FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
14 AUGUST 2019
THE COURT ORDERS THAT:
1. The decision of the Minister made on 7 February 2018 not to revoke the cancellation of the applicant’s visa under s 501CA of the Migration Act 1958 (Cth) be set aside and the matter remitted for determination according to law.
2. The respondent pay the applicant’s costs, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The applicant has applied for judicial review of the decision of the Minister for Home Affairs under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) not to revoke the mandatory cancellation of his Global Special Humanitarian visa under s 501(3A) of the Act. The visa was cancelled because the applicant did not satisfy the character test (s 501(6)(a) and s 501(7)(c)).
2 The application for judicial review pleads four grounds:
1. The Minister of Home Affairs, Peter Dutton, (the Minister), the decision-maker, had no power to make this decision in respect of the Applicant under s. 501CA of the Migration Act 1958 (Cth) by reason that he was not constitutionally permitted to act as a Minister for the purposes of the Act, as a result of being constitutionally ineligible to exercise the power of the Minister at the relevant time.
2. The Minister erred by not discharging his statutory task on a correct understanding of the law, namely by conflating Australia’s ‘international non-refoulment obligations’ on the one hand with s. 36 of the Migration Act 1958 (Cth) and ‘harm outside of the concept of non-refoulment and the international obligations framework’ on the other.
3. The Minister’s decision is vitiated by jurisdictional error by reason that there would be a reasonable apprehension of bias that the Minister did not approach the decision concerning the Applicant with an open mind, namely because of media statements he gave on 19 January 2017 referring to the Applicant and Minister’s commitment to deportations.
4. The Minister erred by failing to discharge his statutory task on a correct understanding of the law, namely by relying on it being unnecessary to determine whether non-refoulment obligations are owed to the Applicant because those obligations would be ‘fully considered’ in the course of processing the application for a protection visa, in circumstances where a future Minister deciding such an application personally would not be required to ‘fully consider’ those obligations as codified in s 36 of the Migration Act 1958 (Cth) or otherwise, especially having regard to s 36(1C).
(Errors in original.)
Grounds 2 and 4
3 Grounds 2 and 4 can be considered together as they are related.
4 The Minister provided the applicant with a written notice setting out the reasons for his decision, as required by s 501G of the Act. Those reasons relevantly included the following at paras 16–19:
International non-refoulement obligations
As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face harm if he returned to [redacted]. [The applicant] and a youth services case manager refer to the possibility of him being killed or forced to join a militant group and his representative has made submissions in this respect. While the youth services case manager refers variously to [redacted] and [redacted], and [the applicant] initially claimed to be a [redacted] citizen, I take these claims to refer to [redacted] and/or [redacted], since prevailing conditions in those countries, especially the latter, are much more likely to include such activities than [redacted].
I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.
A protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including the character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria or referring the application for consideration under s501. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.
I have also considered [the applicant’s] claims of harm upon return to [redacted] or [redacted] outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant’s] claims are such as to engage non-refoulement obligations, [the applicant] would face hardship arising from the conflicts in those countries were he to return to [redacted] or [redacted].
5 The grounds raise for determination whether the Minister proceeded on an incorrect understanding of the law by conflating the criteria that are considered in a protection visa application with Australia’s international non-refoulement obligations. In support of the grounds, it was argued that the question of Australia’s non-refoulement obligations to the applicant was not concerned with the same legal question that arises in determination of a protection visa claim under s 36 of the Act, in that the criteria are different and Australia may owe international non-refoulement obligations but the decision-maker would nevertheless be lawfully permitted to refuse the protection visa application under s 36 of the Act. It was submitted that the Minister fell into legal error by regarding an assessment of Australia’s international non-refoulement obligations as being covered by a future assessment of the criteria under s 36 of the Act. The Minister submitted the Court should reject the argument “just as a similar argument was rejected by [the] Court in Ibrahim v Minister for Home Affairs  FCA 1592 at - (Besanko J)”.
6 Since this case was heard, the Full Court has handed down its decision in Ibrahim v Minister for Home Affairs  FCAFC 89 (“Ibrahim FFC”), in which legal error was found in materially identical reasons given by the Assistant Minister as to why he considered it unnecessary to determine whether non-refoulement obligations were owed in respect of the appellant in that proceeding. In consequence the parties were given the opportunity to file further submissions addressing the Full Court judgment.
