FEDERAL COURT OF AUSTRALIA

Burgess v Minister for Immigration and Border Protection [2018] FCA 69

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue to the respondent quashing the decision made on 16 September 2016 to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth).

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant, Mr Burgess, was issued a Class BF Subclass 155 Resident Return Visa under the Migration Act 1958 (Cth). On 16 September 2016, the Minister for Immigration and Border Protection cancelled the visa on character grounds in the exercise of a power conferred under s 501(3)(b) of the Act. This is an application for judicial review of that decision. Subject to what follows, it will be referred to as the September decision.

2    Earlier on 16 September 2016, this Court made orders by consent in action SAD 178/2016 (earlier proceedings) quashing a purported decision of the Minister to cancel the same visa under s 501(3)(b) of the Act. The earlier decision was made on 3 June 2016. I will refer to it as the June decision.

3    A period of about 20 minutes passed between the quashing by this Court of the June decision and the making of the September decision forming the subject of this action.

4    This Court’s jurisdiction to review the September decision is that conferred by s 476A(1)(c) of the Act. To succeed on the application, it is necessary for Mr Burgess to show that the decision is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; s 474 of the Act.

5    At the time of each decision, s 501 of the Act relevantly provided:

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.

…

(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) ...

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

…

(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

...

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

…

6    Before turning to the grounds of review it is convenient to set out some of the background to the Minister’s decisions and to briefly summarise the reasons given for each of them.

THE JUNE DECISION

7    Prior to making the June decision, the Minister received a submission relating to the proposed cancellation. An Issues Paper and a proposed Statement of Reasons were attached to the submission. The Issues Paper had attached to it a series of annexures, including one marked “Attachment Z”. It contained information provided to the Minister by a gazetted agency within the meaning of s 503A(9) of the Act, being information communicated to officers of the Department of Immigration and Border Protection on the condition that it remain confidential. In accordance with the requirements of the Act, the information contained in Attachment Z was not disclosed to Mr Burgess.

8    There is no statutory obligation to provide written reasons in respect of a decision to cancel a visa under s 501(3) of the Act. The Minister nonetheless adopted the Statement of Reasons for the June decision that had been pre-prepared for him, and those reasons were provided to Mr Burgess. They may be broadly summarised as follows:

(1)    the Minister reasonably suspected that Mr Burgess did not pass the character test as defined in both:

(a)    s 501(6)(a) of the Act (by virtue of his “substantial criminal record” as defined in s 501(7)(c)); and

(b)    s 501(6)(b) of the Act (by virtue of his suspected membership of an outlaw motorcycle gang (OMCG));

(2)    the Minister determined that Mr Burgess had a substantial criminal record because he had been convicted in the District Court of South Australia for robbery and assault offences for which he had been sentenced to 15 months imprisonment;

(3)    the Minister took into account the information contained in Attachment Z, both for the purpose of considering the application of the character test in s 501(6)(b), and for the purpose of determining whether cancellation of the visa was in the national interest (see s 501(3)(d));

(4)    the Minister concluded that it was in the national interest to cancel Mr Burgess’ visa, both because of his suspected involvement in an OMCG, and because of his history of prior offending, which included a series of offences in addition to those relied upon to determine whether Mr Burgess passed the character test.

9    In respect of Mr Burgess’ suspected involvement in an OMCG, the Minister stated:

16.    In considering the national interest, I also considered the Australian Government’s National Security Strategy and the Commonwealth Organised Crime Strategic Framework Overview which recognise that organised crime is an issue of national security and that preventing, detecting and disrupting organised crime is a commitment of the Australian Government in the interests of protecting the Australian community, I also noted the view of the Australian Crime Commission that OMCGs remain one of the most high profile manifestations of organised crime.

17.    I also had regard to the establishment of a national taskforce named Operation Morpheus by the Australian Crime Commission’s Serious and Organised Crime Coordination Committee and how the purpose of Operation Morpheus is to disrupt, disable and dismantle the criminal activities of Australia’s highest risk OMCGs and their members.

18.    In considering the national interest in this case I also took into account information that is protected under section 503A of the Migration Act.

19.    I concluded that the cancellation of Mr BURGESS’ 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 insofar as excluding such persons from the Australian community will contribute to national law enforcement efforts to combat organised crime including through disrupting and disabling groups that are involved in criminal conduct.

20.    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 BURGESS’ Class BF Subclass 155 Resident Return visa, without prior notice, is in the national interest.

10    Although not expressly stated, it is implicit in the June decision that the same factors bearing on the existence of the power to cancel the visa were taken into account in the exercise of the Minister’s residual discretion as to whether or not to exercise the power.

11    As has been mentioned, on 16 September 2016 this Court made an order by consent quashing the June decision. The reasons for quashing the decision are recorded in a note to the order, prepared with the concurrence of the parties. The note is to the effect that the Minister took into account an error in Mr Burgess’ criminal record, which had wrongly recorded that Mr Burgess had committed an aggravated assault against the police. The Minister appropriately conceded that the error was jurisdictional: see Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at [4] – [8], [32] – [33] (Black CJ) and at [50] – [52] and [61] – [64] (Sackville J).

THE SEPTEMBER DECISION

12    Prior to making the September decision, the Minister received a submission to which there was attached an Issues Paper and draft Statement of Reasons. The Issues Paper in turn had attached to it a series of documents marked “Attachment A” through to “Attachment Q”. I will refer to all of these materials collectively as the September Materials.

13    The September Materials do not include any information protected from disclosure under s 503A of the Act. More specifically, at the time of making the September decision, the Minister did not have before him the Attachment Z information to which he had referred in his reasons for making the June decision.

