FEDERAL COURT OF AUSTRALIA

Zaburoni v Minister for Immigration and Border Protection [2017] FCA 654

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant must pay the respondent’s costs as agreed or taxed.

3.    The respondent has leave to file an application for a lump sum award of costs and supporting affidavit by 27 June 2017.

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

REASONS FOR JUDGMENT

FARRELL J:

1    Mr Zaburoni is a citizen of Zimbabwe where he was born. He arrived in Australia in December 1997 (aged 19) on a temporary work (entertainment) visa. He was granted a Partner (Residence) (Class BS) (Subclass 801) visa in October 2007. The Minister for Immigration and Border Protection personally decided to cancel Mr Zaburoni’s visa under s 501(2) of the Migration Act 1958 (Cth) on 12 September 2016.

2    In broad terms, s 501(2) empowers the Minister to cancel a visa if two tests are satisfied. First, the Minister must reasonably suspect that the visa holder does not pass the “character test”: s 501(2)(a). Relevantly, a person does not pass the “character test” if he has a “substantial criminal record” (see s 501(6)(a)) and he is deemed to have such a record if he has been sentenced to a term of imprisonment of 12 months or more (see s 501(7)(c)). Mr Zaburoni concedes that he did not pass the character test because he was sentenced to five years’ imprisonment following a conviction for unlawfully doing grievous bodily harm recorded in the District Court of Queensland on 3 June 2016. Second, the visa holder fails to satisfy the Minister that he or she passes the character test: s 501(2)(b). On 17 June 2016, a “Notice of intention to consider cancellation of your visa under s 501(2) of the Migration Act 1958” was issued to Mr Zaburoni by the Department of Immigration and Border Protection. Following receipt of submissions and other material from Mr Zaburoni in July and August 2016, the Minister was not satisfied that he passed the character test. On 12 September 2016, he decided to cancel Mr Zaburoni’s visa and issued a Statement of Reasons for that decision.

Application For Relief

3    Mr Zaburoni seeks to quash the Minister’s decision on three bases.

4    The first basis is that the decision to cancel the visa was legally unreasonable. Mr Zaburoni says that there was no evidentiary basis for the assumptions underlying the Minister’s conclusion that there was an ongoing risk that Mr Zaburoni would reoffend and expose the Australian community to great harm.

5    The second basis is that the Minister fell into error of law on the face of the record and/or jurisdictional error by failing to give effect to the proper meaning of the discretionary aspects of s 501(2). This ground is focussed on the Minister’s alleged failure to give effect to the legislative intent of the section; that is, to consider exercising a discretion not to cancel a visa where there are “strong” countervailing considerations such as those put forward by Mr Zaburoni in his submissions in response to the notice of intention to cancel his visa.

6    The third basis is that the Minister fell into jurisdictional error because:

(1)    he applied the wrong legal test in that he started his consideration from a “leaning position” adverse to Mr Zaburoni, with the stated intention to deport “wherever possible”; and

(2)    he was afflicted by ostensible or apprehended bias because of the approach disclosed in two radio interviews with him conducted by Mr Ray Hadley and 21 April 2016 and 9 June 2016, at a time before the Department issued a notice of intention to cancel his visa and before the Minister received submissions and other material from Mr Zaburoni in response to the notice.

Background

7    Mr Zaburoni was diagnosed with human immunodeficiency virus (HIV) in April 1998. He was advised by three medical practitioners (including two specialists in the field of sexually transmitted diseases) that his disease was sexually transmissible, he should begin using antiretroviral medication, he should inform potential sexual partners of his HIV positive status, and he should use a condom during sexual intercourse.

8    In January 2007, Mr Zaburoni commenced a sexual relationship with a woman. Before commencing the sexual relationship, the woman asked Mr Zaburoni whether he had any sexually transmitted diseases including HIV. He told her that he had been tested and he did not. They had unprotected sexual relations on many occasions. In late June 2007, Mr Zaburoni and the woman moved in together. Their relationship ended in September 2008. When the woman had persistent symptoms, she sought medical assistance and was advised that she had a 60% chance of having HIV. She questioned Mr Zaburoni and he denied that he was HIV positive. In September 2009, the woman again questioned Mr Zaburoni who told her that he became aware of his HIV positive status six months earlier. The woman was diagnosed as being HIV positive the next day.

9    On 18 April 2013, Mr Zaburoni was convicted of unlawfully transmitting a serious disease (HIV) to another with intent to do so following a trial in the District Court of Queensland. He was sentenced to a term of imprisonment of nine years and six months. He was not convicted on an alternative count of unlawfully doing grievous bodily harm, to which he had pleaded guilty.

10    Mr Zaburoni successfully appealed his conviction in the High Court on the basis that the evidence was not capable of establishing to the criminal standard that he intended to transmit HIV to the woman who had been his partner. On 6 April 2016, the High Court substituted a verdict of guilty of unlawfully doing grievous bodily harm and remitted the proceeding to the District Court of Queensland for sentencing: see Zaburoni v The Queen (2016) 256 CLR 482; HCA 12.

11    Shortly afterwards, on 21 April 2016, the Minister, the Honourable Peter Dutton MP, appeared on a radio program hosted by Mr Ray Hadley in which he responded to remarks made by Mr Hadley concerning the High Court’s decision: see [54]-[56] below.

12    On 3 June 2016 the District Court of Queensland sentenced Mr Zaburoni to five years imprisonment for unlawfully causing grievous bodily harm. The sentence was suspended and Mr Zaburoni was released from prison immediately. The Court found that, having regard to Mr Zaburoni’s guilty plea, he might have expected to have been released in 18 to 20 months. The sentence was suspended because Mr Zaburoni had already served three years and two months by the time he was sentenced

13    On 9 June 2016, the Minister again participated in a radio interview with Mr Hadley. During the interview, the Minister discussed matters relevant to his portfolio, including Mr Zaburoni’s migration status: see [57]-[59] below.

14    As mentioned above, on 17 June 2016, the Department issued a notice of intention to consider cancellation of his visa.

Mr Zaburoni’s submissions to the Minister

15    Mr Zaburoni lodged submissions with the Department dated 14 July and 22 August 2016, seeking to satisfy the Minister that he passed the character test and his visa should not be cancelled. The submissions and materials attached to them addressed a range of issues including the following:

(1)    Mr Zaburoni had no prior convictions; he pleaded guilty to causing grievous bodily harm to his ex-partner and has demonstrated genuine remorse and insight into the seriousness of his conduct and the impact on his ex-partner. Eight years had elapsed since his offending in 2007-08, an indicator of his rehabilitation. Mr Zaburoni is committed to never repeating the conduct.

(2)    Advice from a clinical psychologist working with Western Sydney Local Health District, a doctor working at the Western Sydney Sexual Health Centre and the manager of the Western Suburbs Haven (which provides convalescent/respite care and social support for people living with HIV/AIDS, their carers and families). Advice from both the doctor and psychologist was to the effect that people from a variety of African cultural backgrounds often have a different and fearful understanding of HIV and its physical and socially ostracising consequences. They also have a different understanding of the role of authorities, including medical authorities, in assisting rather than punishing patients with HIV.

(3)    The psychologist and doctor agreed that Mr Zaburoni’s failure to either accept his diagnosis in 1998 or act in accordance with medical advice (including advice designed to prevent transmission of HIV) was consistent with a psychological adjustment disorder.

(4)    The doctor concluded that the psychological factors which had influenced Mr Zaburoni’s conduct toward his ex-partner had been resolved. Based on Mr Zaburoni’s observed behaviour, the doctor was confident he would not reoffend in that manner and he could be relied upon to continue appropriate treatment.

