FEDERAL COURT OF AUSTRALIA

AQM18 v Minister for Immigration and Border Protection [2018] FCA 944

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    The decision of the respondent dated [redacted] be set aside.

3.    The matter be remitted to the respondent for reconsideration according to law.

4.    Subject to paragraph 5, the respondent pay the applicant’s costs of the proceeding, to be taxed if not agreed.

5.    If either party seeks a variation of the costs order in paragraph 4, the party may within seven days give written notice to the Court and the other party. The Court will then make directions for the determination of the issue on the papers.

6.    Until further order, on the ground that it is necessary to prevent prejudice to the proper administration of justice, the reasons of the Court of the date of these orders are to remain confidential to the parties to the proceeding.

7.    Within seven days, each party file and serve a short submission (or a joint submission) as to the redactions that should be made to the Court’s reasons for judgment. The Court will then publish a redacted form of its reasons.

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

REASONS FOR JUDGMENT ([REDACTED])

MOSHINSKY J:

Introduction

1    In [redacted], the applicant, a citizen of [redacted], was sentenced to a substantial period of imprisonment ([redacted]) for drug-related offences. That sentence was substantially less than it otherwise would have been due to her co-operation with the police and her agreement to be a prosecution witness.

2    On [redacted], the applicant applied for a Protection (Class XA) visa (protection visa), relying principally on the ‘complementary protection’ criterion in s 36(2)(aa) of the Migration Act 1958 (Cth). A delegate of the respondent (the Minister) refused her application. The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision. On [redacted], the Tribunal concluded that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to [redacted], there was a real risk that she would suffer significant harm (the First Tribunal Decision). The basis of the decision was that, as noted above, the applicant had agreed to co-operate with police and to be a prosecution witness. The Tribunal stated that the applicant had provided important evidence against a number of co-accused in criminal proceedings in Australia, which had led to the arrest and imprisonment of people involved in a drug syndicate in Australia. The Tribunal found that the applicant had been offered protection in Australia through the witness protection program. The Tribunal found that, if she were returned to [redacted], there was a real risk of the applicant being arbitrarily deprived of her life by people belonging to a drug syndicate that had been operating in Australia.

3    The Tribunal noted that the material before it could give rise to issues relating to s 36(2C) of the Migration Act, which the Tribunal was not empowered to consider. Accordingly, it remitted the matter.

4    Subsequently, a delegate of the Minister refused the applicant’s application for a visa on character grounds, pursuant to s 501(1) of the Migration Act. The applicant applied to the Tribunal for review of that decision. On [redacted], the Tribunal (constituted by a different member) set aside the delegate’s decision and substituted a decision that the discretion in s 501(1) to refuse the applicant’s visa on character grounds should not be exercised (the Second Tribunal Decision). In reaching this conclusion, the Tribunal noted that the applicant had been found to be a person who met the relevant criteria, apart from character and other outstanding criteria, for a protection visa. The Tribunal stated that international non-refoulement obligations were therefore relevant. Having referred to a number of relevant considerations, the Tribunal stated that the balancing act in such cases was difficult, but the decision that the applicant’s circumstances justified the issue of a protection visa (ie, the First Tribunal Decision) put a different perspective on the matter compared with other types of visas.

5    On [redacted], the Minister gave notice to the applicant that he was considering setting aside the Second Tribunal Decision and refusing the applicant’s application for a protection visa, pursuant to s 501A(2) of the Migration Act. Section 501A(2) relevantly provides that the Minister may set aside certain decisions of the Tribunal, and refuse to grant a visa to a person, if: (a) the Minister reasonably suspects that the person does not pass the character test; (b) the person does not satisfy the Minister that the person passes the character test; and (c) the Minister is satisfied that the refusal is in the national interest. The power in s 501A(2) may only be exercised by the Minister personally: s 501A(5).

6    The applicant’s representative made submissions on behalf of the applicant. The last substantive submission was made on [redacted]. In that submission, the applicant’s representative confirmed that the applicant did not intend to make any further comments.

7    On [redacted], the Minister decided to exercise the power in s 501A(2) to set aside the Second Tribunal Decision and refuse the applicant’s application for a protection visa (the Decision).

8    The Minister provided a statement of reasons of the same date (the Statement of Reasons). In relation to international non-refoulement obligations, the Minister accepted that, in the First Tribunal Decision, the Tribunal had found that Australia had non-refoulement obligations towards the applicant. The Minister also stated that:

(a)    He was aware that the statutory consequence of a decision to refuse the applicant’s application for a protection visa was that she would become liable to removal from Australia under s 198 of the Migration Act as soon as reasonably practicable and, in the meantime, detention under s 189.

(b)    He was also aware that s 197C of the Migration Act provided that, for the purposes of s 198, it was irrelevant whether Australia had non-refoulement obligations in respect of an unlawful non-citizen.

(c)    He was also mindful that, at the time of insertion of s 197C in the Migration Act, the Government had indicated that Australia would “continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198”.

(d)    These mechanisms included the use of the Minister’s personal non-compellable powers in the Migration Act, including the power in s 195A, under which the Minister could grant a visa to a person who was in immigration detention if the Minister considered it to be in the public interest to do so.

(e)    The potential for using s 195A in order to meet Australia’s international non-refoulement obligations was pertinent to the applicant’s case, and “this potential is encompassed in my consideration of alternative management options in relation to her”.

9    It was common ground at the hearing before me that the expression “alternative management options” encompasses:

(a)    the exercise of power in s 195A, which is the Minister’s discretionary power to grant a person in immigration detention a visa, even if they have not applied for one; this power is sometimes used by the Minister to grant a bridging visa or a temporary safe haven visa; the effect of this is to permit the grantee to be lawfully in the community because he or she will be the subject of the visa; and

(b)    the exercise of the power in s 197AB to make a residence determination; the effect of this is, in simple terms, to require a person to live at a particular address outside of closed detention.

10    Although the Statement of Reasons referred to the potential for using alternative management options to meet Australia’s non-refoulement obligations in respect of the applicant, on the same day that he made the Decision the Minister indicated that he did not require a submission on alternative management options.