7 Stated succinctly, in the further submissions it was argued for the applicant that Ibrahim FFC was directly on point. The Minister argued that notwithstanding the similarity of the reasons of the Assistant Minister in Ibrahim FFC to the reasons of the Minister in this case, the Court should not find that the Minister proceeded on a misunderstanding of the law involving conflation of the kind relied on in ground 2 in this case. It was also formally submitted that Ibrahim FFC was wrongly decided on this point.
8 In Ibrahim FFC the relevant reasons given by the Assistant Minister were as follows:
 I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr IBRAHIM for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application.
 A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referring of the application for consideration under s501. I am therefore confident that Mr IBRAHIM would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.
 I have also considered Mr IBRAHIM’s claims of harm upon return to Nigeria outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr IBRAHIM’s claims are such as to engage non-refoulement obligations, Mr IBRAHIM may face hardship arising from his Christian faith were he to return to Nigeria.
9 In holding that there was legal error the Full Court reasoned as follows at  and –:
As is apparent in these passages, the Assistant Minister said, in effect, that it was unnecessary to consider possible non-refoulement obligations in making his decision under s 501BA(2) because obligations of that kind would be considered in the context of an application for a Protection visa, which the appellant would be able to make if he wished.
In our opinion, a number of matters support the conclusion that the Assistant Minister did conflate Australia’s non-refoulement obligations under the Refugees Convention with the protection obligations to which the Act refers and which are considered on an application for a protection visa. First, there is the very use by the Assistant Minister of the term “non-refoulement obligations” which, as indicated, derives from the Refugees Convention. The Assistant Minister used that term and not the term “protection obligations” appearing in s 36(2)(a) of the Act. It is reasonable to infer that, in doing so, the Assistant Minister was intending to deal with the appellant’s submission concerning Australia’s obligations under international law in the terms in which it had been expressed.
Secondly, the Assistant Minister gave as his reason for holding that it was unnecessary for him to consider whether non-refoulement obligations were owed the fact that the appellant was able to apply for a Protection visa. That is strongly suggestive of a belief on the Assistant Minister’s part that non-refoulement obligations under the Refugees Convention are the same as protection obligations under s 36(2)(a).
Thirdly, the Assistant Minister’s reference in  to the manner in which protection applications are assessed confirms his conflation of the two obligations. This is apparent in the Assistant Minister’s expression of confidence in the last sentence of  that the appellant would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.
Fourthly, the Assistant Minister’s reference in  to his consideration of the appellant’s position “outside of the concept of non-refoulement and the international obligations framework” indicates a belief by the Assistant Minister that he had addressed the issues of non-refoulement and the international obligations framework in the preceding two paragraphs.
Finally, it is pertinent that, despite the difference between non-refoulement obligations under the Refugees Convention, on the one hand, and protection obligations under s 36(2)(a), on the other, the Assistant Minister did not advert to those differences.
In our view, when the Assistant Minister’s reasons are read fairly and with regard to the surrounding context, it is apparent that he used the term “non-refoulement obligations” in  of his reasons as a form of shorthand reference to both non-refoulement obligations arising under international law and to protection obligations arising under s 36 of the Act. His statement that “the existence or otherwise of non-refoulement obligations would be considered in the course of processing the [Protection visa] application” is a strong indication of this.
For these reasons, we consider that the Assistant Minister did proceed on the misapprehension for which the appellant contends, namely, that both non-refoulement obligations under the Refugees Convention as well as protection obligations under s 36(2)(a) would necessarily be considered in the context of an application by the appellant for a Protection visa.
The Assistant Minister’s belief involved misapprehension of the effect of the Act because, on an application for a Protection visa, it is only the criteria in s 36 which are to be considered. Section 65 has the effect that a Protection visa is to be granted if the Minister is satisfied of those criteria and refused if they are not. The internal relocation principle in relation to the existence or otherwise of non-refoulement obligations cannot form part of that consideration, at least in the application of s 36(2)(a).