14    The Minister adopted the suggested Statement of Reasons for decision without alteration and those reasons were provided to Mr Burgess. The reasons contain the following statements concerning the cancellation power:

3.    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. Under 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.

4.    However, because Mr BURGESS has been sentenced to two or more terms of imprisonment where the total term is 12 months or more, he has a substantial criminal record as provided by section 501(7)(d) and objectively fails the character test under paragraph 501(6)(a). I am aware therefore, that any revocation request Mr BURGESS makes could not succeed as he is unable to satisfy me that he passes the character test.

5.    I noted that I could have elected to consider Mr BURGESS’ visa cancellation under section 501(2) which would have provided natural justice to Mr BURGESS. However, I chose to proceed under section 501(3).

6.    I am cognizant that because any request by Mr BURGESS for revocation under section 501C(4) would be futile, the revocation process cannot ameliorate the lack of natural justice in a decision under section 501(3). Also, because the power to revoke a section 501(3) decision under section 501C(4) is only enlivened if the person satisfies me that they pass the character test, I am aware that Mr BURGESS will not, at any stage, be given an opportunity to be heard on the exercise of my residual discretion as to whether to cancel his visa.

…

Legal implications of making a decision under section 501 (3)

47.    I am aware that a consequence of proceeding under section 501(3) without affording natural justice is that at no stage in the cancellation and revocation process will Mr BURGESS have an opportunity to make representations or submissions on the exercise of my discretion whether to cancel his visa. This is because my power to revoke a decision made under section 501(3) is enlivened only if the person makes representations in accordance with an invitation under section 501C(3) and satisfies me that they pass the character test, with the result that such representations can bear only on the question whether the person passes the character test.

48.    I am also cognizant that in Mr BURGESS’ case, it will be futile for him to seek revocation under section 501C(4) because, due to his substantial criminal record, he cannot satisfy me that he passes the character test.

15    The reasons state that the Minister reasonably suspected that Mr Burgess did not pass the character test as defined in s 501(6)(a) because he had a substantial criminal record as defined in s 501(7)(d). In that regard, the Minister determined (and it is not disputed) that Mr Burgess had been sentenced to two or more terms of imprisonment together totalling 12 months or more, in respect of the following offences:

    Refuse name and address and Disorderly Behaviour Resist Police — Imprisonment for one (1) month suspended on entering a bond of $10, to be of good behaviour 12 months;

    Drive Dangerously to Escape Police Pursuit — Imprisonment for three (3) months suspended on entering a bond of $300, to be of good behaviour two (2) years. Licence disqualified for two (2) years;

    Drive under Disqualification or Suspension — Imprisonment for two (2) months suspended on entering a bond of $300, to be of good behaviour two (2) years; and

    Conspiracy — Imprisonment for six (6) months.

16    The Minister concluded that cancellation of Mr Burgess’ visa was in the national interest by reason of Mr Burgess’ history of offending, which included offending more extensive than the four offences listed above.

17    The reasons do not contain any statement to the effect that Mr Burgess was reasonably suspected of involvement in an OMCG.

Procedural and substantive decisions

18    It is Mr Burgess’ case that there were in fact two decisions made on 16 September 2016, namely:

(1)    the procedural choice to consider making a substantive decision to cancel the visa under s 501(3) rather than s 501(2) (which resulted in Mr Burgess having no entitlement to be afforded procedural fairness); and

(2)    a substantive decision to cancel the visa under s 501(3).

19    The grounds of review on the present application impugn both of these decisions. They will generally be considered together, except where separate consideration of either of them is warranted. Where reference to a single decision is made, it should be understood as a reference to the substantive cancellation decision.

BIAS

20    The first and third grounds for judicial review allege actual and apprehended bias respectively. They are expressed as follows:

1.    The September Decisions … were induced or affected by actual bias on behalf of the respondent and thereby:

1.1    involved jurisdictional error; and/or

1.2    was otherwise conduct that is amenable to an injunction within the meaning of s. 75(v) of the Constitution.

Particulars

1.3    At the time that the respondent made the September Decisions, he had a pre-existing suspicion that the applicant was, or had been, a member of an outlaw motorcycle gang. This pre-existing state of mind disabled him from undertaking, or being willing to undertake, any or any proper evaluation of the materials before him in the further submission.

1.4    Section 501(5) of the Act does not, on its proper construction, exclude the operation of the rule against actual bias in administrative decision-making.

…

3.    Further or in the alternative, the September Decisions … were made in circumstances where there was a reasonable apprehension of bias on behalf of the respondent and thereby:

3.1    involved jurisdictional error; and/or

3.2    was otherwise conduct that is amenable to an injunction within the meaning of s. 75(v) of the Constitution.

Particulars

3.3    On the basis of the above stated facts, a properly informed lay person might reasonably apprehend that the respondent might not bring an impartial mind to the resolution of the consideration of the cancellation of the applicant’s visa on the basis of the materials before him in the further submission.

3.4    The respondent may have prejudged the issue of the cancellation of the applicant’s visa, both generally and on the basis of his previous express statements that he suspected that the applicant was, or had been, a member of an outlaw motorcycle gang.

3.5    Section 501(5) of the Act does not, on its proper construction, exclude the operation of the rule against apprehended bias in administrative decision-making.

21    Section 501(5) of the Act contains a clear expression that the rules of natural justice do not apply to a decision made pursuant to s 501(3). The Minister did not contend that the expression “natural justice” in s 501(5) encompassed that aspect of the common law providing for the review of decisions on the grounds of actual or apprehended bias. The Court was referred to no authority directly bearing on the question insofar as it relates specifically to the proper construction of s 501(5) of the Act.

