FEDERAL COURT OF AUSTRALIA

DYY18 v Minister for Home Affairs [2019] FCA 1901

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be granted.

2.    The decision of the respondent made on 27 June 2018 not to revoke a visa cancellation decision originally made under s 501(3A) of the Migration Act 1958 (Cth) be set aside.

3.    The respondent pay the applicant’s costs of the proceeding as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The applicant’s family hails from South Sudan. In 1997, he was born in a refugee camp in the Federal Democratic Republic of Ethiopia. He arrived in Australia in 2006 and was granted a Class XB Subclass 200 Refugee and Humanitarian (Refugee) visa (the “visa”). On 20 January 2017, that visa was cancelled by a delegate of the respondent (the “Minister”) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”) (the “cancellation decision”). The applicant was then invited to make representations about the possible revocation of that decision pursuant to s 501CA(3) of the Act. Following receipt of these, on 27 June 2018 the Minister decided, pursuant to s 501CA(4) of the Act, that there was not “another reason” why the cancellation decision should be revoked (the “non-revocation decision”).

2    The applicant seeks judicial review of the non-revocation decision. That application needed to be commenced within 35 days of the date of that decision: s 477A of the Act. It was not; it was eight days late. The Minister did not oppose the grant of an extension of time. I granted that extension at the commencement of the hearing.

3    The applicant initially relied upon five grounds of review expressed in a draft amended notice of appeal. At the hearing, his Counsel stated that he no longer relied upon the fourth ground. I shall return to consider those grounds.

Legislative Provision

4    Section 501CA of the Act relevantly provides:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

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

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

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

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

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

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

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

 (4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

  (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

...

Background

5    The applicant’s criminal conduct in Australia between 2015 and 2016 was affronting. It left victims who, I have no doubt, remain deeply traumatised by his actions.

6    His first victims included a 13 year old girl. In 2015, the applicant, then aged 18 years, travelled to Cranbourne station in Melbourne together with some other co-offenders who were 15 or 16 years of age. They followed a group of children and then surrounded two younger boys. One of these boys was punched in the jaw by a co-offender; another co-offender demanded that the boys hand over their phone and wallets. Some 13 year old girls tried to assist the boys. The co-offenders sexually assaulted one of these girls. The applicant intervened, as if to protect the girl. He ushered her away. After squeezing her bottom he produced his erect penis; he grabbed her hand and made her masturbate him. He encouraged her to do so with the promise of the return of the stolen phones. For these offences (two counts of an indecent act with a child under the age of sixteen), described by the sentencing judge as “appalling, predatory and sinister”, the applicant was sentenced to four and eight months of imprisonment. He was also found guilty of two counts of robbery. He was sentenced to two months’ imprisonment on each count.

7    His second victims were a family living in East Brighton, a suburb of Melbourne. In the middle of the night, the father of this family was awoken by loud bangs. He came upon three African males in his house. A fight broke out. The males then left the house and were joined by the applicant. The intruders started throwing rocks at the father. The applicant may also have done this. The father then saw one of the intruders driving his BMW motor vehicle down the driveway. He tried to open the car door but was dragged along as the car sped off. He suffered injuries. Following the execution of a search warrant at the applicant’s home, four iPhones, one iMac and one Toshiba laptop were recovered. Each of these items had been traced to their owners. The applicant said he had been given these by one of the intruders.

8    The applicant was charged on the basis that he had been complicit, or had acted in concert, with the intruders. The sentencing judge described the offences with which the applicant had been charged as “of the most serious kind” and “deserving of a stern sentence”. Consequently, the applicant was given a total sentence of two years and eight months to be served in a Youth Justice Centre having been found guilty of aggravated burglary, recklessly causing injury, theft, handling, receiving and disposing of stolen goods, and the commission of an indictable offence whilst on bail.

9    The sentencing judge observed that the East Brighton family no longer felt safe in their own home. Their lives had changed forever. The judge also said that the applicant’s conduct “must be denounced in the most serious way, and the community must be protected from people like [him] who engage in this kind of offending”.

The Minister’s Decision

10    It is not necessary to summarise the Minister’s decision in detail. The salient parts of those reasons are addressed when considering the grounds of review.

11    The Minister’s decision records the factors relied upon by the applicant in support of revocation of the cancellation decision. They were described as follows:

•    His difficult upbringing. [The applicant] was born in a refugee camp in Ethiopia after his family fled South Sudan as a result of civil war in that country. [The applicant] advised that he saw and experience things that no child should ever experience.

•    That South Sudan is war torn country that is marred by ethnic violence and political unrest, and that there is real risk that he may be killed or otherwise harmed if returned.

•    Best interest of his minor siblings, [redacted], [redacted], and his nieces/nephews.

•    The absence of any family support in South Sudan as all his immediate family members are in Australia.

•    His unfamiliarity with South Sudan as he has never lived there.

•    His youth and had no direction or role models at the time of his offending. [The applicant] was influenced by antisocial peers who introduced him to a life of crime.

•    His remorse for his criminal offending.

•    He has changed and is rehabilitated.

•    Has the support from his family, the South Sudanese community and other youth support services.

(Errors in original.)

12    After considering: the best interests of the applicant’s minor siblings; the expectations of the Australian community; applicable international non-refoulement obligations; the submission made on the applicant’s behalf that he is “de facto stateless”; the strength, nature and duration of his ties to Australia; the extent of the impediments he would face if deported; and the risk to the Australian community, the Minister concluded that there was not “another reason” that the cancellation decision should be revoked.

13    In essence, whilst giving primary consideration to the best interests of the applicant’s minor siblings, “significant weight” was placed upon the very serious crimes committed, one of which was of a sexual nature and which had been perpetrated on a minor, and upon a finding that the community could be exposed to great harm should the applicant re-offend in a similar fashion. The possibility that the applicant might do so could not be ruled out, although the Minister did note that a sentencing judge had observed in 2017 that the applicant’s prospects of rehabilitation were “good” and he accepted that the applicant had made some progress in addressing his offending behaviour, although this had yet to be tested in the community. The Minister concluded as follows:

In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor siblings … and other minor family members, as a primary consideration, and any other considerations as described above. These include his claims that he will suffer hardship if returned to South Sudan, international non-refoulement obligations, familial ties to Australia, and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.

Grounds of Review

14    The grounds of review were as follows:

1.    The Minister failed to consider a legal consequence of non-revocation would be that the Applicant would be indefinitely detained, arising from the Minister’s acceptance that the Applicant is ‘de facto stateless’.