11    The present proceeding is an application for judicial review of the Decision. By her amended originating application, the applicant relies on the following grounds:

(a)    the Decision was made without jurisdiction because the purported exercise of the power under s 501A(2) was not done within a reasonable time;

(b)    the Minister failed to consider the correct operation of s 197C;

(c)    the Minister failed to afford the applicant natural justice, by making a decision on a basis that was not disclosed to the applicant prior to the Decision; and

(d)    the Decision was affected by apprehended bias, in that the Minister prejudged the matter.

12    For the reasons that follow, I do not consider that the first, third or fourth grounds are made out. However, I consider that the second ground is established. In summary, in my view, the Minister proceeded on a misunderstanding as to the legal consequences of a decision to set aside the Tribunal’s decision to refuse the applicant a visa. The Minister proceeded on the basis that Australia would continue to meet its international non-refoulement obligations. As discussed below, this was an incorrect understanding of the legal consequences of such a decision.

13    It follows that the application is to be allowed, the Decision set aside and the matter remitted to the Minister for reconsideration according to law.

The hearing

14    The materials before the Court at the hearing of the application comprised:

(a)    a Court Book, which included the Decision, the Statement of Reasons and other documents that were before the Minister;

(b)    an affidavit of Coenraad van der Westhuizen (the Westhuizen affidavit), a solicitor employed by the firm of solicitors acting for the applicant, dated 13 April 2018, which annexed some additional documents that had been obtained pursuant to the Freedom of Information Act 1982 (Cth); and

(c)    an affidavit of the applicant dated 23 April 2018, which related to the third ground of review.

15    One of the documents in the Court Book was a copy of the reasons for sentence in respect of the applicant, handed down by a judge of the County Court of Victoria. These were the subject of a suppression order. Accordingly, I made an order by consent that the relevant pages of the Court Book not be inspected or copied by any person other than a party to the proceeding without leave of the Court.

16    At the hearing of the application, an evidentiary issue arose with respect to one of the documents in the Court Book. The document was a submission from the Department of Home Affairs (the Department), previously the Department of Immigration and Border Protection, to the Minister dated 5 December 2017 (the Department’s Submission). The Department’s Submission included the following statement at [56]: “You have been invited to consider alternative management options in [the applicant’s] case (which encompass the possibility of granting a visa under s/195A) should you decide to refuse her application for a Protection visa.” Counsel for the applicant submitted that that statement was hearsay and inadmissible to prove the truth of the proposition that the Minister had been invited to consider alternative management options in respect of the applicant (a proposition that the applicant contested). The applicant’s counsel submitted that the Court should limit the use that could be made of this evidence pursuant to s 136 of the Evidence Act 1995 (Cth). It was submitted that it was prejudicial for the statement to be admitted to prove the truth of the proposition referred to above in circumstances where the Minister was not calling the author of the Department’s Submission, and thus the applicant did not have the opportunity to cross-examine the author. It was also submitted that there was a danger that the statement may be misleading or confusing in circumstances where there was other material that suggested that consideration of alternative management options was dependent on the Minister’s inclination.

17    Counsel for the Minister opposed any limit on the use that could be made of this evidence. It was submitted that, on the Minister’s primary case, the question whether the Minister was invited to consider alternative management options did not arise. However, the Minister’s counsel indicated that it may be necessary to consider whether the Minister was so invited. In response to a question as to which document, if any, constituted the invitation, the Minister’s counsel submitted that the Department’s Submission itself constituted the invitation, in particular, a recommendation to the Minister that “if you decide to refuse [the applicant’s] application for a Protection visa, you may consider alternative management options” (CB 6).

18    I indicated that I would defer ruling on this evidentiary issue and would include my ruling and reasons in my judgment. Neither party had any difficulty with this approach. In my opinion, it is appropriate to limit the use to be made of the statement in [56] of the Department’s Submission such that it is not received as truth of the proposition that the Minister had been invited to consider alternative management options, but only for the fact that this statement was made in the Department’s Submission. To the extent that the statement suggests that such an invitation had been made prior to the Department’s Submission, there is a danger that it may be unfairly prejudicial to the applicant or may be misleading or confusing. However, this ruling does not preclude the Minister from contending that the Department’s Submission itself constituted an invitation to consider alternative management options.

Background facts

The applicant’s convictions

19    On [redacted], the applicant was convicted of the following [redacted] charges (on an indictment): [redacted]. The applicant was also convicted of [redacted].

20    The circumstances of the offending were described in the reasons for sentence of the sentencing judge. The judge considered the offending to be “objectively most serious” and stated that it was “manifestly obvious” that such offending would customarily result in a substantial prison sentence.

21    However, his Honour considered that “one salient feature” spared the applicant from serving such a lengthy prison sentence. This concerned the applicant’s co-operation with police (both Victoria Police and the Australian Federal Police) and undertaking to give evidence for the prosecution, as described in [25]-[27] of the reasons for sentence. The sentencing judge stated that the effect of the applicant’s undertaking was that she had implicated [redacted] other offenders and it was proposed that she would be called as a Crown witness in [redacted] trials that would be variously conducted in [redacted]. The sentencing judge stated that the overall value of the applicant’s evidence could only be regarded as high. His Honour also stated that, although the value of the applicant’s evidence varied between co-offenders, in respect of a number of individual accused, the applicant’s evidence was “of the highest value”. The sentencing judge stated that the assistance that the applicant had provided, coupled with her undertaking to give evidence in forthcoming trials, demanded “a very considerable sentencing discount”. Taking into account the applicant’s early guilty pleas and these matters, the applicant was sentenced to an aggregate term of imprisonment of [redacted] in respect of the [redacted] charges on the indictment. [Redacted].