22    The parties’ common position is, with respect, the correct one. Considered in context, the phrase “natural justice” is to be construed as limited to the common law rule of natural justice known as the “hearing rule”. In certain decision-making contexts under the Act, that rule is displaced or restated by a statutory code of procedure, such as that set out in Subdiv AB of Div 3 of Pt 2. In the absence of express and unequivocal words, s 501(5) should not be construed so as to shield the decision of the Minister from judicial review for actual or apprehended bias, being a distinct body of principle having distinct origins and purposes to that of the hearing rule.

23    So much is consistent with statements of the High Court to the effect that it would be highly improbable that Parliament would intend that bias would not vitiate the Minister’s decisions under the Act: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [43] (Gleeson CJ and Hayne J). See also: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [11] — [15] (French CJ, Gummow, Hayne Crennan and Kiefel JJ).

Actual bias

24    Mr Burgess’ submissions proceed from the starting point that, as at 16 September 2016, the Minister, by virtue of having made the June decision:

(1)    suspected that Mr Burgess was a member of an OMCG; and

(2)    was positively satisfied (as opposed to merely having a preliminary view) that it was in the national interest that the visa be cancelled, for reasons that included the suspected OMCG membership.

25    That state of mind was, it was submitted, an incontrovertible fact that was not altered by the circumstance that the June decision was subsequently quashed. In that respect, it is to be recalled that the reasons for quashing the earlier decision did not specifically impugn the Minister’s stated suspicion concerning Mr Burgess’ involvement in an OMCG. Nor did the Court identify error in the Minister’s assessment of what the national interest required, except to the extent that the Minister took into account a police record that contained an error in the description of an offence. Accordingly, it was submitted, the Minister had already determined the very issue upon which the September decision depended: it was in the national interest to cancel Mr Burgess’ visa. The Minister could not (and, it was submitted, did not in fact) put out of his mind the information contained in Attachment Z and the adverse conclusions he had reached by reference to it, even though that information was not among the September Materials. The case was not one in which the Minister had a mere pre-disposition toward a particular conclusion, but one in which the Minister had, as a question of historical fact, formed the very state of mind required by s 501(3)(d) prior to making the September decisions, so it was submitted.

26    Counsel’s submissions properly recognised the necessity to show that the Minister made the September decisions with a mind that was not open to persuasion, and that the onus of demonstrating that the decisions were vitiated by actual bias was a heavy one: see South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97] — [98] (McColl JA; Giles and Tobias JJA agreeing); VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [18] — [19] (Kenny J). As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (at [72]):

… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. …

27    See also Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90 – 92 (Deane J).

28    Where actual bias is alleged, the question is to be approached on the evidence and not by reference to the fair-minded lay observer: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33] (Gummow A-CJ, Hayne, Crennan and Bell JJ). An allegation of actual bias is a serious allegation, requiring distinct proof: SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] (Weinberg, Stone and Jacobsen JJ).

29    In Jia, Hayne J said at [185] – [186]:

185    Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

186    Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. …

30    For the reasons that follow, I have concluded that the case of actual bias advanced by Mr Burgess should similarly fail.

31    The Minister’s earlier decision as to what the national interest required was not made in the abstract. The decision involved an evaluation of what the national interest required on the basis of such findings of fact or the formation of such suspicions that were reasonably available on the materials then before the Minister (at least it is not contended otherwise on the present application). It is true that the materials before the Minister at the time of the June decision were determined by the Minister to be sufficient to support a reasonable suspicion that Mr Burgess was involved in an OMCG, and that suspicion was brought to bear in the Minister’s evaluation of whether cancellation of the visa was in the national interest. However, the fact that the Minster had earlier reasoned to that conclusion does not, of itself, demonstrate an actual inability or an actual unwillingness on the part of the Minister to bring an open mind to bear when considering the same question afresh on the basis of a different or more limited range of evidentiary materials.

32    The determination of what the national interest requires is a fact-sensitive and evaluative task informed by a multitude of interrelated and often countervailing considerations. There is nothing arising on the facts of this particular case to support a finding of fact that the Minister was unable or unwilling to make such an evaluation based on a number of relevant considerations, and then subsequently reconsider the question afresh by reference to a different set or subset of them. Expressed another way, the circumstance that the Minister had earlier concluded that the cancellation of Mr Burgess’ visa was justified in the national interest by reason of considerations “A” and “B” is not sufficient to support a finding, made to the civil standard, that the Minister could not later bring an open mind to the question of whether consideration “A” alone justified the same conclusion. The evidentiary findings invited by Mr Burgess are not supported by the mere circumstance that the Minister made the June decision, even assuming the Minister was given no instruction to ignore his previous findings, suspicions or conclusions (a topic upon which there is no evidence in any event).

33    The allegation of actual bias is not made out in respect of the substantive decision to cancel Mr Burgess’ visa. Nor is it made out in respect of the procedural choice to exercise the cancellation power conferred under s 501(3) of the Act, rather than the power conferred under s 501(2). To the extent that there was a reviewable decision to exercise one statutory power in preference over another, it has not been shown how the earlier formation of a suspicion that Mr Burgess was an OMCG member affected the procedural choice.

Apprehended bias

34    The test for apprehended bias is sometimes referred to as the “double might test”. It is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Isbester v Knox City Council (2015) 255 CLR 135 at [12] (Kiefel, Bell, Keane and Nettle JJ). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] — [36] (Allsop CJ, Kenny and Griffiths JJ).