2.    The Minister failed to consider the Applicant’s representations as to international non-refoulement obligations as a reason why his visa cancellation should be revoked.

Particulars

1.    The Minister relied on ‘Direction 75’ to conclude that it was ‘unnecessary to determine whether non-refoulement obligations are owed’ to the Applicant, because a delegate would do so if there is a subsequent application for a protection visa.

2.    There was no evidence before the Minister that the Applicant would ever make an application for such a visa.

3.    Further, at law, Direction 75 does not mean that a delegate would be obliged [to] consider the Applicant’s submissions made in this matter about international non-refoulement obligations, assuming that there was an application for a protection visa.

3.    The Minister failed to understand the law, or apply the law correctly, in determining the seriousness of the Applicant’s past offending.

Particulars

1.    At law, sentencing is required to reflect the seriousness of the offending.

2.    The Minister’s reasoning that the lower sentences imposed on the Applicant for his offending by the courts ‘does not change the nature or serious (sic) of the offending’ demonstrates a failure to understand the law or to apply it correctly.

…

5.    The Minister’s decision was affected by apprehended bias.

Particulars

A fair-minded lay observer might reasonably apprehend that the Minister might not have brought an impartial mind as a result of matters including one or more of:

   1.    the Minister’s public comments about ‘African gangs’;

2.    the prejudicial and false nature of the comments made by officers of the Department that the Applicant had ‘APEX links’ when he never was;

3.    the Minister personally deciding the Applicant’s matter instead of a delegate, in the above circumstances and in circumstances where there is a detailed policy published about the exercise of the revocation power but not as to how matters would be determined by the Minister personally as opposed to a delegate.

Ground One

15    The applicant submitted that he was “stateless”. As such he could not be removed from Australia pursuant to s 189 of the Act but could only be detained as an “unlawful non-citizen”. Unless a country could be found for the applicant to which he has a right of entry, “at least for the foreseeable future”, the legal consequence he submitted would be indefinite detention. That legal consequence, it was said, was not considered by the Minister (inferentially because it was not referred to in the reasons for decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323). It follows, according to the applicant, that there was a failure to consider a legal consequence of the Minister’s decision which constitutes jurisdictional error.

16    The applicant relied upon the decisions of the Full Court of this Court in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 and Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146.

17    NBMZ concerned a decision made by the Minister to refuse a visa application pursuant to s 501 of the Act. The Court found that the Minister had erred in failing to consider the legal consequences of his decision. The appellant in that case could not be removed from Australia because there was no country that would take him. The Minister did not consider that, as a consequence, the appellant faced indefinite detention. Allsop CJ and Katzmann J said at 4-5 [9]:

The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

18    Their Honours decided that because the legal consequence of indefinite detention had not been referred to in the briefing note to the Minister or in the Minister’s reasons, it followed that it had not been considered. At 6 [16]-[17], Allsop CJ and Katzmann J said:

What was entirely absent from the briefing note, however, and also from the Minister’s reasons was any attempt to confront the binary relational legal consequence of Australia’s obligation under Art 33 and Australia’s policy of mandatory detention: indefinite detention. It may be accepted, at one level of abstraction, that the Minister was aware of ss 189, 196 and 198 of the Act and of the High Court’s decision in Al-Kateb. That, however, is not the point. A material omission from a briefing paper may affect the decision-making process based on it: Peko-Wallsend Ltd [(1986) 162 CLR 24] at 30-31, 45 and 65-66. Also, the written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [37], [69], [89] and [133].

Here, it is to be inferred from his statement of reasons that the Minister did not consider or take into account the fact that, if the visa were refused, the applicant would face the prospect of indefinite detention. This was the effect of Australia’s obligation of non-refoulement and ss 189, 196 and 198 of the Act. For the reasons given above and for the reasons given by Buchanan J this matter could not lawfully be overlooked.

19    Subsequently in Taulahi, the Full Court described the effect of NBMZ in the following terms at 168 [84]:

The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision. There is no difference in this regard between an exercise of power under s 501(1) of the Migration Act and an exercise of power under s 501(2) or s 501(3): see also AZAFQ v Minister for Immigration and Border Protection (2015) 147 ALD 121 at [11], in which White J applied NBMZ to s 501(2). Furthermore, at a functional level, the human consequences of a decision under each of these three provisions may be equally grave. The difference between them is that the possibility that the Minister may act without regard to a decision’s human implications is more likely under s 501(3) than under s 501(1) and (2), because of the absence of a procedural fairness requirement with respect to decisions under s 501(3) (see s 501(5)), with the result that the Minister may lawfully make a decision under s 501(3) without the benefit of any information the visa holder might contribute. It follows that, in making a decision under s 501(3), the Minister is obliged to take into account the direct and immediate statutory consequences of the decision. These consequences include those set out in s 501C, which in terms applies “if the Minister makes a decision under subsection 501(3) ... to ... cancel a visa”.

(Emphasis added.)

20    The Court also explained that the NBMZ principle was not to be confined to non-obvious legal consequences. It required the Minister to consider even obvious legal consequences. At 168-169 [86], the Court said:

The Minister also submitted that it would be contrary to the ratio of Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom) to extend the reasoning in NBMZ so as to require the Minister to take into account the obvious legal consequences of a decision. The Minister referred to the High Court’s rejection in that case of the contention that the Minister, in cancelling a transitional (permanent) visa under s 501(2), had erred in failing to have regard to the fact that, by virtue of s 501F(3), the applicant’s absorbed person visa was also cancelled: Nystrom at [40] (Gummow and Hayne JJ) and [129] (Heydon and Crennan JJ). This submission is also rejected. The issue in Nystrom was materially different from that before this Court, because the statutory provisions left “no room for discretion in the matter”: Nystrom at [40] (Gummow and Hayne JJ). In this case, any visa cancellation decision under s 501 involved an exercise of discretion at some level. Further, the issue was not, as the Minister submitted, “whether or not to exercise the discretionary power to cancel a visa” since both s 501(2) and s 501(3) conferred discretionary power to this end. Rather, as explained below, the issue was the failure to take into account the statutory framework in which the decision was made, including the statutory consequences of that decision. Had the proper operation of s 501C been considered, then the Minister might have chosen to proceed under s 501(2) rather than s 501(3): see [94] below. Having regard to this statutory framework, Nystrom does not preclude the application here of the principle in NBMZ.