For the reasons given earlier, it was necessary for the Assistant Minister to have a correct understanding of the Act when forming the state of satisfaction required by s 501BA(2). That is so, even if the existence or otherwise of non-refoulement obligations in respect of the appellant was not a mandatory relevant consideration under s 501BA(2) (MIBP v Le at 41]). It is understandable, given that it is a matter concerning Australia’s international obligations and the terms of s 197C of the Act, that the Assistant Minister did consider it appropriate that account be taken of Australia’s obligations with respect to non-refoulement. As already noted, his reasons indicate that he intended to do so. However, the Assistant Minister misapprehended the way in which that could occur under the Act.
The Assistant Minister’s error was material given the potential for the internal relocation principle to be applied in the appellant’s circumstances.
Accordingly, we conclude that the Assistant’s Minister’s error was jurisdictional. It was the form of error to which the majority in BCR16 referred at .
(Errors and emphasis in original.)
10 I am bound to apply the Full Court decision in Ibrahim FFC and the Full Court’s reasoning is directly on point in this case. Applying the same reasoning, I find that the Minister did proceed on a misunderstanding of the law by conflating the criteria for the grant of a protection visa under s 36 of the Act with Australia’s non-refoulement obligations under international law. I do not accept the Minister’s submission that there is a critical difference between the facts of Ibrahim FFC and the facts of this case. That critical difference was said to be that the decision-maker in Ibrahim FFC was the Assistant Minister whereas here it was the Minister. That was said to be significant because the Minister’s understanding of the difference between protection claims under the Act and non-refoulement obligations at international law was made plain by Direction 75 which the Minister himself made only a few months before the impugned decision here and that Direction 75 and Direction 65 are inconsistent with an inference equivalent to that drawn in Ibrahim FFC.
11 Direction 75 makes clear that the criteria for the grant of a protection visa under s 36 may differ from Australia’s non-refoulement obligations at international law. It provides at para 3(a):
Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.
12 The Direction further provides at para 4 of the preamble under the heading ‘Principles’:
4. Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances.
13 Direction 75 does not, however, gainsay that the Minister in his reasoning in this case conflated protection claims under the Act and non-refoulement obligations at international law. Notwithstanding what is said in Direction 75, I must have regard to the actual reasons given by the Minister and determine whether those reasons disclose legal error. Those reasons are not materially distinguishable from the reasons of the Assistant Minister in Ibrahim FFC and, for the reasons given by the Full Court in Ibrahim FFC, the Minister fell into the same legal error in his reasoning process.
14 Next it was submitted for the Minister that even if the Minister did proceed on a misunderstanding of the kind found in Ibrahim FFC, it was not a material error: cf Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252;  HCA 3 at . It was submitted that whereas as recorded in Ibrahim FFC at  the internal relocation principle was potentially relevant because of the claim that the appellant had a well-founded fear of persecution in the north of Nigeria, no such claim was made here. I disagree. Contrary to the Minister’s submission, as in Ibrahim FFC the internal relocation principle is potentially relevant to the assessment of the applicant’s non-refoulement claim concerning his ethnicity, having regard both to the country information and submissions put by the applicant to the Minister that the particular risk of harm to the applicant arising from ethnic domestic conflict will differ depending upon where in the country of proposed return he were to return or relocate. In the circumstances, I am satisfied in the present case that the error was material.
15 Accordingly the applicant has succeeded on grounds 2 and 4.
16 The applicant submitted that the Minister’s decision was affected by apprehended bias because a fair-minded and appropriately informed lay observer might reasonably apprehend that the Minister might not bring a fair, impartial and independent mind to the determination of the matter on its merits in light of public comments made by the Minister before the decision.
17 The applicant identified public comments of the Minister in an interview with Tony Jones on Radio 3AW on 19 January 2017 as follows:
TONY JONES: Well, you’re here of course because we see this morning that you’ve, like many of us as I said from the outset, have had a gutful of [redacted] and all that goes with it, but now you’re acting on that and as such; four youngsters with links to [redacted] will be deported – three of them are [redacted], the other from [redacted] – in fact, we’re told one of the [redacted] has already been sent back.
THE MINISTER: It certainly is. There’s obviously been a lot of work that’s taken place with the Federal Police, with my Department, the Australian Border Force – in concert with the Victorian Police – to try and identify people who may have committed crimes or people who are members of gangs and we have a cancellation power under the Migration Act, section 501, which means if people have been doing the wrong thing, if they’re here on a visa, we can cancel that visa and deport them.