35    The first “might” concerns the likelihood (to be assessed by the Court) of the lay observer forming the reasonable apprehension. The second “might” concerns the content of the apprehension itself. It concerns the assessment (notionally made by the lay observer) of the likelihood of the decision-maker having a foreclosed mind (as opposed to having a predisposed opinion) and so deviating from the course of deciding a case on its merits.

36    Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself: see MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 at [106] and the cases cited therein. Each “might” in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have “a vague sense of unease or disquiet” on the question: Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission (2002) 76 ALD 424 at [100] (Weinberg J).

37    In the present case, the fair-minded lay observer may be attributed with the following knowledge or assumptions:

(1)    the Minister’s previous conclusion as to Mr Burgess’ suspected involvement in an OMCG and the centrality of that issue in the Minister’s evaluation of what the national interest required;

(2)    the Minister’s earlier evaluation of what the national interest required turned in substantial part on adverse suspicions or opinions the Minister had formed about Mr Burgess’ character and the risk posed to the Australian community by his continued presence here;

(3)    the Minister made the September decision knowing that the June decision had been quashed by an order of this Court and the reason for the order;

(4)    by the provision of the September Materials, the Minister was invited to reconsider afresh the question of whether Mr Burgess’ visa should be cancelled by reference to the information contained in those materials; and

(5)    the Minister reconsidered the question of whether Mr Burgess’ visa should be cancelled in circumstances of perceived urgency.

38    The last of those considerations is supported by factual findings made in the course of determining the fourth ground of review, as to which see [53] — [79] below.

39    Counsel for the Minister submitted that the Court must have had regard to the Minster’s status as a senior member of the Executive Government. However, I do not consider the contentions advanced by the Minister on this application to suggest that, by virtue of that status, the content of the test for apprehended bias in this particular case should involve a degree of likelihood higher than “might”. If there be a difference in approach viś a viś judicial and administrative decision-making contexts, it is that explained by McHugh J in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [70]:

While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision. One difference arises when the decision-maker is a Minister who is accountable to the Parliament and the electorate. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Gleeson CJ and Gummow J, Hayne J agreeing, said that ‘[t]here are . . . consequences that flow from the circumstance that a power is vested in, and exercised by, a Minister’. Their Honours noted that, subject to any contrary indication in the legislative grant of power, a Minister would be entitled to act in accordance with governmental policy when making a decision. Thus, it will ordinarily be very difficult to impute bias or the reasonable apprehension of bias to the decision of a Minister who has considered all applications on their merits but made it clear that preference would be given to applicants who complied with government policy. However, it is unnecessary to determine in this appeal whether the application of the test for apprehended bias was affected by reason of the decision-maker being a Minister granted a broad discretion under the Mining Act. Hot Holdings did not rely on the width of the ministerial discretion, the Minister’s political accountability or his government’s policy in respect of mining leases and exploration licences.

(Footnotes omitted)

40    It is true that in the practical application of the test, the lay observer should be taken to appreciate that the decision-maker is a Minister of State responsible for the exercise of a myriad of powers under the Act, able to lawfully apply the policies of the Executive Government in respect of all of them, and ultimately answerable to Parliament in the discharge of his or her functions and the exercise of his or her powers. Moreover, not unlike an administrative tribunal, the Minister may be expected to “bring to the task of deciding an [individual case] a great deal of information and ideas which have been accumulated or formed in the course of deciding other [cases]”: Jia at [180] (Hayne J).

41    In Jia the dual status of the Minister as a member of the Executive and a Member of Parliament assumed importance on the facts, the allegation of bias in that case being founded upon comments made publicly by the Minister in respect of the Executive Government’s policy on visa cancellation cases more generally. The allegation of apprehended bias failed in Jia partly because the lay observer would consider the Minister to be entitled to contribute to public debate in respect of the Executive Government’s preferred policy, both in and out of the Parliamentary context: see [61] — [63] and [102] (Gleeson CJ and Gummow, Hayne JJ agreeing), [245], [284] and [317] (Callinan J). Doing so would not give rise to a reasonable apprehension that the Minister might not bring an impartial mind to the determination of the merits of an individual case.

42    The factual context of the present application for judicial review is different. Mr Burgess’ allegation of apprehended bias is not founded upon the Minister expressing publicly a preference to decide cases in accordance with Government policy, nor can it be said that the Minister’s accountability to Parliament for decisions made pursuant to s 501(3) affects the content or operation of the apprehended bias test in any particular way. The complaint is that an earlier character cancellation decision was in fact made in respect of the same applicant forming the subject of a subsequent character cancellation decision involving the same statutory test.

43    A finding of apprehended bias affecting the September decisions would involve a conclusion that the fair-minded lay observer might reasonably attribute to the Minister an inability or unwillingness to approach the fresh decision with a mind open to a different result, reached upon a considered evaluation of the September Materials. In all of the circumstances, I am not satisfied such an attribution might reasonably be made by a fair-minded person. Rather, the lay observer would attribute to the Minister an understanding that an earlier decision had been quashed and that the evidence upon which any fresh decision may be based may differ in both its content and its quality. It is not enough to show that the Minister made an earlier decision based on a different substratum of facts. What must be shown is that the fair-minded lay observer might reasonably apprehend that the Minister might not be capable of basing a subsequent decision on the different subset of information contained in the September Materials. The circumstances may be sufficient to give rise to what Weinberg J described in Jones as “a vague sense of unease or disquiet”, but to my mind they are insufficient to firmly establish an apprehension of bias in the sense I have described above.

44    This ground of review is not established.

UNREASONABLENESS

45    Paragraph 2 of the grounds of review is expressed as follows:

2.    Further or in the alternative, the September Decisions … were legally unreasonable and thereby involved jurisdictional error.

