stevens may have rehabilitated, but that his membership of the Mongols OMCG was a countervailing consideration in that regard.

119    Subparagraph [7.4] is capable of determination without reference to the protected materials. It involves a standalone contention that evidence of an operation of the Australian Crime Commission code-named Operation Morpheus was not probative of the questions arising under s 501(6)(b)(ii) (involvement of the Mongols OMCG in criminal conduct) and s 501(3)(d) (the national interest). It is submitted that as Operation Morpheus ended in December 2015, it was not open to the Minister to conclude, as he did, that the fact of the operation “reflects the view of the Australian Crime Commission that OMCGs remain one of the most high profile manifestations of organised crime”. In my opinion, this ground does not establish legal unreasonableness in the relevant sense. The complaint made in this subparagraph, in common with some other subparagraphs of ground 7, amounts to an attack on the merits of a factual finding without any attempt to demonstrate how that error, if made, amounts to an unreasonable exercise of the statutory power in issue. I would in any event conclude that it was open to the Minister to make the findings that he did by reference to the materials concerning Operation Morpheus, irrespective of whether he had material before him evidencing that the operation had concluded six months previously (which is not established). The fact of the operation remained probative of the Australian Crime Commission’s attitude to OMCG’s and was but one circumstance in a rubric of findings that bore on the preconditioning criteria for the exercise of the power.

120    No oral or written submissions were advanced in support of the contention in [7.6]. Although there is reference in the Briefing Paper to the Criminal Code (Criminal Organisations) Regulation 2013 (Cth), the Reasons of the Minister make no reference to that regulation. In the absence of submissions demonstrating whether (and, if so, how) the Minister reasoned from that Regulation, the underlying complaint of legal unreasonableness cannot be sustained. The onus is upon Mr Stevens to make out his grounds of review. It is not sufficient to merely raise the ground but make no submissions in support of it.

121    The allegation in [7.7] is answered by a practical and common sense reading of the Reasons without an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The Minister stated (at [17]):

In considering the national interest, I considered Mr STEVENS’ substantial criminal record. I noted that dispositions involving incarceration are a last resort in sentencing hierarchy, and as a result I found that the court viewed Mr STEVENS’ offending in 1993 as serious due to his sentence of 15 months imprisonment (suspended upon entering into a two year bond).

122    The Minister clearly proceeded on the factual basis that Mr Stevens’ sentence of imprisonment was suspended. The Minister’s reference to “dispositions involving incarceration” as a last resort in the sentencing hierarchy is to be fairly understood as involving all dispositions involving incarceration, including suspended terms of imprisonment. That is not an illogical conclusion, nor does it evidence error on the part of the Minister in assessing or attempting to assess the seriousness of Mr Stevens’ prior offending. More importantly, however, it is not shown how an error of the kind alleged in this ground would constitute jurisdictional error.

123    Subparagraph [7.8] contends that Mr Stevens’ membership of an OMCG was irrelevant on an assessment of whether Mr Stevens had rehabilitated since his criminal conviction. Underlying that contention is the proposition that a person may be a member of a group that is involved in criminal conduct without any personal involvement in the criminal conduct in which the group itself is “involved”. For reasons I have already given, I do not interpret the Minister’s reasons as evidencing any settled view that Mr Stevens had not rehabilitated. The Minister, in my opinion, pointed to the status of membership in an OMCG as a matter that may logically indicate that Mr Stevens had not rehabilitated in respect of past criminal conduct that, it is to be recalled, involved an offence of conspiracy. There is, in my opinion, some intelligible justification underlying that reasoning, discernible by reference to the terms of the statute itself. The policy underlying s 501 of the Act is that the Minister’s reasonable suspicion that a person is a member of a group described in s 501(6)(b) is sufficient to meet the relevant threshold condition for the cancellation of a visa. The Act contemplates that a visa holder’s mere membership of such a group may properly be regarded as reflecting adversely on his or her “character” in the statutory sense of that word. Insofar as the Minister reasoned in that way, the reasoning was consistent with the policy underlying the power exercised by him and could not, for that reason, be affected by legal unreasonableness in the sense explained by the High Court in Li.