We’ve done that in record numbers, particularly for outlaw motorcycle gang members, for rapists, for people who have committed serious crimes against Australians. In the end, this country has been made great by migration because people have come here, in many cases, trying to escape the ravages of war, of civil war, of unrest and conflict, terrorism and they want to come to a country that is safe and they want to come to a great city like Melbourne which is safe, but unfortunately over recent times the activity of [redacted] and others have meant that Melbourne is in the headlines for the wrong reasons.
TONY JONES: And they’re all over 18?
THE MINISTER: These people will be, yes…
TONY JONES: You’re saying there that you are looking at others, they’re obviously [redacted] related; are they aware that they’re on the verge of being booted out as well?
THE MINISTER: No, they won’t be.
18 The applicant also sought to rely on newspaper articles. I ruled those articles to be inadmissible on the basis that they merely conveyed a journalist’s opinion of what the Minister had said and/or conveyed.
19 This Court has the power to review the Minister’s decision on the ground of apprehended bias: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507;  HCA 17 at  (“Jia Legeng”), citing R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177;  HCA 27 at 189 (Kitto J):
It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself… The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed.
See also Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 197;  FCAFC 205 at – (Griffiths, Moshinsky and Bromwich JJ) (“Zaburoni FFC”).
20 The applicant relied on several passages in O’Sullivan v Medical Tribunal of New South Wales  NSWCA 374 at , , – (“O’Sullivan”) in support of his claim of apprehended bias, where the NSW Court of Appeal said:
21. It was not in contention that the basis of the present application is the principle that a judicial officer is disqualified if a fair-minded lay observer might reasonably apprehend that the officer might not bring an impartial mind to the resolution of the question that the Tribunal is required to decide: see, e.g. Ebner v Official Trustee in Bankruptcy  HCA 63; 205 CLR 337 at  (Gleeson CJ, McHugh, Gummow and Hayne JJ). As was explained in Ebner, that test is based upon the fundamental principle that “the tribunal be independent and impartial”. The relatively low hurdle created by this test is justified on a number of grounds. First, the fundamental nature of the principle is one which demands strict adherence. Secondly, confidence in the system of justice relies in part upon the appearance as well as the actuality of its impartial administration. Thirdly, the very need for impartial administration of justice limits the extent to which it is appropriate to inquire into the actual state of mind of the decision-maker or the way in which a particular factor influences the decision-making process.
24, Where the matter said to give rise to an apprehension of bias is specific and is limited to particular documents, there are specific considerations which will determine the outcome of an application such as the present one. The first is the nature of the material and the sense in which it is extraneous to the inquiry being undertaken. The second is the nature of the tribunal before which the inquiry is being held.
31. Although it is not necessary to adopt this position in the present case, it is at least arguable that the fair-minded (but not legally trained) observer will have a degree of scepticism about any judicial pretensions to a monopoly over the capacity to exclude from consideration, material that has been rejected or withdrawn. Given the underlying policy (namely the need to protect the appearance of impartial justice) arguably such healthy scepticism should be acknowledged and accepted by the Court.
32. … as the Deputy Chairperson noted in the present case, the Tribunal does not undertake its fact-finding exercise in isolation from the judicial member. It is therefore not merely a matter of faith that the non-legal members of the Tribunal will follow the directions of the judicial member with respect to questions of law and procedure. This, too, is a factor which the fair-minded observer would take into account.
33. It may be recalled that, almost inevitably, administrative decision-makers operate without reference to the rules of evidence. Again, almost inevitably, they will be required to consider and, where appropriate, exclude from influence prejudicial material which may be destructive of the credit or credibility of an applicant. Access to such material cannot vitiate a decision. Thus, in Kioa v West  HCA 81; 159 CLR 550, the delegate of the Minister responsible for determining whether Mr Kioa could remain in Australia or should leave, had before him a submission which referred to Mr Kioa’s “active involvement with other persons who are seeking to circumvent Australia’s migration laws”. The manner in which administrative law deals with such difficulties is to require that such prejudicial material be disclosed to the person affected so that he or she may have an appropriate opportunity to address it: Kioa at 587 (Mason J); 602-603 (Wilson J); 629 (Brennan J), and 633 (Deane J).