Particulars

2.1    At the time that the respondent made the September Decisions, he had a pre-existing suspicion that the applicant was, or had been, a member of an outlaw motorcycle gang.

2.2    This suspicion was not rational or reasonable in circumstances where it did not arise on the basis of the materials before him in the further submission.

46    The test for discerning whether a decision is legally unreasonable is explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (French CJ); [66] — [67] (Hayne, Kiefel and Bell JJ); [105] (Gageler J) and by the Full Court of this Court in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [7], [11] — [12] (Allsop CJ). See also Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [62] (Allsop CJ, Griffiths and Wigney JJ).

47    It is Mr Burgess’ case that the decision is legally unreasonable because the Minister held a suspicion, and adopted a path of reasoning by reference to it, for which there was no rational evidentiary foundation in the September Materials. It is in that sense that the decision is said to fall outside the area of decisional freedom vested in the Minister: Li at [28] (French CJ); Stretton at [7], [11] — [12] (Allsop CJ).

48    As it was not contended otherwise, I will assume (without deciding) that the information contained in the September Materials was not reasonably capable of grounding a suspicion that Mr Burgess was a member of an OMCG.

49    On the facts, however, it has not been shown that the Minister’s previously formed suspicion in fact affected the Minister’s reasoning toward the outcome in the substantive September decision. More particularly, it has not been shown that the Minister cancelled the visa for reasons that included a suspicion or finding that Mr Burgess was an OMCG member. For this Court to judicially review an impugned path of reasoning for legal unreasonableness, it must first be satisfied that the path of reasoning was one in fact taken. I am not satisfied that it was.

NO PROPER CONSIDERATION

50    The fourth ground of review is expressed as follows:

4.    Further or in the alternative, the September Decisions … were made in circumstances where the Minister did not give proper consideration to the materials before him and therefore did not constitute a lawful exercise of the discretion pursuant to s. 501(3) and involved jurisdictional error.

Particulars

4.1    In the time available to him between the making of the consent orders and the making of the September Decision, the respondent did not give proper consideration to the material contained in the further submission.

51    It is not disputed that the June decision was quashed by an order of this Court made on 16 September 2016 in Adelaide at 9:20 am Australian Central Standard Time (ACST) and that the September decisions were made approximately 20 minutes afterwards. It is Mr Burgess’ case that the Minister did not receive the September Materials until about five minutes after the June decision was quashed, such that he could not have considered the September Materials for any more than 15 minutes.

52    The period of time in which the Minister considered the September Materials is a question of fact. Mr Burgess bears the onus of proof in respect of that critical issue: AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296 at [8]; Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177; X v Australian Crime Commission (2004) 139 FCR 413 at [22].

When did the Minister receive the September Materials?

53    Mr Burgess relied upon the following evidence:

(1)    the evidence of Mr Peter John Dwyer given by affidavit sworn on 16 January 2017 and the oral evidence given by him in cross-examination;

(2)    the affidavit evidence of Mr Mitchell Simmons affirmed on 21 October 2016; and

(3)    the Departmental records contained in a joint case book tendered on the application.

54    Mr Dwyer is a Director of the Legal Advice and Operational Support Branch of the Department. In that role, he has supervisory oversight of legal officers within the Department. He has responsibility for making decisions of a more significant or strategic nature, and did so in Mr Burgess’ case. Mr Dwyer deposed to having acted on the advice of the Department’s Senior Counsel, Mr Dean. Mr Dean did not give evidence.

55    In some respects, Mr Dwyer’s recollection of the timing and content of his communications with others was uncertain. He relied upon the Department’s documents as a record of some of the things he had said and done. He nonetheless was a forthright witness who gave what I consider to be reliable evidence in respect of those matters within his personal knowledge and actual recollection.

56    In this action, and in the earlier proceedings the Minister has been represented by the Australian Government Solicitor (AGS) by its employee Mr Paul d’Assumpcao. Mr d’Assumpcao receives his instructions from Mr Dwyer or persons acting under Mr Dwyer’s supervision. Mr d’Assumpcao did not give evidence.

57    Mr Simmons is a solicitor and migration agent representing Mr Burgess in this action and in the earlier proceedings. He was not cross-examined on his affidavit.

58    For the most part, the factual events that are within the knowledge of the witnesses are not contentious. The dispute lies in the inferences that are reasonably available to be drawn from the uncontested facts and the Department’s records.

59    The affidavits and documents record events occurring in Adelaide (the place where the proceedings concerning the June decision were commenced and heard) and Canberra (the place where Mr Dwyer, other Departmental officers and the Minister were situated at material times). As at September 2016, the time in Canberra (Australian Eastern Standard Time (AEST)) was one half hour ahead of that in Adelaide (ACST). In the findings that follow, the times of day at which events occurred are expressed in ACST, irrespective of the place where they occurred.

60    Between 1:30 pm and 4:30 pm on 12 September 2016 Mr Dwyer, after consulting with Mr Dean, made a decision to advise the Department to concede the judicial review proceedings in relation to the June decision. The Department’s instructions were communicated to the AGS by a legal officer under Mr Dwyer’s supervision at around 1:40 pm on the following day. At 11:06 am on 15 September 2016, Mr d’Assumpcao sent an email to Mr Burgess’ solicitor advising of his instructions to concede the litigation and proposing terms of orders by consent.

61    Mr Burgess’ solicitor responded by email sent at 12:27 pm. He stated that Mr Burgess sought an additional order or undertaking to the effect that upon the quashing of the June decision, Mr Burgess would be immediately released from immigration detention and returned to Adelaide. Mr d’Assumpcao responded in the following terms:

Mitchell,

Thank you for your email.