22    On [redacted], the applicant was released on parole, and taken into immigration detention.

The applicant’s application for a protection visa

23    On [redacted], the applicant applied for a protection visa.

24    On [redacted], a delegate of the Minister refused her application for a protection visa.

25    The applicant applied to the Tribunal for review of the delegate’s decision.

The First Tribunal Decision

26    On [redacted], the Tribunal handed down the First Tribunal Decision, concluding that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to [redacted], there was a real risk that the applicant would suffer significant harm. The Tribunal’s reasons are clearly expressed, logical and demonstrate a thorough consideration of the relevant issues. The Tribunal described the submissions and relevant documents at [13] (pp 4-15) of its reasons. The Tribunal described the evidence and submissions presented at the hearing at [14]-[32] of its reasons. At [33]-[52], the Tribunal described certain country information. The Tribunal’s reasoning and findings were set out at [53]-[74]. The Tribunal stated that the main thrust of the arguments presented on behalf of the applicant was in relation to the complementary protection criterion. The Tribunal considered that the applicant’s claims were best addressed under that criterion.

27    [Redacted].

28    [Redacted].

29    [Redacted].

30    Accordingly, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa).

31    The Tribunal noted that the material before it could give rise to issues relating to s 36(2C) of the Migration Act, which the Tribunal did not have power to consider. Accordingly, the Tribunal remitted the matter to the Department for reconsideration (but with a direction to the effect that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk that she would suffer significant harm).

The second delegate’s decision

32    On [redacted], a delegate of the Minister decided to refuse the applicant’s application for a protection visa on character grounds pursuant to s 501(1) of the Migration Act.

33    It is convenient to refer to the relevant parts of s 501 of the Migration Act at this stage. Section s 501(1) provides that 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. The character test is set out in s 501(6), which provides that a person does not pass the character test if one or more of a number of grounds in paragraphs (a) to (h) is met. Paragraph (a) is that the person has a substantial criminal record, as defined in s 501(7). Section 501(7) provides that a person has a substantial criminal record if (among other things) the person has been sentenced to a term of imprisonment of 12 months or more. In the present case, there was no issue that the applicant fell within this definition.

34    The applicant applied to the Tribunal for review of this decision.

The Second Tribunal Decision

35    On [redacted], the Tribunal handed down the Second Tribunal Decision, by which it decided to set aside the decision under review and to substitute a decision that the discretion in s 501(1) to refuse the applicant’s visa on character grounds should not be exercised. The Tribunal set out the legislative background at [redacted] of its reasons. The Tribunal then referred to Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), being a direction made by the Minister under s 499 of the Migration Act. The Tribunal set out the applicant’s convictions and her history at [redacted]. The Tribunal considered the following three primary considerations set out in Direction 65:

(a)    protection of the Australian community from criminal or other serious conduct;

(b)    the best interests of minor children in Australia affected by the decision; and

(c)    expectations of the Australian community.

36    The Tribunal then considered certain other considerations that were referred to in Direction 65. These included international non-refoulement obligations. [Redacted]. The Tribunal stated that it was bound by the First Tribunal Decision and was not entitled to revisit that decision. The Tribunal stated that the international non-refoulement obligations were therefore relevant in the case before it.

37    At [redacted], the Tribunal weighed the various considerations. After stating that the non-refoulement obligations weighed in favour of the grant of the visa, the Tribunal stated at [redacted]: [redacted].

38    The Tribunal concluded, that, having regard, in particular, to the principles referred to in Direction 65 and the findings made in relation to those principles, the preferable decision was that the application for the visa not be refused.

The Minister’s consideration of exercising the power in s 501A(2)

39    On [redacted], the Department wrote to the applicant giving notice of an intention to consider refusal of her visa application under s 501A(2) of the Migration Act.

40    It is convenient to set out the relevant parts of s 501A at this stage. Section 501A relevantly provides:

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

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

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

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

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

Action by Minister—natural justice applies

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

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

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

if:

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

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

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

…

Minister’s exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

41    The letter dated [redacted] outlined the effect of s 501A, a copy of which was attached to the letter. The letter also included a description of the term “national interest”, referring to Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 and Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [83]. The letter invited the applicant to comment or provide information on whether she passed the character test and on whether or not the Minister should exercise the discretion to refuse the application for a visa. A copy of Direction 65 was enclosed. The letter stated:

When the Minister makes a decision personally, he or she is not required to give consideration to Direction 65, though it provides a broad indication of the types of issues that he or she may take into account.

42    The letter stated that any comments or information should be provided within 28 days after the applicant was taken to have received the notice.

43    On [redacted], the Asylum Seeker Resource Centre provided a submission on behalf of the applicant. The submission relied upon a number of earlier submissions that had been made on her behalf. The submission also referred to and relied upon the First Tribunal Decision and the Second Tribunal Decision.

44    On [redacted], the Department sent a letter to the applicant’s representative giving notice of some further information that had been received and could be taken into account, and giving the applicant the opportunity to comment on this material.

45    On [redacted], the applicant’s representative sent a letter setting out some brief further submissions. The letter stated that, apart from the comments set out in the letter, the applicant did not wish to make any further comments and the Department could continue processing the matter.

46    On 26 May 2017, the applicant’s representative emailed the Department attaching a copy of the decision of this Court in DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 (DMH16), submitting that the judgment was relevant to the consideration of visa refusal in the applicant’s case. The Department responded by email on the same day.

The Decision

47    On [redacted], the Minister made the Decision. This was in the following terms:

I reasonably suspect that [the applicant] does not pass the character test and [the applicant] has not satisfied me that she passes the character test and I am satisfied that it is in the national interest to refuse [the applicant’s] visa application. I have decided to exercise my discretion under s501A(2) of the Migration Act to refuse [the applicant’s] application for a Protection (Class XA) visa. I hereby refuse [the applicant’s] application for a Protection (Class XA) visa. My reasons for this decision are set out in the attached Statement of Reasons.

48    On the same day, the Minister signed the Statement of Reasons. This document comprises 104 paragraphs over 13 pages. In the first section, at [1]-[8], the Minister referred to the Second Tribunal Decision and outlined the power conferred by s 501A(2). In the next section, at [9]-[13], the Minister dealt with the character test. The Minister noted that the applicant’s lawyer conceded that the applicant had a “substantial criminal record” as defined in s 501(7) and therefore failed the character test.