21 By parity of reasoning with para 33 it was argued that it is easier to draw an inference of apprehended bias where prejudicial material is not disclosed to a person. The “prejudicial material” was said to be contained at para 72 of the statement of reasons.
22 The Minister said at para 72 of the statement of reasons:
I note that Victoria Police advise [the applicant] is believed to be prominent in [redacted] based on the following information:
- Approximately 20 of [the applicant’s] recorded associates are known [redacted] members;
- Several entries on social media (Facebook, etc.) indicate [the applicant] is an [redacted] member and heavily associated with other [redacted] members;
- Numerous persons have stated to police that [the applicant] is an [redacted] member/leader;
- Information received from Prison Intel is that [the applicant] is an [redacted] member.
23 There are two responses. First, it is incorrect that the police information was not put to the applicant. In a letter to the applicant dated 16 February 2017, before the cancellation decision was made, it was put to the applicant that the Department had received and may take into account information received from Victoria Police, including the intelligence received from “Prison Intel” that the applicant was a member of [redacted].
24 Secondly, O’Sullivan is not on point as that case was concerned with the impartiality of a Tribunal in the performance of its decision-making process and there is a distinction to be drawn between judicial (or quasi) decision-making and the role of a Minister when called upon to make administrative decisions. As Gleeson CJ and Gummow J explained in Jia Legeng at :
There are … consequences that flow from the circumstances that a power is vested in, and exercised by, a Minister … [T]hey include the consideration that the conduct of a Minister may need to be evaluated in the light of his or her political role, responsibility and accountability.
Their Honours stated that decision-makers “sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publically expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”. At  their Honours stated that it would be wrong to apply to the Minister’s conduct the standards of detachment which apply to judicial officers or jurors, and that “there is no reason to conclude that the legislator intended to impose such standards upon the Minister, and every reason to conclude otherwise”. At , their Honours held that while the Minister was obliged to give genuine consideration to the issues raised by ss 501 and 502 and bring to bear on those issues a mind open to persuasion, the Minister was not additionally required to avoid conducting himself in such a way as would expose a judge to the charge of apprehended bias.
25 A statement by a Minister as to how he or she proposes to administer the Act in certain classes of case does not demonstrate an apprehension of bias. The Minister was entitled “legitimately [to] form and hold views before coming to consider the exercise of a power in a particular case”: Jia Legeng at  (Hayne J). He could speak freely about government policy and state his views, and was not required to avoid conducting himself in a way that might expose a judge to a charge of apprehended bias: Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 171;  FCA 654 (Farrell J) at  and  (“Zaburoni at first instance”). In Jia Legeng at , Gleeson CJ and Gummow J said that the state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. This applies also for apprehended bias in a matter whether or not the possibility of pre-judgment is in issue: Cabcharge Australia Ltd v Australian Competition and Consumer Commission  FCAFC 111 at –.
26 In Isbester v Knox City Council (2015) 255 CLR 135;  HCA 20 at , Kiefel, Bell, Keane and Nettle JJ stated:
In Jia Legeng, the context for the Minister's decision was a statute providing a particular power in the exercise of which it was necessary to consider the national interest. The decision had a political quality and rendered the Minister subject to a particular kind of accountability unlike that to which a judge would be subjected. It was observed that a person in the position of the Minister may not be as constrained in the wide range of factors to be taken into account and in receiving opinions from a number of sources. It would be artificial, in a decision-making process of this kind, to require the Minister to exercise his power so as to avoid acting in a way that would, in the case of a judge, create the appearance of bias. The same level of evident neutrality as applies to a judge could not be required of a person in the Minister's position.
It is permissible for the Minister to form a view about the types of conduct that will demonstrate that a person is not of good character. Further it is permissible for the Minister to form an opinion and publicly state an opinion about what conduct will engage the character test in a way that leaves little room for debate about the application of that section in a particular case. Such comments are permissible because the Minister is not required to determine wholly anew whether conduct is inconsistent with the holding of good character each time that he is required to make a decision under s 501CA(4): Jia Legeng at  (Hayne J).