For reasons which follow, we think that the further order your client seeks is unnecessary.

First, if the Court makes orders in the terms which we propose, then at that point your client is no longer an ‘unlawful non-citizen’, as that phrase is to be understood in the context of the Migration Act 1958 (Cth). Also at that stage, there is no factual basis to reasonably suspect that your client is an unlawful non-citizen, and we are instructed that, in the ordinary course, your client would be released from detention and he would be returned to Adelaide.

Secondly, as things stand, once the Court sets aside the cancellation decision, there is nothing to prevent the Minister from making a further decision. That is, the Minister will be free to decide what further decision, if any, he wishes to make in relation to your client. Obviously, if the Minister decides to exercise his personal power to again cancel your client’s visa, then your client will be subject to immigration detention in that event.

Against that backdrop, our client does not agree to the additional order your client seeks as outlined below.

In the circumstances, we would be grateful if you could please signify your consent to the proposed orders, and for us to notify her Honour’s chambers in relation to the orders (as agreed) as soon as possible.

Kind regards,

Paul

(original emphasis)

62    Between 12 and 16 September 2016, a series of email communications concerning the earlier proceedings were made between officers of the Department, including Mr Dwyer. Legal professional privilege is claimed in respect of their substantive content. There is no evidence that the Minister was himself the recipient of any of those emails.

63    On 16 September 2016, the September submission (or at least an electronic document that was to become the September submission) was created by an officer of the Department. Later that day the submission was cleared for release to the Minister by a more senior Departmental officer, Mr Niall Stoddart. Mr Stoddart did not give evidence.

64    At 4:25 pm, Mr Stoddart emailed the submission and its attachment to an email address monitored by Departmental Liaison Officers (DLOs), being officers responsible for liaising between the Department and the Minister’s office. The covering email states:

Hi DLOs,

Organised Crime Branch contacted me a short time ago requesting that I send this submission to you via email. I understand that Kristin McGill is expecting it.

65    Ms McGill is an adviser to the Minister. She did not give evidence. Mr Dwyer was unable to say what arrangements were in place for any person to bring emails sent to the DLO inbox to the attention of Ms McGill, or otherwise to the attention of the Minister himself. Mr Dwyer was otherwise unaware of the identity or number of persons who had access to the DLO email inbox and there is otherwise no direct evidence as to when the September Materials were received personally by Ms McGill, or as to when they were in fact put before the Minister.

66    For the Minister it is argued that the absence of evidence as to when the Minister first saw the September Materials is fatal to the present ground of review. Mr Burgess had not demonstrated, for example, that the Minister did not commence his consideration of the September Materials in the evening of 15 September 2016 or earlier on the morning of 16 September 2016. The possibility that the Minister may well have commenced his consideration of a fresh cancellation decision before the quashing of the earlier decision was the subject of this evidence from Mr Dwyer:

COUNSEL: … to the best of your knowledge, is it the Minister’s usual practice to commence considering cancellation of a visa prior to the court quashing a decision which cancelled the visa?

MR DWYER: I think it might occur from time to time. And in this situation, we … knew, essentially, that there were consent orders being, you know, being finalised, and we had prepared the documentation for the Minister to consider the matter afresh. So it wouldn’t be unusual to get the documentation to the Minister prior to the court making – pronouncing the orders.

67    The proposition that the Minister might have given consideration to the September Materials prior to the June decision being set aside is to be accepted. However, the Court is not concerned with possibilities. It is concerned to ascertain what in fact occurred on the balance of probabilities. In light of other evidence as to what in fact occurred, I do not consider Mr Dwyer’s evidence sufficient to support a finding that the Minister read the September Materials prior to the quashing of the June decision in accordance with any usual practice.

68    It is reasonable to infer that the Minister would have first given consideration to the September Materials at the time that his advisers considered it appropriate that he do so. It may also be reasonably inferred that those members of the Minister’s staff responsible for advising him in respect of Mr Burgess’ case were themselves reliant upon the advice from the Department, particularly the Department’s legal advisers. In particular, they would, it may be inferred, have acted upon the advice of the Department in respect of the timing of the Minister’s consideration of any proposed fresh decision.

69    Further, I am satisfied that the Departmental advisers did not intend for the Minister to consider Mr Burgess’ case afresh unless and until the June decision had first been quashed. That inference arises from the content of the submission fronting the September Materials, and the Issues Paper, as well as the communications passing between the Minister’s advisers on the morning that the June decision was set aside.

70    As has been mentioned, the order of this Court quashing the June decision was made at 9:20 am ACST (being 9:50 am AEST). Mr d’Assumpcao attended as instructing solicitor on behalf of the Minister at the hearing. Shortly after the hearing had concluded, Mr d’Assumpcao telephoned Mr Dwyer to inform him that the order had been made. Mr Dwyer then telephoned Ms McGill. Under cross-examination, Mr Dwyer explained the purpose of that call in the following terms:

The purpose was to tell her that, essentially, the court had made orders setting aside the Minister’s first decision, and that the Minister was able to consider the paperwork in relation to the proposed second decision which had been sent up on the previous evening. And it was a matter for the Minister, but he could make a decision from that time.

71    Following his call to Mr Dwyer, Mr d’Assumpcao prepared a type-written memorandum summarising the outcome of that morning’s hearing. The memorandum was emailed to Mr Dwyer and its content was then reproduced in an email transmitted by Mr Dwyer to Ms McGill at 9:41 am ACST (being 10:11 am AEST). That email states:

Hi Kristin,

I refer to my call to you of a few minutes ago. I confirm that Justice Charlesworth has now made the Consent Orders setting aside the Minister’s decision to cancel Mr Burgess’ visa.