21    With great respect to Counsel for the applicant, Mr Guo, his reliance upon NBMZ is misconceived. That case turned upon an acceptance that the appellant in question was stateless. A necessary legal consequence of that state of affairs was indefinite detention. Here, in contrast, it had not been established that the applicant is in fact stateless. The onus was on the applicant to establish this. As the Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ recently said in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [38]:

As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded …

(Footnote omitted.)

22    The Minister noted the submission made by the applicant’s agent that he was “de facto stateless” but considered that this was only a “possibility”. Later, he adverted to the applicant’s entitlements to medical or other services “should [he] return to South Sudan as a citizen”. It was not suggested, in that respect, that the Minister erred in law in declining to make a positive finding that the applicant was “stateless” as distinct from being only possibly stateless. In my view, neither NBMZ nor Taulahi stand for the proposition that the Minister must have regard to every conceivable legal consequence flowing from all possible factual outcomes. That proposition is too broad. Rather, in making a decision under s 501CA(4), the Minister must take into account those legal consequences which will actually flow from his decision.

23    Consistently with this conclusion, in his submissions, the Minister referred to the statement of principle at 168 [84] of Taulahi, supra, that the Minister is only “obliged to take into account the direct and immediate statutory consequences of the decision”. Because there had been no finding that the applicant was stateless, it followed that the possibility of indefinite detention was not a “direct and immediate” consequence of the decision. Rather, it was only one potential outcome. In the Minister’s submission, other possible outcomes existed. For example, it was open to the applicant to apply for a protection visa. The Minister expressly referred to this possibility when considering the non-refoulement obligations. It was also possible that the applicant was not stateless.

24    The decision of the Full Court in Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 was not cited by either party. On one view, it potentially broadens the category of legal consequences which must be considered in exercising the power conferred by s 501CA(4). In that case, Mr Cotterill’s visa had been cancelled pursuant to s 501(2) of the Act on the ground that he did not pass the character test. It had been submitted to the Minister that Mr Cotterill faced the possibility of indefinite detention due to a number of medical conditions he suffered. That possibility had not been considered by the Minister in his reasons for decision. The failure to consider the presence of a “real possibility” of indefinite detention was sufficient to vitiate the Minister’s decision. Kenny and Perry JJ said at 52-53 [133]:

There is also another difference between this case and NBMZ, but again it does not alter the Minister’s obligation to take into account that indefinite detention is in prospect as a legal consequence of his proposed decision. This difference lies in the fact that in NBMZ it was virtually certain on the facts of that case that, if the Minister refused to grant a visa under s 501(1), it would not be reasonably practicable to remove the visa applicant from Australia in the immediate future and that, by operation of the Act, he would be kept in detention for an indefinite time. In the present case, the material before the Minister did not show that it was virtually certain that it would not be reasonably practicable to remove the appellant if his visa were cancelled. Rather, this material indicated that there was a real possibility that the appellant’s removal would not be reasonably practicable on account of his ill-health and that, if this were the case, the appellant would face indefinite detention (by operation of ss 189, 196 and 198). Again, this difference did not affect the Minister’s obligation to take into account the legal consequences of his proposed decision (although it might affect his decision-making in other ways). The Minister was obliged in this case as in NBMZ to take into account that the material before him disclosed that the appellant’s indefinite detention was in prospect if he cancelled the appellant’s visa, as a consequence of ss 189, 196 and 198 of the Migration Act.

The facts before me do not clearly establish whether statelessness was only a mere possibility as against a “real” possibility. The reasons merely suggest that it was a “possibility”.

25    In any event, Counsel for the Minister, Ms Symons, submitted in oral argument that I should not infer, in contrast to cases such as NBMZ and Taulahi, that the Minister’s failure to refer to the possibility of indefinite detention in his reasons justified an inference that this legal consequence had not been considered. It was said that one can infer that the Minister did (and does) have knowledge about the way in which the Act operates, as evidenced by [27]-[30] of the reasons where the Minister explicitly acknowledged the potential for the applicant to apply for a protection visa in the future. On balance, I accept that submission. In that respect, for example, I note that the Minister, acting pursuant to s 499 of the Act, issued Direction No. 65 entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”. That Direction expressly contemplates the possibility of indefinite detention flowing from an inability to deport a person. Paragraph 12.1(6) of Direction No. 65, for the purpose of considering Australia’s non-refoulement obligations, states the following:

Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

26    Whether I should infer that the Minister did not consider the applicable legal consequences of his decision is a question of fact. The inference may be supported by a consideration of the content of the submissions put to the Minister, and from the reasons for decision. In some cases, as well illustrated by NBMZ, Taulahi and Cotterill, the failure to address in any way a legal consequence will support the drawing of an inference that it was not considered at all. But here, on the particular facts of this case, the inference should not be drawn that the Minister was not aware that a legal consequence of possible statelessness was indefinite detention. In my view, the Minister can be taken to appreciate the contents of directions issued by him (and his predecessors) which have a bearing on his decision. Here, Direction No. 65 plainly describes the legal consequence if an applicant is not able to be deported. It follows that I am not satisfied that the Minister did not correctly understand that if the applicant here was in fact stateless, he would face indefinite detention.

27    Ground one is therefore rejected.

Ground Two

28    Ground two raised for consideration the decision of Mortimer J in Omar v Minister for Home Affairs [2019] FCA 279. To explain that decision, one must first consider BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456. In that case, Bromberg and Mortimer JJ decided that the Minister’s exercise of power pursuant to s 501CA(4) of the Act involved a material misunderstanding of the law which constituted jurisdictional error. The misunderstanding was the belief that non-refoulement claims would necessarily be dealt with in the processing of a future protection visa application that might be made by the appellant in that case. That understanding was mistaken. Such a visa might be refused for other reasons before the consideration of any non-refoulement claims.