(5)    The psychologist, who treated Mr Zaburoni between 2010 and March 2013 (after which he was incarcerated), issued a report dated 18 July 2016. She stated that since 2010, Mr Zaburoni has accepted advice to manage his disease through antiretroviral treatment and to prevent infection of others through safe sex practices. Mr Zaburoni actively participated in therapy and by 2012 demonstrated behavioural changes. In her opinion, Mr Zaburoni was “at low risk to the community of placing others at risk of contracting HIV. He cannot be rated as zero risk because in general, previous behaviour is a predictor of future behaviour”. She went on to say that, for Mr Zaburoni, there are several factors which reduce his risk: he engaged well with HIV services and is optimistic about the future, he has experienced the legal and social consequences (to himself and others) of non-disclosure and he has experienced the positive consequences of disclosure which challenged his previous actions and beliefs that disclosure would involve catastrophic and unacceptable personal risk.

(6)    Mr Zaburoni is now aware of his obligations to sexual partners, he has an undetectable viral load and uses condoms. When a condom is used correctly, or the HIV positive partner has a very low or undetectable viral load or the HIV negative partner is taking effective pre-exposure prophylaxis, there is a negligible possibility (being a less than 0.016% to less than 0.0016% chance) of transmission from vaginal-penile intercourse. The risk of HIV infection from Mr Zaburoni therefore approaches zero. Cited in support of these propositions concerning HIV are a publication in the New England Journal of Medicine in August 2011 entitled “Prevention of HIV-1 infection with early antiretroviral therapy” and a publication in Clinical Infectious Diseases, an official publication of the Infectious Diseases Society of America, in July 2014 titled “Heterosexual risk of HIV transmission per sexual act under combined antiretroviral therapy: systematic review and bayesian modeling”.

(7)    As part of his rehabilitation, he has worked on a voluntary basis with a number of charitable organisations focussing on HIV/AIDS (including the Haven and ACON) and used his skills in acrobatics and circus to contribute to the community by providing workshops and classes at Redfern Community Health Centre and for several Councils.

(8)    His partner of four and a half years is a nurse with experience in HIV health. She has been a positive role model and supported him so that he feels safe taking treatment and working on his rehabilitation through networking with others in the HIV health field. They wish to marry and start of family. Sperm washing and in-vitro fertilisation procedures, which would protect his partner, may not be affordable or available in Zimbabwe.

(9)    He has lived and worked in Australia for 19 years, half of his life. He has strong ties in Australia through his partner and the network of friends and colleagues developed through his work as a performer and voluntary work. Cancellation of Mr Zaburoni’s visa would put strain on his relationship with his partner and cause her irreparable emotional anguish. It would cause his partner and her family hardship and pain if she were forced to leave Australia to be with him, as well as the loss to the Australian community of her skills.

(10)    If he was returned to Zimbabwe, Mr Zaburoni would be at risk of significant physical and psychological harm. He has a well-founded fear of persecution in Zimbabwe due to his membership of the social group of people living with HIV and because of the widespread publicity attendant on his case. He would be at risk of harm from the community and the state in Zimbabwe and would experience violence, severe discrimination, social ostracism and inadequate access to medical care. The stigma was likely to affect his whole family and they would face financial difficulty as Mr Zaburoni would struggle to find employment in Zimbabwe to support them (as he currently does) and he would face high healthcare costs. Mr Zaburoni’s claims should be assessed having regard to the Convention relating to the Status of Refugees and Australia’s non-refoulement obligations.

16    By a letter dated 13 September 2016, the Department advised Mr Zaburoni of the Minister’s decision and attached a copy of the Reasons. On the same day, Mr Zaburoni was taken into immigration detention.

The Minister’s Reasons

17    In his Reasons, the Minister recorded the thrust of the submissions made by Mr Zaburoni and material matters from reports attached to the submissions.

18    The Minister considered Mr Zaburoni’s conduct referred to in paragraphs [7]-[8] above. The Minister had regard to material provided to a Court that reveals that Mr Zaburoni lied to “the victim” about his HIV-positive status and knowingly had unprotected sexual intercourse with her on multiple occasions, thereby exposing her to a risk of contracting HIV. He found Mr Zaburoni’s disregard for the welfare of his ex-partner to be abhorrent and that it exposed her to a lifelong illness which is being managed with HIV treatment. He found Mr Zaburoni’s conviction for grievous bodily harm to be “very serious”: Reasons at [18]-[21].

19    In 2005, Mr Zaburoni was required to provide a blood test in order to satisfy the health requirement of his partner visa application. He arranged for a friend to take the blood test on his behalf. As a result, he passed the health requirement and was granted a partner visa. The Minister found that this conduct was a serious breach of trust and indicative of Mr Zaburoni’s poor character: Reasons at [22]-[23].

20    Under the heading “Risk to the Australian Community”, the Minister:

(1)    considered the material in the reports provided by the psychologist, the doctor, the manager of the Western Suburbs Haven and Queensland Positive People; and a submission that eight years had passed since his offending and that this should be taken as an indication of his rehabilitation;

(2)    accepted that Mr Zaburoni has a better understanding of the severity of his medical condition and the impact of his actions on his ex-partner and on future sexual partners and that he discloses his HIV status to sexual partners;

(3)    noted Mr Zaburoni’s commitment to never repeat his conduct, his relationship with his partner of four years and the support he derives from it; that Mr Zaburoni had continued to work on his rehabilitation through his voluntary work at the Haven and ACON; that he wants to reduce the stigma and discrimination of being HIV positive and empower others to learn from his mistakes; that he has no prior criminal convictions and has not been convicted of further offending since his release from custody; and

(4)    rejected Mr Zaburoni’s representative’s assertion that his offending was “an isolated incident” as he had had repeated and unprotected sexual relations with his ex-partner while knowing he was HIV positive, exposing her to serious harm. The Minister also found that, prior to her diagnosis, Mr Zaburoni’s ex-partner could potentially have placed other members of the community at risk of contracting HIV.

(5)    The Minister concluded:

41.    I find that Mr ZABURONI’s offending showed disregard for the welfare of his then partner and resulted in great harm for the victim who was subsequently diagnosed as HIV positive and is now subject to lifelong treatment for this condition. I have also considered that Mr ZABURONI’s offending had the potential to cause great harm to the wider community.

42.    In assessing the likelihood of Mr ZABURONI re-offending, I have considered that since 2010, he has managed his HIV with ongoing antiretroviral medication, has demonstrated greater social responsibility and has demonstrated progress towards his rehabilitation.

43.    Notwithstanding this progress, I have regard for [the psychologist’s] opinion that although there is a low risk of Mr ZABURONI placing others at risk of contracting HIV, he cannot be considered a zero risk because previous behaviour is a predictor of future behaviour.

44.    I therefore find that there is an ongoing risk that Mr ZABURONI will re-offend, albeit a low risk.

45.    If Mr ZABURONI did engage in further criminal conduct of a similar nature, it could result in conduct that could cause psychological and/or physical harm to a member of the Australian community.

21    In relation to “Expectations of the Australian community”, the Minister was mindful of “the principle that the Australian community would expect that noncitizens who commit serious crimes in Australia can and should have their visas cancelled”. The Minister noted submissions made on Mr Zaburoni’s behalf that the government should consider community standards as they adapt and change, and that the Australian society is founded on the idea of a “fair go”. This would extend to giving a fair go to someone who had rehabilitated and become a person wanting to move forward and contribute positively to society. However the Minister noted the circumstances of Mr Zaburoni’s conviction, that the offending “shows disregard for the welfare of his then partner and for the broader community” and stated that “[t]he Australian community would expect that Mr ZABURONI as a non-citizen would obey Australian laws, and as he has breached that trust and been convicted of a serious offence in Australia, it may be appropriate to cancel his visa”: Reasons at [47]-[50].

22    In relation to “International non-refoulement obligations”, the Minister noted that Mr Zaburoni was able to make a valid application for another visa and was not prevented by s 48A of the Migration Act from making an application for a protection visa. Thus “it is unnecessary to determine whether non-refoulement obligations are owed to Mr Zaburoni for the purposes of this decision” under s 501(2).