27 The question is whether a fair-minded observer informed of the discretion the Minister is called upon to exercise personally under s 501(2) might form the view based on what the Minister said in the interview that he might be so committed to a conclusion as to the exercise of his discretion in the applicant’s case that his mind would not be open to persuasion by evidence and arguments submitted by or on the applicant’s behalf: Zaburoni at first instance at ; Zaburoni FFC at . I accept the applicant’s submission that the Minister’s comments were made before the decision and that there is little room for doubt that the comments concerned the applicant, among others. However, it is important to distinguish the conditional tense used by the Minister from the language of the interviewer. First, despite the interviewer’s use of the mandatory “will”, the Minister expressed his intention to cancel the relevant visas as contingent on “if” the holders, including the applicant, were doing the wrong thing. Second, even if, as seems likely, the Minister had formed the view that the applicant had done the “wrong thing”, the Minister used the permissive “can” to explain his consequent power to cancel the visa. Contrary to the applicant’s submission, that statement indicated his view that the cancellation was one of a range of options available to him rather than an inevitable result. On a fair reading of the Minister’s comments, in my view he did not express an unalterable commitment to a conclusion. As the authorities recognise, the Minister was entitled to foreshadow a likelihood of an outcome in a way that made clear it would be difficult for the applicant to persuade the Minister not to cancel his visa: Zaburoni at first instance at . As a result I am not persuaded that the Minister’s comments conveyed apprehended bias as that term applies in the ministerial context and ground 3 must fail.
28 The applicant submitted that the Minister did not have power to make the decision because he was not constitutionally permitted to act as a Minister for the purposes of the Act by reason that, at the time of making the decision, he had a pecuniary interest in an agreement with the public service of the Commonwealth in breach of s 44(v) of the Constitution, and the interaction of s 44(v) with s 64 of the Constitution. The applicant accepted that this Court does not have jurisdiction to decide that question, but it was submitted that if the applicant did not succeed on the other grounds, the application for judicial review on ground 1 should be stayed in order to allow for the eligibility of Mr Dutton to have sat in the Parliament to be considered by the High Court sitting as the Court of Disputed Returns. The applicant relied in support on Alley v Gillespie (2018) 92 ALJR 373;  HCA 11 (“Alley”).
29 The parties were in agreement that the question of whether ground 1 should be stayed only arose for consideration if the applicant was unsuccessful on the other grounds of appeal. Notwithstanding that agreement, as there were lengthy written and oral submissions directed at this ground I set out my reasons why I would not have stayed ground 1 had the applicant otherwise been unsuccessful on his appeal grounds.
30 First, the Minister made the impugned decision as an office holder in the 45th Parliament of Australia which, at the time of hearing, was prorogued with no extant referral of the Minister to the Court of Disputed Returns having been made. Apart from the question as to whether a member of a previous parliament can be referred to the Court of Disputed Returns, as to which there has not been judicial consideration, it is not appropriate to grant a potentially indefinite stay on the basis of a purely hypothetical sequence of events.
31 Secondly, the High Court’s decision to stay the case before it in Alley was informed by the statutory context in which the question arose, namely the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth), and the nature of the relief sought. As counsel for the respondent has correctly identified, the monetary penalty to which the defendant in Alley was potentially liable was to be determined cumulatively from the date upon which the action was brought, with the result that a dismissal of the proceeding would have altered the quantum of any penalty ultimately imposed. That consideration has no relevance to the present case.
32 Thirdly, a fundamental difficulty with the applicant’s argument is that the relief sought is as against the Minister in his ministerial capacity, rather than as against the Minister personally. Even if a referral of the Minister to the Court of Disputed Returns resulted in the removal of the Minister from Parliament, it is far from clear that the Minister’s impugned decision would be invalidated insofar as the decision was made in the apparent execution of his office: see Cassell v The Queen (2000) 201 CLR 189;  HCA 8 at  (Gleeson CJ, Gaudron, McHugh and Gummow JJ). As a result I am not prepared to find that a stay of the proceeding would be of any practical utility to the applicant, contra the position in Alley.
33 As the applicant has succeeded on grounds 2 and 4, the matter should be remitted to the Minister for determination in accordance with the law.
Dated: 14 August 2019