29    Following BCR16, the Minister issued Direction No. 75 pursuant to s 499 of the Act. In general terms, that Direction, which does not bind the Minister, requires decision-makers to consider refugee and complementary protection claims first when considering an application for a protection visa. A series of decisions concerning the legal effectiveness of this Direction were surveyed recently by Anderson J in GBV18 v Minister for Home Affairs [2019] FCA 1132. His Honour found that numerous decisions of this Court confirmed that the Minister could lawfully defer a consideration of non-refoulement obligations when exercising his power pursuant to s 501CA(4), by reason of Direction No. 75. His Honour said at [67]:

Debate has developed as to the applicability of BCR16 since the issuing of Direction No. 75 on 5 September 2017. As noted above at [51]-[53], the first direction in Direction No. 75 directs that, where a protection visa application raises character or security concerns, a delegate of the Minister assessing that application must first assess the criteria for a protection visa under ss 36(2)(a) and 36(2)(aa) of the Act prior to considering any character or security concerns. A number of decisions of this Court collectively support the position that, as a result of the issuing [of] Direction No. 75, a decision-maker under s 501CA(4) does not commit the first misunderstanding in BCR16 if he or she states that it is not necessary for him or her to consider Australia’s non-refoulement obligations (thereby, in practice, deferring the consideration of such obligations until the determination of any protection visa application): [Ali v Minister for Immigration and Border Protection [2018] FCA 650] at [33]-[34] per Flick J; [Greene v Assistant Minister For Home Affairs [2018] FCA 919] at [19] per Logan J; [Turay v Assistant Minister for Home Affairs [2018] FCA 1487] at [51] per Farrell J; [DOB18 v Minister for Home Affairs [2018] FCA 1523] at [23] per Griffiths J; [BKS18 v Minister for Home Affairs [2018] FCA 1731] at [112]-[118] per Barker J; [Sowa v Minister for Home Affairs [2018] FCA 1999] at [27] per Griffiths J; [Ezegbe v Minister For Immigration and Border Protection [2019] FCA 216] at [24] per Perram J; [DOB18 v Minister for Home Affairs [2019] FCAFC 63] at [59]-[67] per Logan J and [164]-[173] per Robertson J; [Ibrahim v Minister for Home Affairs [2019] FCAFC 89] at [71]-[86] per White, Perry and Charlesworth JJ. Similarly, although Direction No. 75 was apparently not raised by the parties in Flores v Minister for Home Affairs [2019] FCA 1043, Yates J expressed at [50] that when claims regarding Australia’s non-refoulement obligations are made, “it is not necessary for the decision maker to determine whether non-refoulement obligations are owed when determining whether the cancellation should be revoked”.

30    Here, the Minister deferred a consideration of the applicant’s non-refoulement claims in reliance on Direction No. 75. It is important to set out the Minister’s reasons. They are as follows:

27.    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) requiring 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 referral of the application for consideration under s 501.

28.    I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.

29.    In those circumstances, I consider it 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 the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

30.    I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers [the applicant’s] Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the applicant]. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.

31    In Omar, Mortimer J declined to follow the authorities referred to by Anderson J (ending at Ezegbe as the decisions cited thereafter post-dated Omar). Her Honour reasoned as follows at [81]-[82]:

Where a representation is made pursuant to an invitation under s 501CA(3)(b), it is a failure to perform the statutory task then required by s 501CA(4) for the Assistant Minister to decline to determine factual matters raised by the representations by reference to a different statutory process, which is non-existent at the time of the exercise of power, whose invocation is entirely speculative, and during which process the engagement of Australia’s non-refoulement obligations is not a criterion for the grant of a visa.

The question before the Assistant Minister is whether or not to revoke the cancellation of a particular visa: a previously existing visa, which entitled the person to remain in the Australian community, on a particular basis, with the particular status and benefits that accompany that visa. Thus, the question for the Assistant Minister was whether to restore that particular visa to the applicant. In determining whether or not to exercise that power, if the person makes representations that she or he is a person to whom Australia has non-refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.

32    Before me, the applicant submitted that I should follow Omar in preference to other decisions of this Court. That was essentially for four reasons. First, the applicant had made non-refoulement claims. In that respect, the criteria for the grant of a protection visa are narrower than any international non-refoulement obligation that might constitute “another reason” for revocation of a cancellation decision pursuant to s 501CA. It followed that these types of claims could not be considered in an application of s 36(2)(a) or (aa). Secondly, and for the foregoing reason, it was factually wrong for the Minister to contend that “non-refoulement obligations would be considered in the course of processing” a protection visa application. Thirdly, a successful protection visa application (assuming one were to be made) could only confer upon the applicant a temporary visa whereas his cancelled visa was permanent. Fourthly, there was no evidence before the Minister that the applicant would ever have the opportunity to apply for a protection visa.

33    Before considering Omar, I wish to make two observations about the applicant’s first reason set out above.

34    First, it was said that the applicant made submissions about international non-refoulement obligations. I have reviewed these. The risks of harm they identify are adequately addressed by the criteria for the grant of a protection visa under the Act. No separate or distinct claim was made under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, signed 31 January 1967, 606 UNTS 267 (entered into force for Australia 13 December 1973) (the “Convention”). It was not suggested, for example, that the applicant had a claim under the Convention that was not covered by s 36(2)(a) or (aa) of the Act.

35    Secondly, it may be doubted whether the Minister would be lawfully entitled to consider a non-refoulement claim made under the Convention that is not recognised under domestic law as being “another reason” to revoke a cancellation decision. (I leave aside the consideration of other types of reasons.) The Convention does not have the force of domestic law to the extent it has not been incorporated into the text of the Act: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287 per Mason CJ and Deane J; Maloney v The Queen (2013) 252 CLR 168 at 185 [23] per French CJ. In 2014, upon the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), references to the Convention were all but removed from the Act, and replaced with provisions which implement Australia’s interpretation of its Convention obligations. In my view, it is likely that the change effectively codified into domestic law that interpretation. This is explained in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) which states at page 2:

The Bill fundamentally changes Australia’s approach to managing asylum seekers by:

…

•    codifying in the Migration Act Australia’s interpretation of its protection obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention).

36    Accordingly, an applicant who seeks to engage with Australia’s obligations under the Convention does so in accordance with the Act, and nothing else: see generally Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at 131-133 [45]-[49]. That manifest legislative scheme would arguably be defeated if the Minister were required to treat as “another reason” for revocation a non-refoulement claim that can only arise under the Convention, and which does not arise under domestic law.

37    Omar was the subject of consideration by Anderson J in GBV18. His Honour declined to follow Omar which was considered to be an “outlier” on the “jurisprudential spectrum” (at [81]). His Honour said at [73]:

However, notwithstanding these reservations, the clear weight of authority relevant to the review of administrative decisions made after the issuing of Direction No. 75 favour the conclusion that the first direction under Direction No. 75, combined with sufficiently clear and unequivocal reassurances regarding the practices of relevant decision-makers not covered by Direction No. 75, is sufficient to overcome the possibility of jurisdictional error based on the “first misunderstanding” identified in BCR16.