23    In relation to “Ties to Australia”, the Minister accepted that Mr Zaburoni has established roots in Australia and noted his work as an acrobat, his service as a disability support worker with various organisations and his voluntary work. The Minister also accepted that Mr Zaburoni has family ties in Australia. He noted Mr Zaburoni’s relationship with his partner of over four years, their desire to marry and start a family and that procedures to allow them to have children safely and ensure that she does not contract HIV may not be affordable or available in Zimbabwe. The Minister said that he had considered that Mr Zaburoni’s partner may face a difficult decision whether to follow him to Zimbabwe if he were to be removed and noted her parents’ concern that she will be settling in a foreign country with a profoundly different culture and lifestyle with healthcare that is not equivalent to the standard available in Australia. The Minister accepted that Mr Zaburoni’s partner would experience emotional and possibly financial hardship and that Mr Zaburoni had been making a positive contribution to the community through his employment and volunteer work. He found that cancellation of Mr Zaburoni’s visa would not significantly compromise the delivery of a major project or important service in Australia, contrary to the submission that his performance skills are unique and would be a great loss for the growing performance industry in Australia.

24    The Minister found that Mr Zaburoni may suffer hardship associated with unemployment and may have difficulty accessing antiretroviral medication in Zimbabwe but there were no cultural or language barriers that would impede his resettlement in Zimbabwe. The Minister noted and said that he took into account Mr Zaburoni’s concerns that he and his family would be ridiculed and socially ostracised because of his HIV status.

25    The Minister’s conclusion is set out in full at [29] below.

26    On 7 December 2016, Mr Zaburoni and his partner departed Australia voluntarily. The Court was advised that at the time of the hearing, they resided in South Africa.

First basis: Was the Minister’s decision to cancel Mr ZaburonI’s visa legally unreasonable?

Mr Zaburoni’s submissions

27    Mr Zaburoni says that the Minister’s decision was legally unreasonable because it was based on one or more of the following assumptions for which there was no evidence: first, Mr Zaburoni and his partner of four years would separate and/or he would be unfaithful; second, he would cease treatment for his HIV condition; third, he would allow his HIV condition to deteriorate to the extent that his viral load would not be suppressed; fourth, he would commence a new sexual relationship and not tell his partner that he was HIV positive; and fifth, he would not use condoms in the subsequent relationship.

28    Mr Zaburoni submitted (and the Minister did not dispute) that the principles as to legal unreasonableness, as relevant to his application, derive from the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; HCA 18 at [68], [71]-[74], [76], [82] and [85] which he summarised as follows:

(1)    Legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably. The task is not definitional, but one of characterisation. The decision is to be evaluated and a conclusion is to be reached concerning whether the decision can be said to be within the range of possible lawful outcomes as an exercise of power. The decision must not have the character of being unreasonable in the sense of lacking rational foundation or evident or intelligible justification; or be plainly unjust, arbitrary, capricious, or lack common sense having regard to the terms, scope and purpose of the statutory source of the power and any other values explicit or implicit in the statute: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; FCAFC 11 at 3-6 per Al1sop CJ.

(2)    A finding of legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence before the Court, including any inferences which may be drawn from that evidence: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; FCAFC 1 at [42].

(3)    Where there are reasons given for the exercise of power, the supervising court should look at those reasons in order to understand why the power was exercised as it was: Singh at [47]. I note that the Court went on to say that this is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court.

29    Mr Zaburoni focussed on the Minister’s concluding remarks in the Reasons, and in particular on paragraphs [72]-[76]. It is useful to set out the concluding remarks in full:

CONCLUSION

70.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act and (2) all other information available to me, including information provided by, or on behalf of Mr ZABURONI.

71.    Mr ZABURONI has committed a very serious crime that of grievous bodily harm, and Mr ZABURONI and non-citizens who commit such an offence should not generally expect to be permitted to remain in Australia.

72.    I find that the Australian community could be exposed to great harm should Mr ZABURONI re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr ZABURONI. The Australian community should not tolerate any further risk of harm.

73.    I found the above consideration outweighed the countervailing considerations in Mr ZABURONI’s case, including the impact on his partner and non-refoulement obligations if they exist.

74.    I have also considered the length of time Mr ZABURONI has made a positive contribution to the Australian community through his employment and volunteer work, including his work to educate people about HIV/AIDS through his life experience.

75.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa.

76.    In reaching my decision I concluded that Mr ZABURONI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

77.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr ZABURONI’s Partner (Residence) Visa (Class BS) (Subclass 801) under s501(2) of the Migration Act.

30    Mr Zaburoni submitted that the Minister’s finding of an ongoing risk of “great harm” to the Australian community was critical to his reasoning in assessing any risk of recidivism against countervailing considerations; it was the foundation on which the cancellation decision rested (citing Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29; FCAFC 61 at [82] per North J) and there was legal unreasonableness in it.

31    The risk identified by the Minister was that Mr Zaburoni would “reoffend” (Reasons at [44]). That is, that he would repeat the conduct for which he was convicted (unprotected sexual intercourse with a partner to whom he had not disclosed his HIV positive status). There was legal unreasonableness in the finding that that conduct would result in harm (the transmission of HIV) because, in assessing the issue of recidivism, the Minister entirely failed to consider the fact that (as a result of his medical treatment) Mr Zaburoni was no longer physically capable of committing any offence of the kind for which he was convicted. Further, the doctor’s report stated that Mr Zaburoni is “no risk” and “not a risk” to the Australian community.

32    Mr Zaburoni says that the Minister’s finding that he could cause “great harm” was premised on factual circumstances that did not exist at the time the decision was made. The expert medical evidence before the Minister was that “the risk of HIV transmission from a person with HIV infection on antiretroviral treatment and with undetectable HIV on testing is virtually zero”. The written submissions to the Minister quantified that risk as being less than 0.016% to less than 0.0016%: see [15(6)] above. The Minister accepted that Mr Zaburoni had a “low or undetectable viral load” at the time he made his decision (Reasons at [34]). In those circumstances, the Minister’s decision to cancel the visa on the basis that Mr Zaburoni could cause “great harm” is a result which “itself bespeaks error” in the language of Li at [85].

33    The Minister’s finding required the making of a “highly counter-intuitive finding” that Mr Zaburoni would, at some stage in the future, cease treatment for his potentially life-threatening condition. Such a finding would plainly be illogical. The situation is not comparable to a “regular” offender who remains at risk of committing offences due to prior history. The effect of medication substantially reducing or negating the risk of transmission of HIV required a fundamentally different approach by the Minister to his assessment of recidivism.

Consideration

34    These concepts may be drawn from the decision of the High Court in Li and the Full Court in Stretton and Singh. Section 501(2) does not indicate the matters that the Minister must or may take into account in exercising the discretion conferred by that section. The statement of objects of the Migration Act in s 4(1) is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. The concept of the “national interest” is necessarily broad and involves an evaluative judgment on a wide range of potentially relevant matters. The Minister’s discretion is therefore broad, although it remains subject to the legal presumption that, absent clear words to the contrary, Parliament intends that such a discretionary power is to be exercised reasonably. One of the matters which inform the legal standard of reasonableness is that the discretion is a substantive (not procedural) power, concerned with the evaluation of the protection of the Australian community conferred personally on a Minister who holds a political office accountable to the Parliament. Generally speaking, the intensity of the legal standard is likely to be higher in review of the exercise of discretion on a procedural matter. Within the bounds of legal unreasonableness, there is an area in which the Minister has a genuinely free discretion. It is critical that the Court not exceed its supervisory role by venturing into the merits of the Minister’s exercise of his discretionary power.