49    In the next section, at [14]-[43], the Minister considered the national interest. The Minister considered the applicant’s criminal conduct and referred to the reasons for sentence of the sentencing judge. The Minister stated, at [34], that in considering the national interest, the Minister had taken into account “the threat posed by illicit drug syndicates to the Australian community and the Government’s commitment to protect the community from these threats”. At [40], the Minister referred to the fact that the applicant had testified on behalf of the State. The Minister acknowledged that the applicant provided assistance to the police “and this assistance has come at some personal cost”. The Minister continued:

However, while I accept there is legislation in place in Victoria to provide for the protection of persons who assist in the administration of justice, I note that [the applicant] has not provided any evidence to support her claims that she was offered witness protection if released into the community.

I note that, if and to the extent that the Minister questioned whether the applicant had been offered witness protection, the Tribunal in the First Tribunal Decision made findings at [62] and [66] that the applicant had been offered witness protection.

50    At [43], being the last paragraph in the section dealing with the national interest, the Minister concluded: “Having regard to [the applicant’s] criminal conduct and her past involvement in organised crime, I find these matters to be sufficiently serious that it is in the national interest to refuse her application for a Protection (Class XA) visa”. It is convenient to note at this point that, in the section on the national interest, no consideration was given to breach of Australia’s non-refoulement obligations.

51    The next section of the Minister’s reasons, at [44]-[96], concerned the exercise of discretion. This section is arranged under the following headings:

(a)    Risk to the Australian community;

(b)    Best interests of minor children;

(c)    Expectations of the Australian community;

(d)    International non-refoulement obligations; and

(e)    Ties to the Australian community.

52    The consideration of international non-refoulement obligations was set out at [83]-[92] of the Statement of Reasons. In particular, the Minister stated as follows at [83]-[88]:

83.    [Redacted].

84.    I accept that the Administrative Appeals Tribunal has found on [redacted] that Australia has non-refoulement obligations towards [the applicant].

85.    I understand that if I decide to refuse [the applicant’s] application for a Protection visa, she will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa, and that in respect of a Protection visa, she will be prevented by s48A of the Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s48B that s48A does not apply to her).

86.    I am aware that the statutory consequence of a decision to refuse [the applicant’s] application for a Protection visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

87.    I am also mindful that at the time of the insertion of s197C in the Act, the Government indicated that Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198. These mechanisms included the use of the Minister’s personal non-compellable powers in the Act, including the power in s195A under which I may grant a visa to a person who is in immigration detention if I think it is in the public interest to do so. I am aware that the potential for using s195A in order to meet Australia’s international non-refoulement obligations is pertinent to [the applicant’s] case and this potential is encompassed in my consideration of alternative management options in relation to her.

88.    I have had regard to the existence of non-refoulement obligations in this case and I have carefully weighed this factor against my finding that it is in the national interest to refuse her application for a protection visa having regard to the seriousness of her criminal history and past involvement in organised criminal activity.

(Emphasis added.)

53    The Minister set out his conclusions at [97]-[104]. The Minister concluded that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations as had been discussed above.

54    On the same day, namely [redacted], the Minister signed the first page of the Department’s Submission (CB 6). That page contained six recommendations to the Minister. Alongside each recommendation were two or more alternatives. I note the following:

(a)    The third recommendation was “indicate your decision and sign the Decision Page”. The Minister circled the alternative “signed”.

(b)    The fourth recommendation was “if you exercise your power under s501A(2) to refuse [the applicant’s] visa application, sign the draft Statement of Reasons … with any amendments you consider necessary”. The Minister circled the alternative “signed”.

(c)    The fifth recommendation was “if you decide to refuse [the applicant’s] application for a Protection visa, you may consider alternative management options in [the applicant’s] case (which encompass the possibility of granting a visa under s195A)”. The Minister circled the alternative “no submission required” and crossed out the alternatives “s195A”, “s197AB” and “please discuss”.

55    It may be inferred that this page was signed shortly after the Minister made the Decision and signed the Statement of Reasons.

The application for judicial review

56    By this proceeding, the applicant seeks judicial review of the Decision. By her amended originating application, the applicant relies on four grounds, which have been set out at [11] above. Each ground will now be considered in turn.

Ground 1

57    By this ground, the applicant contends that the Decision was made without jurisdiction because the Minister’s purported exercise of the power under s 501A(2) was not done within a reasonable time.

58    The applicant submits that, if there is a statutory power to do something, and no express stipulation on the time within which that power is to be exercised, then a limit of reasonable time is implied: see Koon Wing Lau v Calwell (1949) 80 CLR 533 (Koon Wing Lau) at 573-574; Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 at 578; ASP15 v Commonwealth (2016) 248 FCR 372 (ASP15) at [20]-[23]; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 (BMF16) at [20].

59    The applicant submits that the following propositions emerge from the case law

(a)    A delay which is not satisfactorily explained is to be regarded as unreasonable: BMF16 at [27] (citing various authorities). This means the onus will be on the decision-maker to provide a reasonable explanation for a delay: BMF16 at [28].

(b)    What is a ‘reasonable time’ is objectively determined: Bidjara Aboriginal Housing and Land Company Ltd v Indigenous Land Corporation (2001) 106 FCR 203 (Bidjara) at [28].

(c)    In assessing the bounds of a ‘reasonable time’, the legislative context is informative: BMF16 at [25]; Bidjara at [28]-[31]. Thus, if the statutory purpose of the power is for ‘prophylactic’ protection of the public, “there should be as little delay as possible”: Kardas v Australian Securities Commission (1998) 53 ALD 303 at 313. In BMF16, this was explained in terms of “the importance of [the exercise of the power] both to the public and to the interests of the persons it is directed to address”: BMF16 at [25].

(d)    Relatedly, the “likely prejudicial impact upon interest-holders of any delay” is important: BMF16 at [25] and [29]. Thus, it was significant in Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 (Wei) at 477 that the delay caused the affected persons to become illegal entrants.

(e)    Prejudice is especially significant where delay affects the fundamental right to liberty; statutes are to be construed to give maximum effect to that fundamental right unless there is clear legislative intent to the contrary: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, 532. See also Coco v R (1994) 179 CLR 427 at 437.

(f)    Administrative convenience does not factor into what is a ‘reasonable time’: Commonwealth v Fernando (2012) 200 FCR 1 at [91]. Similarly, a lack of resourcing does not make a delay reasonable: Wei at 477.