38    Omar has since been considered on appeal by the Full Court of this Court: Minister for Home Affairs v Omar [2019] FCAFC 188. The Court (which was comprised by Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) identified the issues before it as follows:

(a)    Did the primary judge err in finding that the Assistant Minister fell into jurisdictional error in making his decision under s 501CA(4) by deferring consideration of any non-refoulement obligations to a future protection visa application by the respondent?

(b)    Are non-refoulement obligations mandatory relevant considerations under s 501CA?

(c)    Is the decision of the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [106]-[116] plainly wrong, as contended by the Minister? In light of this contention, the Chief Justice directed that the appeal be heard by five Judges.

(d)    Does Direction No 75 reverse the effect of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456?

(e)    Did the primary judge err, as contended by the respondent, in not holding that the Assistant Minister had made a jurisdictional error by failing to consider the matters (including factual matters) raised by the respondent in his representations made under s 501CA(3) as being a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations.

39    The Court did not need to consider whether Mortimer J’s conclusions in relation to Direction No. 75 were correct because it confined itself to a consideration of only the last issue. It said at [5]:

As will shortly emerge, we consider that issue (e) should be determined in the respondent’s favour, consequently the other issues need not be determined, including the challenge to the correctness of Ibrahim. Also, although issue (a) need not be determined separately from issue (e), there is some overlap between the two issues inasmuch as there are some factual matters which underpin both issues.

40    No equivalent to “issue (e)” was raised before me.

41    I respectfully agree with Anderson J’s conclusion concerning the “weight of authority” on the effectiveness of Direction No. 75. In my view, as a trial judge, I should follow Anderson J, and the authorities cited by his Honour. However, that is not the end of the matter.

42    In DOB18 v Minister for Home Affairs [2019] FCAFC 63, the Full Court of this Court considered a similar ground of review in relation to an exercise of power by a Minister conferred by s 501BA of the Act. The consideration of non-refoulement obligations had been deferred because of the presence of Direction No. 75. Robertson J decided that what mattered in that case was that the Minister had in fact considered the claim made about the risk of harm. It was otherwise lawful for him to defer a consideration as to whether that risk of harm engaged Australia’s non-refoulement obligations. At [183], Robertson J said:

In my opinion, the appropriate analysis in the present case involves an appreciation that the Minister did not say, at [80]-[81], that he was refusing to take into account in the exercise of the power under s 501BA(2) that the appellant claimed he would face harm. Indeed, at [82], the Minister said that he accepted that regardless of whether the appellant’s claims were such as to engage non-refoulement obligations, the appellant would face hardship arising from his stated homosexuality were he to return to Bangladesh. This was in the context where, at [75]-[78], the Minister had noted the appellant’s earlier submission that he would face harm if returned to Bangladesh and the Minister had noted the appellant’s visa history, including the grant of a Class XA subclass 785 Temporary Protection visa on 16 November 2006 due to his stated homosexuality. The Minister also noted that the appellant had said that his life would be in “very real danger” if he returned to Bangladesh. This was the harm and hardship which the Minister addressed at [82].

43    If the Minister had not considered the claim for harm, Robertson J was of the view that he may well have erred at law. At [184], his Honour said:

If the Minister had not addressed that matter, my view would have been that the Minister may well have failed to complete his statutory task and thereby made a jurisdictional error of a similar, although not identical, kind to that considered in BCR16.

44    The finding about hardship made by the Minister in DOB18 was in the following terms (as redacted):

I have also considered [the appellant’s] claims of harm upon return to [redacted] outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the appellant’s] claims are such as to engage non-refoulement obligations, he would face hardship arising from his stated homosexuality were he to return to [redacted].

45    The foregoing analysis turned upon the acceptance of a distinction between a claim about the risk of harm, and the characterisation of those claims as engaging Australia’s non-refoulement obligations. As Robertson J said at [185]-[186]:

... In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand.

In my opinion this distinction is not accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found by the Minister in the present case need not be considered in making a decision under s 501BA(2).

46    Before me, Ms Symons submitted that what Robertson J said at [184] did not form part of the ratio of the decision. However, the Full Court in Omar (a case concerning s 501CA) expressly approved of what his Honour had said at [185]-[186] (at [34(f)]). It was seen to be a correct reflection of the need for the Minister to address the representations made to him, viewed as a whole. In the sub-paragraph preceding [34(f)], their Honours thus said at [34(e)]:

The representations made on behalf of the respondent in response to the invitation under s 501CA(3) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described (see Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56] per Robertson J; Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523 at [139] per Robertson, Moshinsky and Bromwich JJ; Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 561 at [70]- [72] per Colvin J and Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 at [41] per Besanko, Barker and Bromwich JJ).

47    In the circumstances, and with respect to Ms Symons, I consider myself bound by the reasoning of Robertson J set out above. It is my duty to apply it here.

48    In material that was before Minister, it was expressly claimed that if the applicant were to be returned to South Sudan he would be subject to risk of serious harm or possibly death. That submission was in the following terms:

Treatment of Returnees

The treatment of returnees to South Sudan is of serious concern and would place [the applicant] at risk of significant harm if he were to return. IRIN reported in 2013 that:

Tensions have arisen over access to the area’s scant basic services and land, and are particularly acute between new returnees and those who have been back home a little longer, or those who never left.

“A returnee is like a visitor who cannot get access,” said Mogga.

In Aru and the surrounding communities, returnees lack basic services such as medical care, education and even clean water from the community borehole. While there has been no open fighting, new returnees have simply had to do without, he said.

Through the International Rescue Committee (IRC) CPC project, Mogga has been lobbying the local government to improve the returnees’ situation - so far without success.

The returnees “are ... depending on their own efforts,” he said.

According to IRC's South Sudan country director Wendy Taeuber, the situation in Aru is not unique. Resentment over resources between the host communities and returnees, she said, can be a “big source of conflict.”

…

Since the CPA was signed, at least 2.5 million people have returned to what is now South Sudan, according to the International Organization for Migration (IOM). But they have returned to poor or non-existent services and a variety of reintegration challenges.

…

IOM visited 30 counties that have seen high rates of return and asked the new arrivals about access to services. What they found was a strong perception of a lack of the basics, with 87 percent of people unhappy with water services in their new homes, and nearly 70 percent lacking easy access to a health facility.