35    The premises behind Mr Zaburoni’s submissions are that he is not now physically capable of transmitting the HIV virus and there is either no possibility that Mr Zaburoni will re-offend in the sense of engaging in unprotected sexual relations with a partner who did not know of his HIV status at a time when he was capable of transmitting the HIV virus or that prospect is so remote that it was legally unreasonable for the Minister to take it into account. Those premises are faulty.

36    The Minister considered the medical evidence that since 2010 Mr Zaburoni has been compliant with his treatment regime, his viral load is low or undetectable, he discloses his HIV status to sexual partners and he noted that it is Mr Zaburoni’s intention never to re-offend: Reasons at [34].

37    However, the evidence of both the doctor and the psychologist is not unequivocal. The evidence supports the conclusion that as long as Mr Zaburoni continues treatment so that he maintains an undetectable viral load and otherwise takes steps to protect his partner, the risk that he will transmit the HIV virus to sexual partners is “virtually zero”. The evidence is not that Mr Zaburoni is not and will always be not “physically capable” of transmitting the HIV virus.

38    The doctor’s evidence as summarised by the Minister is that “Mr ZABURONI was not a risk to the Australian community because he had demonstrated responsible sexual behaviour since 2010 and his HIV was stable and controlled with treatment… the psychological factors that influenced Mr ZABURONI’s inappropriate behaviour towards his sexual partner in the past have been entirely resolved and was confident that based on his subsequent observed behaviour, he would not re-offend in that manner in the future” (Reasons at [28]). The statement that “his HIV was stable and controlled with treatment” reflects the doctor’s report which relevantly states “his HIV is stable and controlled on HIV treatment, with undetectable virus levels, preventing HIV transmission to any sexual partner in future as long as he remains on treatment” (emphasis added): Agreed Tender Bundle at 191.

39    The psychologist’s evidence is that Mr Zaburoni was “at low risk to the community of placing others at risk of contracting HIV. He cannot be rated as zero risk because in general, previous behaviour is a predictor of future behaviour” (emphasis added): Reasons at [31] and Agreed Tender Bundle at 190. While it is true that the psychologist goes on to mention factors which reduce Mr Zaburoni’s risk (see [15(5)] above), her conclusion remains that relied on by the Minister.

40    The Minister was not required to make the assumptions alleged by Mr Zaburoni to come to the view that he did concerning the risk that Mr Zaburoni might re-offend and there is no evidence that he did. As the decision-maker, it is a matter for the Minister whose opinion he prefers as between the doctor (that Mr Zaburoni will not re-offend) and the psychologist (that the risk that Mr Zaburoni might re-offend was low but cannot be excluded) and the weight to be accorded to the opinions. The Minister did not ignore the medical evidence: see Reasons at [25]-[31] and [34]. While it might be irrational conduct for Mr Zaburoni to cease treatment and otherwise engage in the conduct which led to his conviction, that “low risk” possibility was not excluded on the evidence before the Minister. If that risk was realised, it is true that it could “cause psychological and/or physical harm to a member of the Australian community” (Reasons at [45]). HIV is an infectious disease which requires diligent lifetime management as an alternative to suffering serious detriment to health and quality of life for the sufferer and others. It was open to the Minister to form the view that this amounted to “great harm” and a risk to which members of the Australian community should not be exposed. Comparison with “regular offenders” is not fruitful.

41    While it would clearly have been open to the Minister to take a different view having regard to the evidence before him, the weight to be given to the low risk of Mr Zaburoni re-offending and the harm that might flow to the Australian community if he did, compared to other countervailing circumstances, was within the area in which the Minister had a genuinely free discretion on the facts of this case. The Minister had the authority to make the decision he did for the reasons that he gave. This ground is not made out.

Second Basis: Did the Minister fall into error by failing to give effect to the proper meaning of the discretionary aspects of s 501(2)?

Mr Zaburoni’s submissions

42    Mr Zaburoni submitted that the subject matter, scope and purpose of s 501(2) prescribes that the Minster can decide not to cancel a visa even where a non-citizen is found to fail the “character test” prescribed by s 501(6). In exercising the discretion, the Minister was required to weigh any countervailing considerations to cancellation put forward by a visa holder but he did not in Mr Zaburoni’s case. Mr Zaburoni relied on the Reasons at [75] (see [29] above). He says that, in effect, the Minister’s decision was that the risk of reoffending (no matter how small) outweighs any countervailing circumstance. The Minister cannot lawfully take that position. The Minister relied on “a finding of recidivism” on a basis (the psychologist’s statement that past conduct is a predictor of future behaviour) which was not personal to Mr Zaburoni. Such a finding would be common to all visa holders who first met the criteria under s 501(7)(a)-(d) (that is, a person who has been sentenced to death, to imprisonment for life, or to one or more terms of imprisonment which together total 12 months or more). On the Minister’s approach, he would never exercise the discretion not to cancel the visa of a person who fails the “character test” because they meet a criterion in s 501(7)(a)-(d).

43    Mr Zaburoni says that in this case there was no demonstrated “active intellectual process” of engagement with the countervailing circumstances, notwithstanding that the Minister refers to them in the body of the Reasons prior to the section headed “Conclusion”. The operative (if not only) factor that the Minister relied upon in exercising his discretion under s 501(2) adversely to Mr Zaburoni was the risk of recidivism. The Minister’s finding (at [75] of his Reasons) that “great harm” could be inflicted on the Australian community, reveals a quantum leap because it does not take into account all of the exculpatory and positive material before him. There is no analysis of that material and no expression of reasons leading to his conclusion. In adopting that approach, the Minister failed to give to the countervailing circumstances “proper, genuine and realistic consideration” resulting in an error of law amounting to jurisdictional error: see: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; FCA 713 at 292 affirmed in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; HCA 48 at [26] and [30].

Consideration

44    I do not accept these submissions and find that this ground has not been made out.

45    The Minister has correctly submitted that the epithet “proper, genuine and realistic consideration” needs to be viewed with considerable caution because it invites the Court to slide into an impermissible merits review: see SZQGC v Minister for Immigration and Citizenship [2012] FCA 598 at [32]. As noted by the High Court in SZJSS at [23]-[30], the phrase had its genesis in cases involving the ground of review in s 5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and refers to nothing more than the requirement that a decision-maker must have regard to the merits of the particular case, notwithstanding the existence of any departmental policy.

46    Having regard to the summary of the Reasons set out at [18]-[24] above, it is plain that the Minister did engage actively with the submissions concerning “countervailing circumstances” made on Mr Zaburoni’s behalf, including the reports by the doctor and psychologist, his ties to the community and the possible impact of the Minister’s decision on Mr Zaburoni, his partner and his family.

47    The language employed by the Minister “I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel a visa” (Reasons at [75]) is odd. It is not entirely clear what “I am cognisant” means in this context. It does have the flavour of an inflexible policy, but this paragraph must be read in the context of the Reasons as a whole.

48    I accept the Minister’s submission that the Minister’s reasoning disclosed in the Reasons as a whole cannot be reduced to the simple statement that the risk of re-offending (no matter how small) outweighed countervailing circumstances. For the reasons set out at [40] above, it was open to the Minister to find, as he says at [76] of the Reasons, that Mr Zaburoni represents an unacceptable risk of harm to the Australian community and that its protection outweighed countervailing considerations discussed earlier in the Reasons and referred to in summary form under the heading “Conclusion” at [70]-[74] (see [29] above).

Third basis: Bias related claims set out at [6] above

49    These issues derive from interviews on 21 April 2016 and 9 June 2016 conducted by Mr Ray Hadley with the Minister on commercial radio broadcast in at least Queensland and New South Wales. The format of the program was that Mr Hadley raised a number of matters on which he asked the Minister to comment.

50    Submissions were made on Mr Zaburoni’s behalf that there had been three broadcasts in which the Minister had commented on Mr Zaburoni’s case, and there is some support for that view in the first Hadley interview on 21 April 2016. However, as there is no evidence of the content of any earlier interview, it can have no relevance in these proceedings.