(g)    The consequence of a decision being made after the expiry of the ‘reasonable time’ limit is that it is out of time, beyond the power of the decision-maker, and therefore invalid: Craig v South Australia (1995) 184 CLR 163 at 177; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 573-574.

60    The applicant points to the period of 365 days between the Second Tribunal Decision and the Decision. Alternatively, the applicant points to the period of 271 days between the applicant’s last substantive submission ([redacted]) and the Decision. The applicant submits that, applying the principles referred to above, the delay was unreasonable. The applicant submits, in summary, as follows:

(a)    The evidence does not reveal any explanation from the Minister about the delay. He bears the onus of explaining it.

(b)    The legislative context weighs heavily towards a delay of 365 days being unreasonable. This is because the provisions concerning character, including the set-aside power, are concerned with keeping non-citizens who are reasonably suspected of failing the character test out of the community. That is, the power in s 501A(2) is for ‘prophylactic’ protection of the public. It was therefore in the public interest that the Minister swiftly determine whether to exercise the set-aside power. The same conclusion is reached when analysing the legislative context from the applicant’s perspective. The Migration Act required the applicant’s detention while the Minister had not made any decision about whether to exercise the set-aside power, because she did not have a visa (Migration Act, s 189). Hence, her most fundamental common law right, being her right to liberty, depended on the Minister’s action or inaction. (Had there been a decision not to exercise the set-aside power, the processing of her visa application would have then resumed, and the visa potentially granted. Had the set-aside decision been made sooner, the applicant would have been able to consider a challenge (and therefore the prospect of finality) sooner.) Worse still, the applicant had in fact applied for a bridging visa, but the Minister refused that application. Thus, the detention was brought about by the legislative consequence of a decision made by the Minister himself, compounding the prejudicial impact of his delay in making the later set-aside decision.

(c)    The effect of the delay was not just the fact of prolonging her detention, but aggravation of her mental health problems. The Minister, through his Department, was on notice that the applicant’s psychological health was progressively deteriorating due to immigration detention and the protracted character process, by no later than 21 September 2016 – that is, during the entire time he was contemplating a set-aside decision. The Minister personally knew of this by no later than 14 February 2017, when he signed a sheet indicating that he wished to consider exercising the set-aside power. The materials accompanying that sheet told him that the applicant was suffering “symptoms of chronic depression and anxiety”, and included the Tribunal’s decision which referred to similar matters.

(d)    As is established by the cases, administrative inconvenience is not an excuse for delay. The Minister did not consider a particularly voluminous or complex factual matrix. Conceptually, the Minister’s task was an uncomplicated exercise. To reason towards exercising the set-aside power, he simply needed to reverse the findings of fact made by the Tribunal that were unfavourable to him, and ‘re-do’ the balancing exercise to arrive at a different conclusion. This did not objectively require a year.

(e)    With two exceptions, in arriving at his eventual decision the Minister did not consider any material that had not already been considered by someone in his Department prior to the second delegate’s refusal on [redacted], or the Second Tribunal Decision on [redacted]. He did not make any new findings of fact.

(f)    The first kind of new material were the submissions provided in response to invitations to comment about the prospect of a set-aside decision. The submissions were confined to 13 pages, did not put forward any new evidence, and were about facts that largely had already been adjudicated.

(g)    The second exception is the high-level Australian Crime Commission report, which was about the harm of drugs generally, and did not deal with the applicant. That report was published in May 2015, well before the Second Tribunal Decision. It was thus available to the Minister and his Department at all material times. In any event, the Minister’s consideration of the report is confined to two short paragraphs, which were no more than statements of common knowledge, suggesting that he did not consider the report particularly relevant: Statement of Reasons, [35], [70].

(h)    Thus it was objectively unreasonable for the Minister to take 365 days (alternatively, 271 days) to make his decision on the basis of substantially the same material as had already been considered by the Department and the Tribunal. The first of those occasions took the delegate less than four months (the delegate’s notice of intention to consider refusal was sent on 16 June 2016, and the decision to refuse was made on [redacted]). The Tribunal took less than three months (the Tribunal made its decision on [redacted]).

61    It may be accepted that, as a principle of statutory construction, where no time limit is prescribed for the doing of a particular act, a court may imply a requirement that the act be done within a reasonable time: Koon Wing Lau at 573-574. The test for determining whether a reasonable time limit has been exceeded was set out in Thornton v Repatriation Commission (1981) 52 FLR 285 at 292; 35 ALR 485 at 492:

… whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity.

62    This test was approved by the Full Court of this Court in ASP15 at [21].

63    Although the period of 365 days, alternatively 271 days, is lengthy, I am not satisfied that it was an unreasonable period of time, taking into account the nature of the power, the statutory context and the circumstances of the case.

64    First, the legislative context in which the Minister made his decision counts against the applicant’s arguments. The power under s 501A(2) is a non-compellable discretionary power and may only be exercised by the Minister personally: s 501A(5). The Minister does not have a duty to consider the exercise of that power, whether or not he is requested to do so or in any other circumstances: s 501A(6). Further, no time limit is provided for in s 501A for the Minister’s consideration of the exercise of the power after the making of the “original decision” (as defined in s 501A(1)).

65    Secondly, I do not consider that any delay occurred in the period up until [redacted]. During this period the Minister gave notice to the applicant that he was considering exercising the power under s 501A(2) and invited her to make submissions. The applicant, through her representative, made submissions in response to this invitation. Thus the period up to [redacted] was required in order to afford the applicant procedural fairness.

66    Thirdly, in relation to the period between [redacted] and [redacted], while this period is lengthy, it is explained in part by the need to consider the implications of the decision of this Court in DMH16, which was handed down on 3 May 2017. The documents obtained by the applicant pursuant to the Freedom of Information Act and annexed to the Westhuizen affidavit indicate that the Department gave consideration to the implications of the decision in DMH16. On 5 May 2017, an officer of the Department indicated that the case had been delayed due to a request from the Minister’s Office for changes in templates regarding the way the Department addressed issues of indefinite detention and removal of persons with character issues (Westhuizen affidavit, p 43). On 30 May 2017, an officer of the Department noted that the applicant’s case was impacted by the decision in DMH16 and that the officer’s experience of previous cases impacted by this type of court outcome was there would be “further delays whilst the legal teams determine the most appropriate course of action going forward” (Westhuizen affidavit, p 42). See also Westhuizen affidavit, pp 50, 54.