[The applicant] instructs that he fears that if he is returned to South Sudan, he will suffer serious harm or possibly death due to the volatile situation in the country. Further, [the applicant] has no family in South Sudan, nor any connection with any other person living there. [The applicant] also lacks understanding of local customs and traditions.

We submit that returning [the applicant] to a country where he faces the prospect of persecution and serious harm would be inconsistent with [Australia’s] non-refoulement obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

49    The Minister was aware of this claim. At [12] of his reasons he said that the representations made on behalf of the applicant included that:

… South Sudan is [a] war torn country that is marred by ethnic violence and political unrest, and that there is real risk that he may be killed or otherwise harmed if returned.

50    This claim was, however, then never addressed by the Minister. It was an obviously material claim that should have been considered in accordance with the reasoning of Robertson J in DOB18 and the Full Court in Omar. When the Minister came to consider the applicant’s non-refoulement claims in his reasons, no equivalent paragraph as that set out above at [44] from DOB18 can be found. As Mr Guo submitted, the entire non-refoulement claim was carved out and hived off in full. That included the claim about the risk of harm. It follows that the Minister erred in law in a material way.

51    Ground two is therefore made out.

Ground Three

52    The applicant submitted that the Minister incorrectly applied the law when he said in his reasons that the “length of sentence does not change the nature or serious [sic] of the offending”. This observation, it was said, demonstrated that the Minister did not understand that in Victoria the gravity of an offence should be reflected in the length of the sentence imposed: s 5(2)(c) of the Sentencing Act 1991 (Vic) (the “Sentencing Act”). It was further contended that the Minister had conflated, and thereby misunderstood, the distinction between the seriousness of an offence, as a legal proposition, and the serious of the particular offending here. The sentencing judge here had observed that it was the “offences” with which the applicant had been charged in relation to the event at East Brighton that were serious. In contrast, the Minister decided, that the “offending” was serious. For these reasons, the sentencing judge’s observation could not support the Minister’s characterisation of the applicant’s offending.

53    Ms Symons submitted that the characterisation of the offending here as “serious” did not involve any error of law or misunderstanding about the Sentencing Act. When read in the context of the entire paragraph ([90]), it was said to have been open to the Minister to find that the applicant’s participation in the home invasion, if I may call it that, in East Brighton, constituted serious conduct. In that respect, in the same paragraph the Minister expressly referred to the sentencing judge’s consideration of the applicant’s “youth, remorse, the pre-sentence report [received by the Court] and the information from counsel”.

54    I respectfully do not agree with the applicant’s submission. I do not think that in reaching a conclusion that the applicant’s conduct was serious, the Minister was making a legal conclusion. The observation was not, for example, directed at the requirements of the Sentencing Act. Rather, for the purposes of assessing risk to the Australian community, the Minister was determining the gravity and nature of what the applicant had done. That was a factual matter. His conclusion was plainly one that was open to him to make. It did not involve any impermissible challenge to the facts underpinning the sentence imposed by the County Court judge.

55    I also reject the proposition that the Minister had conflated a characterisation of the sentencing judge’s observations about the nature of the “offences” committed with the nature of the applicant’s offending. That contention rather reads too much into the content of [90]. In my view, no inconsistency arises from the sentencing judge’s conclusion about the serious nature of the offences, and the Minister’s conclusion that the offending was also serious.

56    Ground three is therefore rejected.

Ground Five

57    The applicant finally alleged apprehended bias. This was not only because of something said in the reasons for decision, but also because of certain remarks made by the Minister in public, and upon the fact that the Minister had personally exercised the power reposed in him by s 501CA(4) of the Act. The applicant did not contend that any one of these matters constituted apprehended bias; rather he relied on the cumulative effect of these factors. In that respect, it was submitted that the apprehended bias alleged here fell into two categories, namely bias arising from “conduct, including public statements” and bias arising from “extraneous information”: Webb v The Queen (1994) 181 CLR 41 at 74 per Deane J.

58    The principles of law relating to apprehended bias were not in dispute and need not be repeated: Isbester v Knox City Council (2015) 255 CLR 135 at 146 [21] per Kiefel, Bell, Keane and Nettle JJ, at 155-156 [59]-[60] per Gageler J; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

The Minister’s public comments about “African gangs” in Melbourne

59    The first matter relied upon by the applicant was certain remarks the Minister had made in public about “African gangs” in Melbourne. These remarks were set out in an affidavit affirmed by Mr Honnery, solicitor for the applicant, on 3 April 2019 and were as follows:

a.    on 3 January 2018 in an article entitled ‘Victorians scared to go to restaurants at night because of street gang violence: Peter Dutton’ in the Sydney Morning Herald—

... people are scared to go out to restaurants of a night time because they are followed home by these gangs

and

We just need to call it for what it is. Of course it’s African gang violence.

b.    on 4 January 2018 in an article entitled ‘No proof in the pudding: Dutton grilled over his restaurant fear claims’ in The Age—the article stating:

Mr Dutton repeated his claims that people were “sick of politically correct language” and that a minority of people in the African community in Victoria were creating problems.

c.    on 19 July 2018 in a radio interview with Ray Hadley—

there’s been a 70 per cent spike in the number of complaints to the Human Rights Commissioner in Victoria because I called people involved in home invasions African gang members, even though they’re of African descent and they’re involved in gang activity in Victoria. It’s like some parallel universe going on down there at the moment Ray, where you’re not allowed to refer to these people as in gangs. I mean it’s just fairyland stuff.

d.    on 22 July 2018 in an article entitled ‘Sudanese gangs a ‘major law and order problem’, says Dutton’ in The Age—the article stating:

Mr Turnbull said on July 17 there was “real concern about Sudanese gangs” in Melbourne, repeating Mr Dutton’s claims from January that residents were scared to go out to dinner due to street crime.

His comments drew angry rebukes from Victoria’s African leaders, who accused Mr Turnbull of using the state’s South Sudanese diaspora as a “political football”.

…

e.    on 9 August 2018 in another radio interview with Ray Hadley—

I don’t want my decisions overturned in the way that they are by the AAT at the moment. I don’t think it reflects community standards and you’re right; people come here on conditions, and I’ve been clear about this, if they breach the conditions, they can’t expect to stay. There’s no sense having conditions in the first place – like these African gang members in Melbourne who are running riot. You come here on certain conditions, if you breach the conditions of your visa, then you’re out.