The Minister is now able to consider the matter again and make a fresh decision.

Can you email me when a decision has been made.

72    This email was sent one minute after the September decision had already been made. It is nonetheless relevant in that it lends weight to Mr Dwyer’s oral evidence as to the content of his earlier telephone instruction to Ms McGill: both communications envince an intention that the Minister could and should “consider the paperwork” that had been sent to his office the previous evening once the June decision was quashed.

73    The draft pre-prepared Statement of Reasons refers in the past tense to the June decision. The reasons are premised on an assumption that, at the time of the decision, Mr Burgess was indeed the holder of a visa capable of being cancelled by a fresh decision, even if that were not the case at the time of the prior preparation of the draft reasons by a Departmental officer. The grammatical expression of the reasons in the past tense is hardly surprising. The drafter should be understood as intending the reasons, if adopted by the Minister, to be read by Mr Burgess after the fact of the cancellation of his visa for the second time. The reasons themselves do not inform the question of when the Minister first considered the September Materials.

74    The remainder of the submission and Issues Paper may be approached differently. Each of those documents is to be understood as a communication directed to the Minister personally by the Department in advance of the September decision being made. On their face, those documents make it plain that those in the Department responsible for advising the Minister intended that he would in fact receive the communications if and when the June decision was quashed and not before.

75    The opening words of the September submission (an introductory communication comprising five pages) are as follows:

To:        Minister for Immigration and Border Protection

Subject:     Cancellation consideration of Mr Paul BURGESS’ Resident Return (subclass 155) visa under section 501(3)(b) of the Migration Act 1958

Timing:    Following confirmation of withdrawal from the Federal Court proceeding, please consider by 16 September 2016, as agreed by your Office.

76    Relevantly, the submission commences with the following passages:

1.    On 3 June 2016, you cancelled Mr BURGESS’ Class BF Subclass 155 Resident Return visa under section 501(3) of the Act …

2.    On 16 June 2016, Mr BURGESS lodged an application for judicial review of your cancellation decision in the Federal Court of Australia. The case was listed for hearing on 22 September 2016. However, because of an identified legal error in the decision [redacted for legal professional privilege] … decided to withdraw from these proceedings prior to the hearing. On 16 September 2016, the Federal Court made orders, by consent, to quash your decision of 3 June 2016. Following the making of those orders, Mr BURGESS’ visa was reinstated.

3.    It is open to you to undertake a fresh consideration of whether to cancel Mr BURGESS’ Class BF Subclass 155 Resident Return visa under section 501 of the Act …

77    This document does not speak prospectively of the likelihood of the June decision being quashed, nor does it invite the Minister to consider the materials hypothetically before the quashing of the June decision so as to make a prompt decision by reference to the materials as soon as possible in the likely event that the consent orders were made and the visa reinstated. On their terms, the submission and Issues Paper address the actual circumstance that the June decision has in fact been set aside by an order of this Court. It may be reasonably inferred, and I so find, that the Department intended the Minister to read the documents after that critical event had occurred and, as I have said, it may reasonably be inferred that Ms McGill would have acted in accordance with the Department’s intentions.

78    Mr Dwyer gave no evidence to the effect that he positively advised the Minister to consider the materials at an earlier time. As has been mentioned, the objective meaning of his telephone and email communications to Ms McGill suggests the contrary.

79    The evidence to which I have referred supports an inference (and I so find) that the Minister’s attention was directed to the September Materials soon after the June decision was quashed, but not before. That finding may be made with more confidence in the absence of evidence from those within the Minister’s office who would have personal knowledge as to the time at which the materials were in fact put before the Minister: Jones v Dunkel (1959) 101 CLR 298.

Did the Minister properly consider the September Materials in the available time?

80    I have found that the Minister devoted no more than 15 minutes to his consideration of the September Materials. It remains necessary to determine the further allegation that it was improbable that the Minister gave “proper consideration” to the materials in that time frame. That too, is a question of fact, albeit one that is to be determined having regard to the nature of the task to be undertaken by the Minister in the exercise of the power under s 501(3) of the Act, and the nature and content of the materials before him.

81    In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 172 the Full Court identified some of the salient features of the power to cancel a visa conferred by s 501(3) of the Act, including the reposing of the power in the Minister personally, the nature of the enquiry as to what the national interest requires and the statutory exclusion of the rules of natural justice, particularly as they affect a person who cannot in fact satisfy the Minister that he or she passes the character test: see at [53] – [59]. Reflecting upon those features, the Full Court said (at [60]):

These features of the statutory framework, particularly the displacement of the requirements of natural justice and the limited scope of the representations which an affected person may make in seeking to have the Minister revoke a visa cancellation decision, highlight the need for the Minister to exercise his important power under s 501(3) of the Act with appropriate care and attention, including by engaging in an active intellectual process in reviewing relevant materials placed before him to assist in the discharge of this significant statutory function.

82    See also at [45] – [46] and the authorities cited therein, particularly Tickner v Chapman (1995) 57 FCR 451 in respect of the active intellectual process to be given to a document expressly required by statute to be considered by an administrative decision-maker: at 462 (Black CJ), 476 — 477 (Burchet J); 495 — 496 (Kiefel J, as her Honour then was). The Full Court in Carrascalao said (at [47]) that the determination of whether or not a decision-maker has engaged in the requisite active intellectual process in a particular case:

… requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context …

83    A convenient starting point for that analysis in the present case is the written reasons given by the Minister for making the September decisions. They comprise six pages and traverse multiple issues bearing on the selection and exercise of the cancellation power. As has already been observed, the issues purportedly determined by the Minister involved multiple findings of fact and the evaluation of a number of issues involving competing considerations.