67    Fourthly, in relation to the period between [redacted] and [redacted], it appears that on two occasions a departmental submission in relation to the applicant’s case was returned by the Minister (Westhuizen affidavit, pp 51, 57). This is consistent with careful consideration being given to the issues raised by the case and explains, at least in part, the delay in making the Decision.

68    Fifthly, it is relevant to have regard to the high office held by the Minister, the demands of that office, and the substantial amount of material that the Minister was required to take into account (the Department’s Submission and attachments comprised approximately 360 pages). It is not to the point that that material had previously been considered by a delegate of the Minister and by the Tribunal. The Minister was exercising his discretion personally and therefore was required to bring an independent mind to consideration of whether to exercise his discretion pursuant to s 501A(2). Further, the Minister had to consider whether it was in the national interest to exercise his discretion (s 501A(2)(e)); that criterion did not apply to the Tribunal.

69    The judgment in BMF16 is distinguishable. That case involved a Minister’s duty to approve or refuse a citizenship application pursuant to the Australian Citizenship Act 2007 (Cth), which is a different legislative context. In that case, there were substantial periods of inactivity, with no reasonable explanation for the delay. Further, the Minister did not make a decision in the two cases the subject of BMF16 for some 19 and 24 months respectively (BMF16 at [2] and [4]).

70    For these reasons, ground 1 is not established.

Ground 2

71    By this ground, the applicant contends that the Minister failed to consider the correct operation of s 197C of the Migration Act, relying on NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1. In that case it was held that the failure to have regard to the legal consequences of a decision to refuse a visa may constitute a jurisdictional error: see [6]-[10] and [18] per Allsop CJ and Katzmann J; [164]-[167] per Buchanan J. See also Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 at [107], [123]-[126]. There was no dispute at the hearing before me as to the correctness of this general principle. The issue was whether the Minister had misunderstood (and thus failed to take into account) the legal consequences of a decision to set aside the Second Tribunal Decision and to refuse the applicant a visa.

72    As this ground focusses, in particular, on whether the Minister misunderstood the operation and effect of ss 198 and 197C of the Migration Act, it is convenient to refer to those sections. Section 198 relevantly provides that “[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen” in certain circumstances. Section 197C provides:

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

73    The applicant acknowledges that the Minister referred to these provisions in [86] of the Statement of Reasons. However, the applicant submits, in relation to [87] of the Statement of Reasons, that: (a) contrary to the first sentence of [87], any exercise of the removal powers in s 198 could not have met Australia’s international non-refoulement obligations; and (b) the suggestion that non-refoulement obligations could continue to be met through alternative management options was inconsistent with s 197C, as explained in DMH16.

74    The applicant also submits that: the final sentence of [87] only goes as far as suggesting that s 195A was a theoretical possibility; it does not suggest that s 195A was under any actual consideration; in fact, in the documents accompanying the Statement of Reasons, the Minister circled “no submission required” in response to the Department’s prompt that “if you decide to refuse [the applicant’s] application for a Protection visa, you may consider alternative management options” (emphasis added); the Minister crossed out the alternatives on the pro forma recommendations of “s 195A”, “s 197AB” and “please discuss”; the inference to be drawn is that the Minister affirmatively decided that he did not wish to consider, and did not in fact consider, any alternative management options; the consequence is that, at the time of the Decision, the applicant was liable for removal because of ss 198 and 197C; that is, the applicant was liable to be refouled by operation of law, even though the Statement of Reasons asserted that she would not be.

75    In response, it is submitted on behalf of the Minister that he correctly described the legal consequences of any decision to set aside the Second Tribunal Decision, relying in particular on [86] of the Statement of Reasons. The Minister submits that, contrary to the applicant’s submissions, there were no errors in [87] of the Statement of Reasons. The Minister submits that he correctly stated that Australia “will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198”, in light of the fact that non-refoulement obligations were irrelevant to the removal powers (pursuant to s 197C) and so “other mechanisms” would need to be used for Australia to comply with those obligations (ie, the obligations could not be met “through the removal powers”).

76    It is submitted on behalf of the Minister that, contrary to the applicant’s submissions, the Minister understood the legal consequences of his decision. It is submitted that:

(a)    The Minister correctly set out the operation of various provisions of the Migration Act at [85]-[87] of the Statement of Reasons.

(b)    At [87], the Minister stated that he was aware of the potential for using s 195A to meet Australia’s international non-refoulement obligations and that this potential “is encompassed in my consideration of alternative management options”.

(c)    At [88], the Minister stated expressly that he had regard to “the existence of non-refoulement obligations in this case and I have carefully weighed this factor against my finding that it is in the national interest to refuse [the applicant’s] application”.

(d)    At [101], the Minister stated that the risk of further harm to the Australian community “outweighed the countervailing considerations in [the applicant’s] case, including non-refoulement obligations.”

77    Accordingly, the Minister submits, on a fair reading of the Statement of Reasons as a whole, the Minister understood, consistently with DMH16, that the legal consequences of his decision were either that the applicant might be returned to [redacted] or that she might be subject to alternative management options.

78    The Minister also submits that: having taken those matters into consideration, and having decided to exercise the power under s 501A(2) to refuse the applicant’s visa application, the Minister then went on to consider alternative management options, but determined that no submission would be required; in other words, the Minister rejected alternative management options; this does not affect the legality of the Minister’s exercise of the discretion under s 501A(2) as those matters constitute two distinct non-compellable discretions. Further, it is submitted that, even if the Minister did not consider alternative management options at all, this would not establish that he misunderstood the legal consequences of his decision. He clearly understood in the terms of his Statement of Reasons that non-refoulement obligations were a relevant factor in light of the operation of ss 195A, 197C and 198.

79    In my view, for the reasons that follow, this ground is made out.

80    The effect of ss 198 and 197C, and other relevant provisions, was explained by North ACJ in DMH16 at [26]:

The Minister’s reasons disclose that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minister considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.