(Footnotes omitted.)

60    In an affidavit affirmed on 5 April 2019, Mr Cunynghame, solicitor for the Minister, responded by pointing out that the Minister had also said the following in public:

(a)    on 1 November 2018 in a radio interview with Ray Hadley –

But again, if people have committed serious criminal offences then we’ve been very clear – the law, we’re just proposing at the moment, in fact, to tighten it further – and that is if you come here as a non-citizen, you are expected to abide by the law. It’s pretty basic and if you don’t, you can expect to have your visa cancelled.

Now, there are certain circumstances where you look at cases, where there might be sick kids or an elderly parent or a partner with a terminal disease, I mean there are ways in which you can look at cases and maybe there’s a different outcome where you don’t cancel a visa or delay the departure. You can have a common sense approach to it...

(b)    on 20 July 2019 in a doorstop interview in Brisbane –

The law is very clear in Australia. That is, if you are not an Australian citizen and you’ve committed an offence which puts you outside the conditions of your visa, or puts you in breach of the Migration Act, you stand to have your visa cancelled and I don’t make any apology for that.

We’ve had a particular focus also on people that have committed sexual offences against Australian children and Australian women and I’m going to continue to cancel those visas and to deport those people because I want to make our society a safer place.

So I discriminate not on somebody’s ethnic background, not on their religion, not on their country of origin, but on the fact that they have conducted themselves against the law and outside of the law and if they’re criminals, then they can expect to have their visas cancelled and I’ve been very clear about that.

(c)    On 18 July 2018 in a radio interview with Triple M ‘The Hot Breakfast’ Melbourne –

Well Ed, you’ve got victims of crime. I mean people who have suffered at the hands of these gang members. And I don’t care about their ethnicity, their racial background and I don’t want the one per cent of a community defining the 99 per cent good people. I want the good stories to be told. And if you can’t accept that there’s a problem, you can’t resolve it and there’s no sense pretending that there aren’t African gangs running around causing pain to victims...

and

I was talking to some Sudanese kids in Longman the other day up in Morayfield playing footy up there, or playing soccer as part of a club, volunteering in the community, they’re working part time and that’s a story of most migrants that come to our country. But if you’ve got young people who are causing trouble, my problem here is that if we don’t call it out then it is going to lead to a more serious outcome.

and

And again, if people are committing crimes, I don’t care what country you’ve come from. I only discriminate on one basis and that is if you’re committing crimes against Australian citizens.

(d)    on 22 February 2017 in a radio interview with Triple M ‘The Hot Breakfast’ Melbourne, the respondent was asked “You’ve just recently deported another alleged member of what we call down here the APEX gangs. What is the Government’s position at the moment on gang members and kicking them out of Australia?” The respondent responded as follows –

Well Eddie, for people that are committing violence, I mean it doesn’t matter whether they’re part of a gang or not, if you come to our country on a visa, you’re coming here as a guest, we expect you to abide by the laws and if you don’t abide by the laws then you can expect to be deported and we’ve done that in a record number of about 2000 people over the course of the last couple of years.

(Footnotes omitted.)

61    The applicant submitted that the Minister’s comments were objectively focussed on ethnicity. The fact that the Minister had a political role was no answer to an apprehension of bias based upon that attribute. In that respect, it was said that it cannot be a “legitimate policy objective to single out people with alleged connections to ‘African gangs’ for treatment because of their ethnicity”. Further, it was submitted that the statements relied upon by the Minister did not have the effect of “balancing his remarks”. This is because a reasonable observer would consider that there was still a possibility that the Minister would not be open-minded.

62    The Minister submitted that the comments he had made were general in nature and did not establish any connection with the applicant’s case. They were made in the context of policing in Victoria and not in the context of the exercise by the Minister of his power in s 501CA(4) of the Act. One of the comments also, it was said, post-dated the Minister’s decision.

The “extraneous and false information” concerning “APEX links”

63    The second matter relied upon by the applicant was the “extraneous and false information” that the applicant had “APEX links”. In that respect, I take judicial notice of the presence in Victoria, in the period of the applicant’s offending, of an alleged gang of young criminals said to be called the “APEX gang”. I return to the affidavit of Mr Honnery. He deposed as follows:

Departmental emails attached to the letter marked Annexure CH-1 indicate the Applicant’s case was brought to the [Minister’s] attention through a media monitoring exercise and claim that the Applicant had ‘APEX links’.

64    Annexure “CH-1” contains a number of what are said to be departmental emails with the names of the recipients and authors redacted (no objection was made about this). The email chain commences with an email which attached certain media articles, one of which described the applicant’s participation in the home invasion at East Brighton. Under the heading “Enquires/Status” it described the applicant, amongst other things, as “Criminality: APEX links”. This ultimately appears to be forwarded to someone in an email which states as follows: “[h]i … [a] referral for you. FYI – Media attention on this case. Thanks.” I do not doubt that the applicant’s case made its way to the Minister’s office by the monitoring of media articles.

65    In response, Mr Cunynghame referred to one of the media articles referenced in the emails referred to by Mr Honnery. The ABC article stated:

At the time, [the applicant] was on bail for charges of aggravated burglary, vehicle theft and dangerous driving.

The court previously heard that a co-offender’s phone contained a photo which showed wads of cash spelling out the name of the Apex gang.

66    Mr Honnery also relied upon the Minister’s use of the expression “gang like” in his reasons to describe the applicant’s offending. He deposed as follows:

The [Minister’s] own reasons for his decision [recorded] at paragraph 96 (page 17 of the Court Book):

I note [the Applicant’s] submission that he has never been involved in gangs and has no connection to the Apex gang.

There is no rejection of that submission [by the Minister] in his reasons. However, at paragraph 97 of his reasons, the [Minister] asserts:

I note [the Applicant’s] offending was committed in groups in a ‘gang’ like fashion.

The applicant submitted that a reasonable observer might apprehend that the Minister took into account the “false” assertion that the applicant was a member of the APEX gang. Whilst the Minister’s reasons did not assert that this was so, there was a reasonable apprehension that the Minister might “subconsciously” have been affected by such prejudicial information, especially given the Minister’s public statements about the threat posed by the APEX gang, as set out above. It was said that the Departmental email which referenced the ABC article, “tarred the Applicant with the same brush as the co-offender”.