51    The Court was provided with an audio recording of the interviews on 21 April 2016 and 9 June 2016 as well as purported transcriptions of those interviews. Having regard to both the audio recordings and the suggested transcriptions, I have set out below relevant parts of the two interviews. The transcriptions were set out in neat paragraphs and did not indicate pauses by the Minister in his answers. In my view, the format of the transcriptions suggested a greater degree of deliberation in the Minister’s answers than was conveyed in the audio recordings of them. For that reason, and without intending any disrespect to the Minister, those pauses are reflected in the material set out below and the formatting is different from the transcriptions provided.

52    Underlined passages are specific phrases relied on by Mr Zaburoni.

First Hadley interview

53    The interview on 21 April 2016 occurred shortly after the High Court allowed Mr Zaburoni’s appeal but before the Queensland District Court made its sentencing decision.

54    In the course of the interview, the Minister discussed the gaoling of a person convicted of people smuggling, the stopping of a boat by the Sri Lankan navy and Australia’s arrangements with Sri Lanka concerning that activity, the deportation of a non-citizen who had been convicted of the manslaughter of a police officer, an Irish national who had been convicted of assault and domestic politics (particularly in Queensland). Following the discussion concerning the man convicted of manslaughter of the police officer, Mr Dutton said:

Mr Dutton:    Well, Ray, (ah) firstly, it’s (ah) it’s a good thing (ah) that (ah) these people have gone. Our community is a safer place for not having these criminals (ah) walking around amongst us. So the work we’re doing, (ah) and we’ve spoken about it a lot over the course of the last 12 months, a lot of work we’re doing in cancelling visas of people who are here as non-citizens, they commit crimes and our numbers are up by hundreds of percent over the last 12 months. (ah) I’m really proud that we’ve been able to (ah) kick out some pretty serious criminals, who I think would have reoffended.

Now, the difficulty, of course, is (ah) that we’ve got a generous legal system, there’s lots of (ah) pro bono work around, lawyers that (ah) do work for free in this area and the Commonwealth spends millions of dollars each year. In fact I think I’m the most litigated person in the Commonwealth, (ah) the Minister for Immigration gets sued all the time, (ah) we get injuncted and we fight these cases. (ah) In the end, (ah) in many of them we’re successful and that’s been the case in relation to this matter. (ah) This person has gone back and good riddance really, I think we’re a better place without them.

55    Later in the interview, following discussion of issues concerning the Irish national who could not be located, the following interchange occurred:

Mr Dutton:     Well Ray, (ah) it’s hard again to talk about individual cases until they’re finalised, but (ah) many people will come on a tourist visa, (ah) some may come on a working visa, they may come on a partner visa. (ah) So we obviously have millions of people moving across our borders each year and we scrutinise (ah) applications as best we can (ah) within the law. We do a lot of work with intelligence and law enforcement agencies, (ah) but some people come across our borders (ah) who are intent on doing the wrong thing and (ah) in these cases (ah) we work with the police authorities to try and track (ah) individuals down and there are different ways in which we can try and locate people and (ah) if it’s (ah) possible, and very quickly, cancel their visas and deport them.

So it will depend on the individual (ah) circumstances, to what visa they came on but (um) we have pretty significant powers under the Migration Act to cancel visas of people that have committed crimes or that have done the wrong thing by Australians.

Mr Hadley:    Now, in relation to this bloke, one would imagine he probably got some sort of work visa or holiday visa. Once he’s caught, served the 12 months, it would almost be a fait accompli, you’d just pack him off, wouldn’t you?

Mr Dutton:    If there’s a 12 month (ah) sentence, then it’ll be an automatic (ah) revocation of his visa because he fails the character test. If he’s (ah) involved in a (ah) motorcycle gang, (ah) if he’s a child sex offender, there are a number of ways (ah) in which and, you know, we’ve cancelled over I think almost about eleven hundred in the last 12 months from memory - so a pretty significant number and again I want to ramp that number up over the next year.

(um) And I think this has been one of the really significant achievements (ah) of this government; we’ve been able to make our society a safer place and that’s what getting control of our borders is about. (ah) We want to welcome people that want to come here, spend money, do business, (ah) we want to welcome them in record numbers, but (ah) we want to at the same time cancel visas of people that aren’t going to do the right thing.

56    The final interchange related to Mr Zaburoni’s case as follows:

Mr Hadley: Okay, just one final one; this circus acrobat that we have spoken about previously, Godfrey Zaburoni. The High Court upheld the appeal, which I can’t understand, that he didn’t deliberately or intentionally infect his former partner with HIV despite the fact that he had unprotected sex with her and she didn’t know he was HIV positive. He is now going to be resentenced. He has already been in for three years and it is obvious that, come I think Friday or early next week, he will be released. He got an Australian visa 16 years ago. What do you do with him? Can he be sent back to Zimbabwe from whence he came?

Mr Dutton: Well I don’t, again, I don’t want to prejudice a case, but this guy (ah) on what I, on what I’ve seen publicly is just a grub from start to finish. And (ah) I think we need to have a very close look (ah) at this case with the police. We will wait and see what happens with sentencing and all of the rest of it. But people, again, without commenting on an individual case, if you look at (ah) these sort of facts in a case it (ah) it makes it pretty compelling for us to cancel visas but I want to have a look at it (ah, um) in detail because (ah) we’ll see what options are there and again, (um) we don’t want people of bad character here. We want to welcome with open arms good people who visit our country, (ah) but we are going to continue to clampdown very hard on criminals and people who really do a great deal of harm to people in the Australian society.

Mr Hadley: I don’t expect you to put yourself at odds with the High Court and nor would I. BUT I would simply repeat what I said before. When they upheld his appeal, finding he didn’t intentionally infect his former partner with HIV, given he knew that he had HIV, didn’t tell her he had HIV, had unprotected sex with her, I don’t know where intentional doesn’t form part of what the High Court should be all about. I was just stunned by the decision, I can’t believe the decision.

Mr Dutton: Yeah, look mate, I, I think (ah) people will make their own judgements when they look at (ah) these cases and no doubt they can provide their feedback (ah) to wherever it might be; the courts or wherever else (ah) but (ah) you and I get into trouble all the time for talking about court cases, where we’re completely (ah) at odds with, (um) you know, just, just disbelieving of outcomes. But (um) look I (ah) I think (ah) this case is obviously still before the courts, so let’s hope, (ah) let’s hope it’s a sensible outcome.

Second Hadley interview

57    On 9 June 2016, the Minister again participated in a radio interview with Mr Hadley. During the interview, the Minister discussed matters relevant to his portfolio among other things.

58    Mr Hadley mentioned what he understood to be the facts concerning a non-citizen. The non-citizen was said to have stalked his wife when she left him after 25 years of marriage having discovered that he had sexually abused their children over a long period. The man was convicted of child sex offences resulting in him being gaoled in 2007 for a minimum of nine years. The man was about to be released from prison. Mr Hadley asked the Minister where his office was up to with “this creature”.

59    The conversation proceeded:

Mr Dutton:    Yeah well Ray, you’ll remember (um) over a number of (ah) interviews we’ve discussed (ah) the changes that we’ve made to the legislation which makes it easier for (ah) the Minister of the day to cancel visas (ah) on a character basis. So if people fail [the] character test we can cancel their visas and send them back to their country of origin. Now, this person will be automatically cancelled under the character provisions, (ah) will be taken into immigration detention and then deported.

Obviously there’s a review process that they can go through and appeal and (ah) whatever legal opportunities are open to them, but, (ah) there’s an automatic cancellation for people that have been convicted of child sex offences and (ah) indeed over (ah) the period that (ah) that I’ve been Minister I think we’ve (ah) cancelled (ah) the visas of almost 60 people that’ve been charged with rape and sexual offences (ah) and (ah) and we’re looking through lots of cases, working with the police, (ah) to cancel more because we, we will save future victims and we will prevent crime from happening by deporting these people. They’re here as guests of our country, they’re non-citizens and if they commit these sorts of heinous crimes they can expect to have their visas cancelled and to be deported.