84    The reasons contain assertions of fact to the effect that the Minister took into account or gave “full” consideration to all of the September Materials (both generally and more specifically in respect of identified attachments bearing upon particular issues), and further assertions to the effect that the Minister personally formed the opinions and made the factual findings and the evaluative judgments referred to. The reasons convey the impression that the Minister indeed approached the decision to cancel Mr Burgess’ visa with appropriate care and attention and that he engaged in the active intellectual process referred to in authorities such as Carrascalao.

85    In the ordinary course, and subject to probative evidence to the contrary, the Court is entitled to treat the reasons as a statement of the matters the Minister in fact adverted to and took into account: Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [69] (Kenny, Flick and Griffiths JJ) citing NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [16] (Allsop CJ and Katzmann J). That is not to say that a general assertion of fact that a decision-maker has had regard to a certain matter is conclusive evidence as to what was in fact done. As Sackville J said in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 (at [61]):

I accept the proposition put forward by Mr Williams that a mere assertion in general terms that a decision-maker has had regard to a matter does not necessarily show that in fact he or she did so: Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia at 60. Thus the general assertion in the decision record that the Minister had ‘considered all relevant matters’ cannot be conclusive. Nor does such an assertion necessarily negate any inference that may be available from other evidence that a decision-maker failed to have regard to matters he or she was required to take into account. The evidence as a whole must be considered.

86    In assessing the weight to be afforded to the reasons as evidence of what in fact occurred, it is relevant that the reasons were not prepared by the Minister personally. Rather, they were prepared in advance of the September decisions by an unnamed person and then adopted by the Minister without alteration. Indeed, the draft reasons were contained in the September Materials and were therefore among the very materials the Minister purportedly read with sufficient care to adopt them without alteration in the short time frame I have identified. It is reasonable to conclude that the author of the reasons drafted statements of fact as to what the author fairly anticipated the Minister would do in the course of making the decision. Considered in that factual context, the reasons have less evidentiary value than they would have if they had been prepared after the event by a person with personal knowledge of what in fact had occurred.

87    The Minister’s consideration of the draft reasons was not to be undertaken by merely approving of their internal coherency and literary merit. The Minister could not, in law, adopt the draft reasons as his own without personally making each of the findings of fact and performing each of the balancing exercises expressed in the draft. To do otherwise would be to impermissibly delegate to another person all or part of the statutory task vested personally in him.

88    The September Materials totalled 89 pages of varying importance and complexity. The Minister was assisted by the Issues Paper in identifying the materials bearing on the decision and aligning them to issues that fell for his consideration.

89    The Issues Paper summarised certain portions of the materials. Generally speaking, there is no legal bar to the Minister acting on sufficiently comprehensive summaries of information prepared by other persons to assist him in exercising the power under s 501(3) of the Act: Carrascalao at [41]. However, it was not suggested in the Issues Paper itself, nor by Counsel for the Minister in the course of submissions, that the Minister was provided with sufficiently comprehensive summaries such that he could avoid personally considering all of the materials so as to form his own views by reference to them: compare Carrascalao at [61]. As I already observed, the reasons themselves contain assertions that the Minister gave the materials his full consideration in any event, not that he acted upon a summary.

90    A significant portion of the September Materials contained documents that were previously before the Minister at the time of the June decision, although it is unlikely that the detail contained in the documents was able to be recalled by the Minister some months hence, so as to render it unnecessary for the Minister to read and evaluate the same materials again in the new decision-making context.

91    The September Materials contained submissions made by Mr Burgess’ legal representatives following the June decision, as well as family members and character referees. They are significant in both a qualitative and quantitative sense. They bore on the exercise of the Minister’s residual discretion not to cancel the visa, even in the event that the Minister considered cancellation to be in the national interest. Some of those documents were relevant to the Minister’s assessment of a relevant consideration informing the exercise of the power: the best interests of Mr Burgess’ minor children: see Issues Paper at [42] — [56] and Attachments F, H, I, J and K of the Issues Paper. The reasons state that the Minister gave that significant material his “full consideration”. In addition, the Minister professed to have read the sentencing remarks in respect of Mr Burgess’ offences and to have read a psychiatric report concerning Mr Burgess’ mental health. A “full” consideration of those particular documents required something more than superficial perusal.

92    Once all of the substantive materials were “considered” in the manner discussed in Carrascalao, it remained for the Minister to read and respond to a series of “tick-a-box” alternatives presented to him in the covering submission, and to execute the documents presented to him where indicated.

93    In all of the circumstances, I consider it more probable than not that the Minister did not engage in the active intellectual process of reviewing the September Materials. Accordingly, I am satisfied that the Minister did not properly decide the issues bearing on the exercise of the power conferred by s 501(3) of the Act in relation to Mr Burgess’ visa on their substantial merits. The evidentiary value that would otherwise repose in the reasons for the decision is outweighed in the present case by probative evidence to the contrary, namely the limited time in which the statutory task was purportedly undertaken (being no more than 15 minutes), the range and nature of the issues to be determined and the nature and volume of the materials to be considered.

94    These inferences may be more confidently drawn in the absence of evidence from any person with actual knowledge of the manner in which the decision to cancel Mr Burgess’ visa was made: Jones v Dunkel.

95    I would uphold paragraph 4 of the grounds of review and allow the originating application on that basis.

Associate:

Dated:    12 February 2018