67    The Minister submitted that the notation made by a Departmental officer that the applicant had “APEX links” was not made by the Minister. Rather, the Minister had expressly noted the applicant’s submission that he had no such links.

The Minister’s personal exercise of the power

68    The third matter relied upon by the applicant was said to be the circumstances in which his case came to be considered personally by the Minister. It was submitted that there was no persuasive explanation as to why the applicant’s request for revocation had not been dealt with by a delegate of the Minister. Given the Minister’s public statements about alleged gang activity in Melbourne, this factor might lead the reasonable observer to infer that the applicant’s s 501CA(3) request had been especially called in by a Minister who might not bring an impartial mind to the exercise of his power as conferred upon him by s 501CA(4).

69    The applicant noted that the Minister had voluntarily discovered an “allocations matrix” which was said to disclose the methodology by which cases were allocated within the Department. But this, it was said, raised more questions than it answered. In my view, it did not identify in any way the basis upon which the Minister here decided personally to consider the applicant’s request for revocation. As such, I gave no weight to it. The applicant also submitted that the Minister had not produced any document, or led any evidence, setting out the reason why he had dealt with this matter personally. I was invited to draw an adverse inference about that in accordance with the rule in Jones v Dunkel (1959) 101 CLR 298.

70    The Minister submitted that the fact that he had personally exercised the power conferred by s 501CA(4) added “nothing to the analysis”. It was said that there are “multiple and varied reasons why the Minister might determine to consider an application for revocation personally”. The actual reason here, however, was not identified.

71    I should finally note that the Minister relied upon a Supplementary Court Book containing an email dated 2 January 2018 from a Senior Departmental Liaison Officer of the Department, whose name had been redacted, addressed to “Ministerial Support” as well as a document entitled “Client Brief – Victorian Youth Gang Associates” bearing the same date. Both documents contained redactions, especially so in the case of the “Client Brief.” I have not placed any weight on these documents. The basis for making the redactions, or masking, of these documents was not explained. In my view, if a party wishes to rely upon a document, it should be produced without any masking of its contents. If there is a need to mask parts of a document, a party should apply to the Court to do so. As Sundberg J observed in Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 at [25]:

It is inappropriate for a party unilaterally to determine the relevance of parts of otherwise discoverable documents by masking those parts. The party can make its case for masking to the Court, which if persuaded, can authorise it.

72    On balance, I respectfully disagree with the applicant’s contention that an apprehension of bias arises from the matters he relied upon for the following reasons:

(a)    As to the reliance upon the public statements made by the Minister set out in Mr Honnery’s affidavit, the applicable test is whether a fair-minded observer, informed about the power the Minister is called upon to exercise personally under s 501CA(4) of the Act, might form the view, based on what the Minister had said publicly, that he might be so committed to a conclusion as to the exercise of his power that his mind would not be open to persuasion by evidence and arguments submitted by or on behalf of the applicant: FQM18 v Minister for Home Affairs [2019] FCA 1263 at [27] per Davies J citing Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 171 and Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 197. In FQM18, her Honour also said the following at [26]:

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): [Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [190] per Hayne J].

          I respectfully agree with and adopt the foregoing reasoning.

(b)    Here, in my view, the Minister’s public statements must be read together with the statements set out in Mr Cunynghame’s affidavit. Read in context, I think that a reasonable observer would not conclude from the Minister’s public statements that he intended to “single out people with alleged connections to ‘African gangs’ for treatment because of their ethnicity”, to use the language of the applicant’s written submissions. The Minister was, in my view, making public comment on a perceived gang problem in Melbourne in a “permissible” way, to use the language of Davies J in FQM18. He also made it abundantly clear that: “if people are committing crimes, I don’t care what country you’ve come from. I only discriminate on one basis and that is if you’re committing crimes against Australian citizens”. That observation shows that the Minister was open to persuasion by evidence and by arguments by the applicant. It shows that the Minister’s concern was the act of committing crimes against Australians. It also demonstrates that those found to be associated with a gang and who had committed crimes would be at risk of having their visas cancelled irrespective of ethnicity.

(c)    As for the Minister’s observation in his reasons for decision that the applicant’s offending had taken place in a “‘gang’ like fashion”, I find that the observations of the sentencing judges about what had occurred on each occasion supported that characterisation of each offence. It was certainly open to the Minister to so find.

(d)    As to the claim of reliance upon “extraneous and false information” that the applicant had links with the so-called “APEX gang”, I am not satisfied that it has been demonstrated that this claim was false. It was only ever asserted that he had no such links. The applicant, in making this submission, had, in my view, first to prove the falsity of this observation. No evidence was led before me to demonstrate on the balance of probabilities that the applicant did not have links to the APEX gang. The premise of this claim – that of falsity – was not made out.

(e)    The third matter relied upon suffered from the same problem. The applicant failed on the evidence before me to demonstrate that the personal exercise of power by the Minister was indicative of apprehended bias. In the light of all his public statements set out above, that contention should be rejected. A more likely inference about what had occurred is that the Minister personally exercised the power in s 501CA(4) because the applicant’s offending had a higher profile in the state of Victoria as evidenced by the media monitoring of it. In my view, the evidence establishes no more than that the Minister adopted a course of action which the Act expressly sanctioned: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural affairs (No.2) [2019] FCA 1520 at [53] and [124] per Robertson J.

(f)    The applicant’s Jones v Dunkel point has perhaps more merit in the context of the applicant’s attempts to discover the real reason for the personal exercise of power by the Minister. However, it must be borne in mind that Jones v Dunkel can only be invoked to support the making of an inference already available on the evidence before the Court. As Hill, Dowsett and Hely JJ said in Kordan Pty Limited v Federal Commissioner of Taxation [2000] FCA 1807; (2000) 46 ATR 191 at [48]:

However, what is important to note is that the rule, however expressed, does not permit an inference to be drawn by reason of the failure of the other side to call a witness where that inference is not otherwise open. Put another way, the failure to call evidence does not provide positive evidence, nor does it fill up any gap in evidence.

          See also Commissioner of Taxation v Cassaniti [2018] FCAFC 212 at [93].

(g)    Here, the available evidence did not support the existence of an inference which might have supported the contention of apprehended bias. That is for the reasons I have given concerning the first two integers of the applicant’s claim.

73    For these reasons ground five is rejected.

74    Because the applicant was successful in relation to ground two, the application for judicial review is allowed with costs.

Associate:

Dated:    18 November 2019