124    In addition to what I have said in [107] to [109] of these reasons in relation to the operation of s 503A of the Act, the matters alleged in [7.10.1], [7.10.2] and [7.10.4] in my opinion are not established insofar as they rely on discrete passages contained in the materials that have been disclosed to the Court. One such passage, extracted from a report of the Australian Crime Commission titled Outlaw Motorcycle Gangs reads as follows:

‘.. OMCG chapters pose a serious risk to public safety because they are liable to react violently to attempts by rival OMCGs to poach members or encroach on their ‘territory’. In these circumstances, OMCG members have on a number of occasions (notably on the Gold Coast and at Sydney Airport) paid scant regard to the safety of innocent bystanders.

Aside from these examples of group violence, most OMCG chapters do not engage in organised crime as a collective unit. Rather, their threat arises from small numbers of members conspiring with other criminals for a common purpose.’

(emphasis added)

125    The emphasis is the applicant’s. It is contended that it was not open to the Minister in light of the emphasised passage to form a reasonable suspicion that the Mongols OMCG has been or is “involved” in criminal conduct within the meaning of s 501(6)(b)(ii) of the Act. I do not accept that argument. As Perry J explained in Roach (at [171]) the Minister may form a reasonable suspicion that a group is involved in criminal conduct if he or she reasonably “suspects that members of the group commit crimes in their capacity as members of the group, using facilities or resources of the group, or with the group’s express or tacit approval”.

126    The applicant’s submissions ignore the examples of group violence referred to in the materials. It was open to the Minister to conclude that the group violence in and of itself constituted criminal conduct. It is then submitted that it was not open to the Minister to conclude that the specific “chapter” of the Mongols OMCG was involved in criminal conduct in the absence of direct evidence to that effect. That submission is not made out. It was open to the Minister to extrapolate from material concerning OMCG’s generally so as to form a reasonable suspicion that the Mongols OMCG and, so far as necessary, the particular chapter of which Mr Stevens formed a part, was involved in criminal conduct and that it had members that conspired with other criminals for a common purpose. It was also open to the Minister to conclude that such criminal conduct was engaged in using facilities or resources of the group or with the group’s express or tacit approval. It matters not whether the Court might arrive at a different view based upon the same materials. It is not for the Court to substitute what it considers to be a reasonable finding.

127    Further, it was open to the Minister to proceed on the basis that exclusion of members of groups such as the Mongols OMCG from the Australian community will contribute to national law enforcement efforts by the “disabling” of such groups, and that cancellation of Mr Stevens’ visa was in the national interests for reasons that included that reason. A group may be disabled by the enforced removal of those persons who collectively constitute it.

128    I also reject the applicant’s submission that the Minister’s conclusion “involved disproportionate means of pursuing the purpose of disrupting the activities of OMCG’s”. That submission invites the Court to engage in the very kind of reasoning as to “proportionality” that was disapproved of by the Full Court in Stretton at [21], extracted at [116] of these reasons. The Minister’s reasoning, in my opinion, was consistent with the policy objectives underlying an Act which expressly empowers the Minister to cancel the visa of a person on the basis of a reasonable suspicion of mere membership of the relevant group, without satisfaction (or even reasonable suspicion) that the visa holder has an “association” with the group, and without forming any positive state of satisfaction as to whether the group is involved in criminal conduct at all. The legal reasonableness of the decision is to be assessed against that statutory framework.

129    Subparagraph [7.10.3] alleges that the Minister failed to engage in logically probative reasoning in considering the best interests of Mr Stevens’ minor children. The Minister determined that the interests of the minor children were outweighed by other considerations (at [44]). The relative weight to be ascribed to competing considerations is ordinarily a matter for the decision-maker. However, as I observed in Singh v Minister for Immigration and Border Protection (2016) 240 FCR 1 at [38] – [39], it is not correct to say that an error in the ascription of weight cannot in any circumstance constitute jurisdictional error: see also Peko Wallsend at 41 (Mason J). The question or whether or not an error affecting the relative ascription of weight is a jurisdictional error can only properly be determined by reference to all of the material before the decision-maker. To the extent that this ground invited the Court to identify an error on the materials that are presently before the Court, no such error is made out.

CONCLUSION

130    All of the separate issues forming the subject of these reasons are determined against the applicant.

131    I will make orders providing for the deferment of ground 3 pending the determination of grounds 5 and 6 of this application by the Full Court. Should the Full Court determine that either ground 5 or ground 6 of the application is made out, it may not be necessary to determine ground 3 of the application on its merits at all.

Associate:

Dated:    2 November 2016