Mr Hadley:    Now the other one I’ve spoken about is a Gold Coast circus performer found guilty of intentionally infecting his girlfriend with HIV, 37-year-old Godfrey Zaburoni, diagnosed with HIV in 1998 when he was performing with a touring circus in Adelaide. He was then sentenced to nine years in gaol in 2013, but, inexplicably, the High Court overturned that decision back in April saying he didn’t intentionally infect the girl despite the fact she didn’t know he was HIV positive. Last week he was re-sentenced to five years imprisonment for the lesser charge then released immediately because he’d been in gaol for three years and two months. I know you’ve been looking at whether Zaburoni will face deportation back to his native Zimbabwe, have you made a decision on him?

Mr Dutton:    (ah) Ray, I haven’t (ah) as yet because (ah) the Department obviously is going through the process at the moment and it (ah) imagine there’s a (ah) there’s a lot of (ah, ah) legal questions that need to be answered and the process is that a (ah) a notice would be served and then there’s an appeal period and (ah) I’m a decision maker in relation to that particular case so I don’t want to publicly comment on it, but (um) suffice to say (ah) I’ve followed the case very carefully, very closely, and (ah) I have a (ah) a very low tolerance (ah) frankly for people who are (ah) committing serious sexual offences against women, against children, against anyone and I think we’ve demonstrated (ah) over the last 12 months that we have been (ah) tough, within the law, to cancel visas (ah) wherever possible and deport people at record numbers and I’m waiting on this matter to come up (ah) to make (ah) to make a determination, but

Mr Hadley:    Okay.

Mr Dutton:    (ah) I’ll be able to report back to you at some time soon.

Jia Legeng

60    In Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; HCA 17 the High Court accepted that if apprehended bias is made out a Minister is subject to a writ under s 75(v) of the Constitution, a jurisdiction given to this Court under s 476A(2) of the Migration Act. In this regard, Mr Zaburoni relied on the remarks of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; HCA 27 at 189; quoted in Jia Legeng at [62]:

It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ... The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed.

61    The context of Jia Legeng is that Mr Jia had been convicted of rape and sentenced to six years and three months imprisonment. A Deputy President of the Administrative Appeals Tribunal found Mr Jia to be of good character in light of his assessment of what he regarded as mitigating circumstances having regard to the conduct of the woman Mr Jia was convicted of raping. In Jia Legeng at [17]-[18], Gleeson CJ and Gummow J set out the content of two broadcasts in which the then Minister participated:

17    On 14 April 1997, the Minister was interviewed on radio. The interviewer expressed concern about the decision of the Tribunal. The Minister said he was unhappy with the way in which the Tribunal had been dealing with a number of immigration matters, and that he had asked the Joint Committee on Migration of the Parliament to look into the question of criminal deportation. He discussed the legislative provisions relating to character. The interviewer asked what the law provided as to whether a person was of good character. The Minister said:

“What we are looking at here is the commission of offences. I don't believe you are of good character if you've committed significant criminal offences involving penal servitude. The law does actually write down that that is the test and it adds another test … if you are known to associate with organisations that are involved in criminal activity, you can be found to be of not good character.”

18    When asked, in effect, what he could do about it, the Minister said:

“I'm considering what steps I can take and there are some avenues. One of the suggestions that’s been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow and I also have to look at the issue as to what the potential cost might be to the community if it opens up a whole host of other possible appeals to the Federal Court.”

The Minister also wrote to the President of the Tribunal. The letter included a paragraph set out in Jia Legeng at [25]:

“The seriousness of the crime, which is an important consideration, does not appear to have been given sufficient weight in the Tribunal's deliberations. Where the courts have determined that a substantial period of imprisonment was appropriate for the crime committed, the seriousness of the crime is a primary consideration. Crimes involving violence and drugs are regarded as particularly abhorrent and are viewed as significant in the consideration under the character and deportation provisions of the Act.”

62    The Minister does not dispute that this Court has the power to review the Minister’s decision to cancel Mr Zaburoni’s visa under s 501(2) on the ground of apprehended bias. However, he says that, having regard to the High Court’s reasoning in Jia Legeng, the legal standard for establishing apprehended bias in the context of statements by a Minister has not been met in this case and that is a complete answer to the third ground of Mr Zaburoni’s application. Mr Zaburoni says that his case is distinguishable from Jia Legeng and applying anything from Jia Legeng must be done with great care, except at a general level. In my view, factual comparison of the circumstances considered in Jia Legeng and those in this case are generally unproductive, although for completeness I have addressed some of the issues raised by Mr Zaburoni in consideration of his submissions below.

What is the test for apprehended bias?

63    At issue between the parties is the standard of impartiality required of the Minister.

64    Mr Zaburoni submitted that the test for apprehended bias is that set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; HCA 63 at [7]-[8] and [33] as explained by the High Court in Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982; HCA 28 at [28] in relation to administrative decisions made in private. He acknowledged that there may be a difference of application of the test of apprehended bias where the decision in question is one made by a Minister: see the comments Gleeson CJ and Gummow J in Jia Legeng at [63] and [101]-[105]. Although Kirby J was in dissent (finding that imputed bias was made out on the facts), Mr Zaburoni relied on his Honour’s comment in Jia Legeng at [137] (footnotes omitted):

Political office-holders are not immune: It is quite wrong to suggest that, because the decision-maker is a Minister, necessarily a politician and an elected official, he or she is exempt from the requirements of natural justice, or enjoys an immunity from disqualification for imputed bias. A moment's reflection on basic principle shows why this is so. Ministers are sometimes the repositories of statutory powers conferred upon them by the Parliament. Relevantly to the cases of Mr Jia and Mr White, those are the powers conferred by ss 501 and 502 of the Act. In respect of those provisions, a Minister must exercise the power "personally". He or she cannot delegate them to an official of the Department. The Minister must report the exercise to the Parliament. However, this does not mean that a Minister is at liberty to give vent to personal biases, idiosyncratic opinions, prejudice against a particular applicant or blanket rules, applied without regard to any specific features of the case in hand. Nor is a Minister at liberty to apply blindly his own, a departmental, a Party or even a Government policy which is inconsistent with the assumptions of individual justice and administrative decision-making that are inherent in the grant of power by the Parliament.

65    The seminal test in apprehended bias cases is whether there is a possibility (and not a probability) that a fair-minded lay observer might apprehend that a decision-maker might not bring an impartial mind to the question to be determined: Ebner at [6] and [33]. Ebner dealt with decision-making by a judge, where the highest requirement of impartiality is imposed. The application of the principles relating to procedural fairness and apprehended bias in connection with decision-makers outside the judicial system must recognise and accommodate the differences between court proceedings and other kinds of decision-making: Ebner at [4]; Jia Legeng at [99].

66    In Isbester v Knox City Council (2015) 255 CLR 135; HCA 20 at [22], Kiefel, Bell, Keane and Nettle JJ observed that the analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different. With specific reference to Jia Legeng, their Honours went on to say at [23]-[24] (footnotes omitted):

23    How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

24    The two cases referred to in the courts below, Jia Legeng and McGovern, furnish examples of how the above-mentioned factors assume relevance to the question of what a fair-minded observer may reasonably expect as to the level, or standard, of impartiality which should be brought to decision-making by certain non-judicial decision-makers. Whether those factors assume particular relevance to a case such as the present … is another question.