(Emphasis added.)

81    It was not submitted on behalf of the Minister in the present case that DMH16 was wrongly decided or that the above passage does not accurately describe the effect of ss 198 and 197C. Counsel for the Minister accepted that: the effect of s 197C is that international non-refoulement obligations are no longer relevant to the obligation to remove a person under s 198; and the consequence is that, subject to the Minister considering alternative management options such as s 195A, the person must be removed as soon as reasonably practicable notwithstanding that Australia may have non-refoulement obligations in respect of the person (T66).

82    While the Minister correctly summarised the effect of ss 198 and 197C in [86] of the Statement of Reasons, this must be read together with [87] of the Statement of Reasons. I consider that paragraph to demonstrate a misunderstanding as to the operation and effect of ss 198 and 197C. In the first sentence of [87], the Minister stated that he was mindful that “at the time of the insertion of s197C in the Act, the Government indicated that Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198”. I do not consider this to be merely a statement about the historical position as at the time of introduction of s 197C. There is no suggestion in the Statement of Reasons that the position had subsequently changed, and there was no reason to refer to this if it did not have ongoing relevance. Further, I do not consider this statement to refer only to the possibility that Australia could still meet its international non-refoulement obligations. The sentence is expressed in definite terms – Australia “will” continue to meet its international non-refoulement obligations. In other words, the sentence expresses an understanding that non-citizens would not be refouled under s 198 in breach of Australia’s international non-refoulement obligations. However, as outlined above, the true position was that, subject to consideration of alternative management options such as s 195A, a person in the position of the applicant would be removed as soon as practicable, irrespective of whether Australia had international non-refoulement obligations in respect of the person.

83    The balance of [87] of the Statement of Reasons is consistent with the view that the Minister proceeded on the basis of this misunderstanding. The Minister stated that the mechanisms for meeting Australia’s international non-refoulement obligations “included the use of the Minister’s personal non-compellable powers in the Act, including the power in s195A under which I may grant a visa to a person who is in immigration detention if I think it is in the public interest to do so”. The sentence conveys that there were a number of different ways in which Australia’s international non-refoulement obligations could be met. This is consistent with the proposition that Australia would continue to meet its international non-refoulement obligations, the only question being which mechanism would be used to achieve this.

84    In the last sentence of [87], the Minister stated that he was aware that “the potential for using s195A in order to meet Australia’s international non-refoulement obligations is pertinent to [the applicant’s] case”. He also stated that “this potential is encompassed in my consideration of alternative management options in relation to her”. I note that there is a tension or inconsistency between the last sentence of [87] of the Statement of Reasons – which suggests that the Minister was considering the exercise of the power in s 195A – and the Minister circling “no submission required” in respect of alternative management options on the first page of the Department’s Submission, which was signed on the same day. Putting that issue to one side, the last sentence of [87] reinforces, or is at least consistent with, the proposition that Australia would continue to meet its international non-refoulement obligations.

85    I have given consideration to whether [87] should be read as merely stating that there was the potential for the Minister to exercise certain non-compellable powers, such as the power in s 195A; in other words, that Australia would meet its international non-refoulement obligations if the Minister decided to exercise such a power. However, I do not consider this to be the correct interpretation of the paragraph, read in context. First, the first sentence of [87] is expressed in unequivocal terms – Australia “will” continue to meet its international non-refoulement obligations through other mechanisms. Secondly, if the Minister had correctly understood that, unless he exercised a power such as s 195A, the applicant would be returned to [redacted], it is likely that he would have given careful consideration to the risk that the applicant faced upon return to [redacted]. As noted above, in the First Tribunal Decision, the Tribunal found that, because the applicant had co-operated with the police and agreed to give evidence for the prosecution in a number of trials, there was a real risk of her being arbitrarily deprived of her life by people belonging to a drug syndicate that had been operating in Australia. The Minister did not indicate any disagreement with that finding; indeed, he accepted the findings in the First Tribunal Decision (eg, at [84]). However, the Statement of Reasons does not contain any detailed consideration of the risk that the applicant would face if returned to [redacted] or any weighing of this risk against other relevant factors. Thirdly, if the Minister had correctly understood that, unless he exercised a power such as s 195A, the applicant would be returned to [redacted], it is likely that he would have discussed, in the context of the national interest, the breach of Australia’s international non-refoulement obligations if such a power were not exercised. But the discussion of the national interest (at [14]-[43] of the Statement of Reasons) is silent on this matter. For these reasons, I do not read [87] as merely referring to the potential that Australia would meet its international non-refoulement obligations if the Minister decided to exercise a power such as s 195A; rather, I read the paragraph as indicating that Australia would meet its international non-refoulement obligations. Even if it were the case that part of [87] could be read as merely stating a potential for the Minister to exercise his non-compellable powers, I do not consider that this would overcome the difficulty in the first sentence of [87] as described above.

86    In [88] of the Statement of Reasons, the Minister stated that he had had regard to “the existence of non-refoulement obligations in this case” and had “carefully weighed this factor” against his finding that it was in the national interest to refuse the applicant’s application for a protection visa. This paragraph focusses on whether to refuse the applicant a protection visa; it does not address or contradict the proposition that Australia would continue to meet its international non-refoulement obligations.

87    In [101] of the Statement of Reasons, the Minister stated that the “above consideration” (being considerations set out in [100] that were adverse to the applicant) “outweighed the countervailing considerations in [the applicant’s] case, including non-refoulement obligations”. Again, this paragraph does not address or contradict the proposition that Australia would continue to meet its international non-refoulement obligations.

88    Further, I do not consider [88] or [101] to be clear enough to demonstrate that the Minister proceeded upon the basis of a correct understanding of the legal consequences of a decision to refuse the applicant a visa. Thus I do not consider that these paragraphs overcome the difficulty that I have described above with regard to [87] of the Statement of Reasons. Similarly, I do not consider the statements in [86] to overcome the difficulty with [87]. The two paragraphs need to be read together. When so read, [87] qualifies the statements contained in [86].