67    In Jia Legeng at [72], Gleeson CJ and Gummow J said that the state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Albeit that their Honours were there addressing actual bias, contrary to Mr Zaburoni’s submissions, I accept that it is an appropriate basis for formulating a test for apprehended bias in a matter where the possibility of prejudgement is in issue: see Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 (Kenny, Tracey and Middleton JJ) at [24]-[25].

68    Relevantly to this matter, in Isbester v Knox City Council at [25], Kiefel, Bell, Keane and Nettle JJ discussed the decision in Jia Legeng without qualification. They said (footnotes omitted):

25    In Jia Legeng, the context for the Minister’s decision was a statute providing a particular power in the exercise of which it was necessary to consider the national interest. The decision had a political quality and rendered the Minister subject to a particular kind of accountability unlike that to which a judge would be subjected. It was observed that a person in the position of the Minister may not be as constrained in the wide range of factors to be taken into account and in receiving opinions from a number of sources. It would be artificial, in a decision-making process of this kind, to require the Minister to exercise his power so as to avoid acting in a way that would, in the case of a judge, create the appearance of bias. The same level of evident neutrality as applies to a judge could not be required of a person in the Minister’s position

69    In Jia Legeng at [105], in the context of their consideration of claimed apprehended bias, Gleeson CJ and Gummow J found that while the Minister was obliged to give genuine consideration to the issues raised by ss 501 and 502 and bring a mind open to persuasion to the task, the Minister was not additionally required to avoid conducting himself in such a way as would expose a judge to a charge of apprehended bias.

70    A statement by a Minister as to how he or she proposes to administer an Act in certain classes of case will not give rise to an apprehension of bias so long as the statement reveals no error of law. If the nature of a statutory task is that the Minister must reach a degree of satisfaction that a value-laden standard is met, it is not necessary that the Minister undertake that task “wholly anew” each time he or she comes to exercise the discretionary power. Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, the area within which questions of actual or apprehended bias by prejudgement may arise is reduced accordingly: see Jia Legeng at [188]-[192] per Hayne J, with whom Gleeson CJ and Gummow J agreed at [100].

71    Simply asserting an apprehension of bias is not enough. In Ebner at [8], the High Court said that there are two necessary analytical steps which must be made out to establish that an apprehension of bias exists. First, identify the matter which might lead the decision-maker to decide a case other than on its merits. Second, articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. In Isbester v Knox City Council at [59] Gageler J recognised a third necessary step: consider the reasonableness of the apprehension of the feared deviation being caused by the matter identified in the first step.

72    Having regard to all of these matters, in my view the test for apprehended bias to be applied in this case is whether a fair-minded lay observer, informed of the discretion the Minister is called upon to exercise personally under s 501(2) of the Migration Act, might form the view (based on what the Minister said in the context of the two interviews broadcast on radio and the time in the decision-making process at which he said it) that the Minister might be so committed to a conclusion as to the exercise of his discretion in Mr Zaburoni’s case that his mind would not be open to persuasion by evidence and arguments submitted by or on behalf of Mr Zaburoni.

73    It is not helpful to look to the Reasons in inquiring whether there is apprehended bias because the issue is not whether the Minister was actually biased and the relevant test is an objective one of real and not remote possibility (rather than probability): see Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; HCA 48 at [67]-[68].

Consideration of Mr Zaburoni’s submissions

Different form of s 501

74    Mr Zaburoni submitted that the fact that the provisions considered in Jia Legeng are different from those governing the Minister’s decision under s 501(2) in this case is a distinguishing feature, especially because in Jia Legeng the Minister was specifically required to take into account the national interest. He also says that Jia Legeng is primarily a case dealing with actual bias and the discussion concerning apprehended bias is in general terms. Those submissions must be rejected. Jia Legeng remains binding authority in relation to the legal standard to be applied to a claim of apprehended bias regarding statements made by the Minister despite the differences in the provisions considered in Jia Legeng, as was affirmed by a Full Court of this Court in Fraser v Minister for Immigration and Border Protection (2015) 145 ALD 337; FCAFC 48 at [29]-[32] at a time when ss 501(2), 501(6)(a) and 501(7)(c) were in relevantly the same form as those under consideration in this case. The Full Court relied on statements regarding apprehended bias in Jia Legeng by Hayne J at [188]-[192], Gleeson CJ and Gummow J at [98]-[105] and Callinan J at [284].

Different Minister and different offence

75    Mr Zaburoni also submits that his case is distinguishable from Jia Legeng because there was a different Minister in 1997 from 2016. Mr Zaburoni says that the criminal offence of which Mr Jia was convicted was different from Mr Zaburoni’s grievous bodily harm conviction because Mr Jia’s offence involved “intention”, which was not established in Mr Zaburoni’s case.

76    I do not accept that either of these factual differences are distinctions of any relevance. Mr Zaburoni has not suggested how the fact that the Ministers are different people has any relevance. As to the difference in the offences committed by Mr Jia and Mr Zaburoni, Mr Zaburoni concedes that he did not pass the “character test” in s 501(2)(a) because he was sentenced to five years’ imprisonment following a conviction for unlawfully doing grievous bodily harm and therefore had a “substantial criminal record” within the meaning of s 501(6)(a), by reason of s 501(7)(c). Whether or not the infliction of harm was intentional is a factor which it was open to the Minister to take into account in determining whether he was satisfied that Mr Zaburoni passed the character test for the purposes of s 501(2)(b). However, the Minister was not required to take this factor into account, and any weight to be attributed to this factor was wholly within his area of decisional freedom; this submission invites impermissible merit review.

Nature, timing and venue of the Minister’s comments

77    Mr Zaburoni says that the comments in the radio broadcasts in his case have a different quality from those in Jia Legeng because in Jia Legeng, the Minister’s comments concerned good character – a matter preliminary to the exercise of the discretion. The Minister’s comments were more general and acknowledged the need to “weigh up” certain matters. The references in the broadcasts and in the Minister’s letter in Jia Legeng to the “seriousness of the crime”, “an important consideration”, “a primary consideration” and “sufficient weight” all imply judgement and evaluation, not conclusion.

78    Mr Zaburoni says that in his case, the Minister’s comments were personal to him. They were strong, prejudicial and pejorative. They foreshadowed an outcome because they expressed a firmly held view that the appropriate outcome was for Mr Zaburoni’s visa to be cancelled. This went to the actual exercise of his discretion. He says that such remarks fall within the ambit of apprehended bias and satisfy the requirement of a logical connection between the matter and the feared deviation from the course of deciding the case on its merits as described by Hayne J in Jia Legeng at [183]-[184]. Mr Zaburoni submits that the Minister’s expressed views reveal a wrong and blinkered view of the meaning, scope and purpose of the discretion in s 501.

79    Mr Zaburoni says that it is significant that the broadcasts occurred before the Minister notified Mr Zaburoni of his intention to cancel his visa and before he received Mr Zaburoni’s submissions in July and August 2016 relevant to the exercise of the Minister’s discretion under s 501(2). Relying on Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87; FCA 768 per French J at 106-7 and the remarks of Kirby J generally in Jia Legeng, he says that the forum in which the remarks were made (a radio broadcast with broad reach) is also relevant because political consequences could flow if the Minister resiled from his publicly identified position.

80    I will consider first the remarks made by the Minister on 21 April 2016: see [56] above. While Mr Zaburoni noted the general context of the Minister’s remarks, his complaint focusses on the passage in which the Minister describes Mr Zaburoni as a “grub from start to finish”. Mr Zaburoni also relies on the underlined material in the Minister’s remark that “But people, again, without commenting on an individual case, if you look at (ah) these sort of facts in a case it (ah) it makes it pretty compelling for us to cancel visas but I want to have a look at it (ah, um) in detail because (ah) we’ll see what options are there and again, (um) we don’t want people of bad character here”.