89    For these reasons, I consider that the Minister misunderstood (and therefore failed to take into account) the legal consequences of a decision to refuse the applicant a visa. That had a material bearing on the Decision, as the above discussion indicates. In particular, had the Minister proceeded on the correct basis, it is likely that he would have given detailed consideration to the risk that the applicant faced upon being returned to [redacted] and weighed that risk against other relevant factors. I note that the error in this case is similar to that found by Siopis J in NKWF v Minister for Immigration and Border Protection [2018] FCA 409 at [19]-[45]; see especially at [41].

90    I note for completeness that, in the section of the Statement of Reasons dealing with the national interest ([14]-[43]), not only is there no discussion of the breach of Australia’s international non-refoulement obligations that would occur if the appellant were returned to [redacted], there is also no discussion of whether returning the applicant to [redacted] might reduce the prospect of Australian prosecution authorities obtaining witness testimony from people such as the applicant in the future. It may be that, had the Minister not proceeded upon the misunderstanding described above, he would have considered this issue in connection with the national interest.

91    In light of the above, it is unnecessary to consider the applicant’s submissions based on the tension or inconsistency between the statements in [87] of the Statement of Reasons and the fact that, on the same day, the Minister circled “no submission required” in relation to alternative management options on the first page of the Department’s Submission.

92    Ground 2 is established.

Ground 3

93    By this ground, the applicant contends that the Minister failed to afford the applicant natural justice, by making a decision on a basis that was not disclosed to the applicant prior to the Decision.

94    The applicant contends that there was, in the present case, a similar denial of procedural fairness as found in NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44. The applicant submits that: she was given Direction 65 and invited to comment; she was told that the Minister was not required to give consideration to Direction 65, “though it provides a broad indication of the types of issues that he or she may take into account”; she was also told that she should read Direction 65 carefully and that she should “address each paragraph in PART B” that was relevant to her circumstances; Direction 65 relevantly contained paragraphs the effect of which was that Australia would not remove a non-citizen as a consequence of the refusal of their visa application to the country in respect of which a non-refoulement obligation existed, and that refusal would mean that the non-citizen would face the prospect of indefinite immigration detention (see Direction 65 at [14.1](2) and (6)); the applicant’s lawyers responded on this basis; had the applicant been on notice of the prospect of a decision the consequence of which was refoulement, there is every chance that she would have made a submission as to why she should not be refouled.

95    While this ground has some merit, I do not consider it to be established on the facts of the present case. The submissions made on behalf of the applicant addressed the question of the legal effect of a decision to refuse to grant the applicant a visa (CB 196). After referring to the view that “Australia’s non-refoulement obligations entail that a person owed protection obligations cannot be returned to his or her country of origin under section 198 of the Act” and accordingly the person faced the prospect of indefinite detention, the submission stated:

However, an alternate view is that this potentially involves a misunderstanding of the relevant framework. By reason of the enactment of section 197C of the Act, it is no longer the case that the Commonwealth cannot lawfully remove an unlawful non-citizen to a country on the basis that that removal would be inconsistent with Australia’s non-refoulement obligations. The consequence is that the Commonwealth now has power under section 198 (read with section 197C) to remove an unlawful non-citizen to a country where they fear serious or significant harm, despite the fact that to do so would be inconsistent with Australia’s non-refoulement obligations. That is the scheme Parliament has enacted, but that same scheme leads to a situation which is clearly not in the national interest (breach of non refoulement obligations). This is the tension with which the Minister must grapple, should he be inclined to refuse this visa.

96    This “alternate view” accords with the position of both parties at the hearing before me. In circumstances where the applicant’s legal representative recognised the correct position, I do not consider that the applicant was denied procedural fairness because Direction 65 described the legal position differently. The applicant’s legal representative was alive to the correct legal position and the applicant had the opportunity to present submissions on that basis.

97    Further, the applicant’s representative’s submission dated 6 April 2017 referred to and relied on (among other things) the First Tribunal Decision. This dealt in some detail with the risks the applicant faced if returned to [redacted]. Thus, while it is true that the applicant’s submissions might have been expressed differently had Direction 65 not said what it did, I do not consider there to have been any practical injustice.

98    Ground 3 is not established.

Ground 4

99    By this ground, the applicant contends that the Decision was affected by apprehended bias, in that the Minister prejudged the matter.

100    The applicant relies on the principles regarding apprehended bias set out in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 and Ebner v Official Trustee in Bankruptcty (2000) 205 CLR 337. The applicant submits that: an internal Department email of 14 November 2017 suggests that the applicant’s matter was the subject of submissions to the Minister “on two occasions in May and July” 2017, but that on each occasion the submission had been “returned for re-draft … because of ongoing developments in case-law, most recently the case of DMH16” (Westhuizen affidavit, p 57); the author of that email then referred to “ongoing delays with clearing DMH16 template options”; bearing in mind that the test for apprehended bias is the ‘double might’ test, that is, “connot[ing] the concept of a real chance or a realistic possibility, failing short of a probability” (McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at [110]), the evidence establishes that a fair-minded and informed observer might have apprehended that the Minister might have determined to set aside the Second Tribunal Decision in either May or June (or both), but was concerned to ensure that his decision was immune from judicial review on account of the “ongoing developments in case-law”; that is, rather than give consideration to how the case law might have required him to re-reason the matter in a legally correct way (and therefore be open to the possibility of not exercising the set-aside power), the observer might have apprehended that by [redacted] the Minister might have prejudged the matter (see Webb v The Queen (1994) 181 CLR 41 at 47).

101    I do not consider this ground to have any substance. The email that is relied upon, which refers to the consideration of developments in the case law, and the preparation of template options, does not provide a basis to suggest that the Minister might not bring an impartial mind to his consideration of whether or not to exercise the power in s 501A(2).

Conclusion

102    It follows that the application is to be allowed, the Decision set aside and the matter remitted to the Minister for reconsideration according to law. There is no apparent reason why costs should not follow the event. Accordingly, I will make an order that the respondent pay the applicant’s costs of the proceeding. However, I will give the parties a short period of time in which to give written notice if they wish to seek a variation of the costs order (for example, a party may wish to seek a lump sum costs order).

Associate:

Dated:    21 June 2018