81    There is no doubt that the Minister’s comment that “this guy, on what … I’ve seen publicly, is a grub from start to finish” is highly disapproving of Mr Zaburoni. Further, the Minister’s public acknowledgement that those factual circumstances “makes it pretty compelling for us to cancel visas” and “we don’t want people of people of bad character here” give cause for a relevantly informed reasonable lay observer to conclude that Mr Zaburoni’s task to persuade the Minister to exercise his discretion in Mr Zaburoni’s favour was likely to be difficult. However, I do not accept that the Minister’s remarks indicate a misunderstanding of his task under s 501(2) or a mind closed to persuasion.

82    First, the Minister’s colloquial expression of distaste, based on publicly available information, is hardly surprising given the publicly known factual circumstances of the case. I do not accept Mr Robinson SC’s submission that “grub from start to finish” conveyed that the Minister had a view of Mr Zaburoni’s character which could not be changed. Rather, I take it to be disapprobation of the conduct for which Mr Zaburoni was convicted for which he was still yet to be sentenced (that is the case the Minister did not want to prejudice). While the remark is strong, the Minister is not required to demonstrate the impartiality required of a judge.

83    Second, as noted by Mr Zaburoni, the Minister’s remarks were made before notice of intention to cancel Mr Zaburoni’s visa had been given and well before the Minister had been given any submissions by Mr Zaburoni. The Minister’s comments reveal his appreciation that he currently has only the publicly available information. It is not entirely clear why the Minister would need to look at this case with the police, but it does indicate his appreciation that he may not have all of the facts and that further information might be relevant to any decision he had to make. This is an indication that the Minister’s mind was not closed in relation to the ultimate decision he might be called upon to make under s 501(2).

84    Third, it is true that the sentence commencing “But people, again, without commenting on an individual case ...” is not a model of clarity of expression. It appears to be designed as a statement of principle even though it mentions the need to consider Mr Zaburoni’s case in detail and consider options. It is an unscripted remark which reflects the difficult (and often unwise) position decision-makers place themselves in when they choose to speak publicly on a matter which may ultimately fall to them to decide in the context of an interview of the kind conducted by Mr Hadley.

85    Having said that, the remark that “we don’t want people of bad character here” is an expression of general policy which is consistent with the object of the Migration Act as set out in s 4(1) and s 501 itself, even though it follows on from the Minister’s acknowledgement that Mr Zaburoni’s case will need to be looked at in detail and options considered. As the Minister responsible for the administration of that Act, the formulation and expression of that policy position “does not invoke … notions of prejudgment or bias [or] … of fettering discretion”: see Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231; HCA 3 at [18]-[20].

86    In my view the sentence as a whole would indicate to the relevantly informed reasonable lay observer that the Minister understands that he would have to consider in detail the circumstances surrounding an individual case when he makes a decision under s 501(2) and, albeit that he starts from a position that “these sort of facts in a case it … makes it pretty compelling for us to cancel visas”, it is not indicative of a mind closed to persuasion. As the Minister submitted, the Minister was entitled to make public comments about a matter in respect of which he may consider exercising his powers without giving rise to an apprehension of bias: see Jia Legeng at [102] per Gleeson CJ and Gummow J.

87    I will now turn to the remarks made by the Minister on 9 June 2016. Again, Mr Zaburoni’s submissions focussed on a single passage which followed from Mr Hadley’s question as to whether the Minister had yet made a decision concerning Mr Zaburoni’s case: see [59] above. For reasons which appear below, that single focus is inappropriate and the remarks relied on by Mr Zaburoni should be considered in the context of the whole discussion.

88    Mr Zaburoni says that in the 9 June 2016 interview, the Minister expressed the desire to “cancel visas wherever possible and deport people in record numbers”, the “people” being people in Mr Zaburoni’s circumstances. He says that this remark, above all, establishes the bias the Minister had when he considered Mr Zaburoni’s situation and made the deportation decision. He submitted that to exercise the discretion under s 501 “wherever possible” in favour of deportation (whether or not within the law) does not constitute lawful exercise of the discretion because it starts from a “leaning position” and that is the wrong approach. Further, the Minister said that he had “followed the case very carefully, very closely, and I have a very low tolerance frankly for people who are committing serious sexual offences against women, against children, against anyone”. This remark is inaccurate in that it suggests that Mr Zaburoni committed offences numerous times (which he had not) and that he had committed offences against children (which he had not). Mr Zaburoni says that the remark publicly establishes the Minister’s disgust towards him. Further, the Minister described the process in relation to Mr Zabruoni personally as “a notice would be served and then there’s an appeal period” but that can only occur where the Minister chooses to exercise his discretion adversely to an applicant so that the remark pointedly assumes that there will be an adverse decision made by the Minister in relation to Mr Zaburoni.

89    It is troubling that the Minister said that “I have a very low tolerance frankly for people who are committing serious sexual offences against women, against children, against anyone” immediately after the Minister said that he had “followed the case very carefully, very closely”. As submitted by Mr Zaburoni, there is no truth to the suggestion that he was guilty of any offence against children and he was convicted of one offence, that of causing grievous bodily harm, which is not a sexual offence. These facts do not minimise (as the submissions apparently sought to do) the circumstance that the offence for which Mr Zaburoni was convicted occurred in the context of a sexual relationship over an extended period in which Mr Zaburoni had lied as to his HIV status.

90    In my view the words spoken after “I have followed the case very carefully, very closely” are a summing up of the context of the whole 9 June 2016 interview in which there had been both a specific and general discussion of the deportation of persons convicted of serious offences of a sexual nature, including against children (see [58] and the paragraphs at [59] preceding the discussion of Mr Zaburoni’s case). The submission that the words complained of disclose an impermissible “leaning” position must be rejected having regard to the reasoning in Jia Legeng at [72], [102] and [188]. It is open to the Minister to have and state the view that the protection of the Australian society requires deportation of non-citizens who do not pass the character test in relation to serious offences wherever possible “within the law” and to make that remark in the context in which the Minister made it. A decision to cancel a visa is only “within the law” where the Minister exercises his discretion lawfully.

91    The fact that these remarks were made eight days before the notice of intention to cancel the visa was issued does not give rise to a reasonable apprehension that the Minister might not exercise his discretion lawfully, even though they may have foreshadowed a likelihood that a notice of intention to cancel the visa might be issued. Contrary to Mr Zaburoni’s submission, the fact that the remarks occurred before his submissions and evidence were sought or received weighs against a reasonable apprehension of bias by an appropriately informed reasonable lay observer in a context where the Minister acknowledged that he was waiting for the matter to come to him for determination following a process to be gone through by the Department. It is true that in that discourse the Minister misdescribed as an “appeal period” the opportunity to provide submissions and evidence following a notice of intention to cancel a visa. However, I do not consider that to be indicative of either a misunderstanding of the task under s 501(2) or a mind closed to the task he had to perform under that provision when those submissions and evidence were received.

92    There is some force to the submission that the venue in which the Minister made the remarks gives rise to a concern that the Minister might feel constrained in the manner in which he might make a decision under s 501(2). It is certainly the case that the Minister’s remarks might lead a reasonable lay observer to conclude that it might be difficult for Mr Zaburoni to persuade the Minister that his visa should not be cancelled and that the Minister may be exposed to public criticism having made those remarks in such a public venue if he decided not to cancel the visa. However, I am not satisfied that this or the other factors submitted by Mr Zaburoni are sufficient to conclude that the Minister either misconceived his task under s 501(2) or that his mind was closed to any evidence or submissions that Mr Zaburoni might submit in response to the notice of intention to cancel his visa.

93    I find that this ground is not made out having regard to relevant authority.

Conclusion

94    As I have found that none of the grounds of the application for review has been made out, I will dismiss the application and order that Mr Zaburoni pay the Minister’s costs as agreed or taxed. Should the Minister wish to seek a lump sum award of costs, I will allow a period of 14 days in which to do so. If the Minister elects to make that application, I will make timetabling orders for its determination.

Associate:

Dated:    13 June 2017