FEDERAL COURT OF AUSTRALIA

Doshi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1026

ORDERS

THE COURT ORDERS THAT:

1.    The parties provide a draft form of order giving effect to these reasons by 29 July 2020.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The applicant (Mr Doshi) has sought judicial review of the decision of the Minister for Home Affairs (Minister) under s 501C(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the cancellation of Mr Doshi’s Class BB Subclass 155 (Five Year Resident Return) visa (visa).

Legislative scheme

2    Relevantly, s 501(3) of the Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the cancellation is in the national interest. Section 501C(4) of the Act provides that the Minister may revoke the decision to cancel the person’s visa if the person makes representations to the Minister in accordance with an invitation to make representations given under s 501C(3)(b) of the Act and the person satisfies the Minister that they satisfy the character test prescribed by s 501(6) of the Act. Section 501(6)(d)(i) of the Act relevantly provides that a person does not pass the character test if “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would…engage in criminal conduct in Australia”.

The Minister’s decision

3    Mr Doshi is an Albanian national who has held various Australian visas. He last departed Australia on 26 November 2014 and remains offshore. His visa was cancelled by the Minister on 11 June 2015 under s 501(3) of the Act, without affording natural justice to him (cancellation decision). In making that decision, the Minister relied on confidential information, not disclosed to Mr Doshi, to which s 503A of the Act applies. On 14 June 2015, Mr Doshi made representations under s 501C(4)(a) of the Act about revocation of the cancellation decision in accordance with an invitation of the Minister, which he later supplemented by further representations. On 13 November 2019 the Minister decided not to revoke the cancellation decision and provided a statement of reasons for his decision (statement of reasons).

4    In the statement of reasons, the Minister stated that the information he had taken into account in reaching his decision was “disclosable information”, being information provided to Mr Doshi in the course of the invitation to make representations about the revocation of the cancellation decision pursuant to s 501C(3) of the Act. The Minister also stated at [6] and [18] that he had considered the various representations made by Mr Doshi and the documents submitted in support of his request for revocation.

5    At [11]–[17] of the statement of reasons, the Minister set out the following matters in relation to Mr Doshi, which the Minister considered relevant to an assessment as to whether there is a risk that Mr Doshi would engage in criminal conduct in Australia in the event he were allowed to enter or to remain in Australia:

On 16 April 2018, the United States of America's Secretary of State issued a public designation in relation to Mr DOSHI under section 7031(c) of the FY 2017 Consolidated Appropriations Act due to ‘his involvement in significant corruption’.

According to the public designation, section 7031(c) provides that, in cases where the Secretary of State has credible information that foreign officials have been involved in significant corruption or gross violations of human rights, those individuals and their immediate family members are ineligible for entry into the United States.

The 2018 USA public designation includes allegations that Mr DOSHI was accused during the June 2017 national elections of trying to influence voters in the town of Shkoder by offering hundreds of goodwill food packages to local Egyptian residents. Also that credible media reports state his actions as being ‘suspicious and unlawful’ and damaging to elections in Albania. The public designation also refers to additional information on Mr DOSHI’s ‘corrupt acts’ as being available at ‘a higher classification’.

Accordingly, the Secretary of State designated Mr DOSHI and his immediate family members as being ineligible for entry into the United States of America.

An email from the US Department of State dated 27 July 2018, also shows that in addition to the ineligibility of Mr DOSHI for entry into the United States based on the designation under section 7031(c), there was a determination that he was also within the class of persons subject to Presidential Proclamation 7750, that suspends persons from entry into the United States on variously specified grounds of corrupt conduct that ‘has or had serious adverse effects on the national interests of the United States’. Mr DOSHI was accordingly refused a visa under s212(f) of the Immigration and Nationality Act, which provided as relevant:

Whenever the President finds that the entry of any aliens ... into the United States would be detrimental to the interests of the United States, he may ... suspend the entry of all aliens …

Further information available in the public domain alleges that Mr DOSHI has been involved in corruption in Albania. The WikiLeaks website published two Diplomatic cables from the Embassy of the United States of America in Albania one being dated 5 August 2009, titled ‘The elections are over who is parliament now’ and a second dated 13 August 2009, titled ‘Criminals Making the laws in Albania's Parliament’. Both cables are addressed to number of key international organisations, including the North Atlantic Treaty Organization, and to the Secretary of State. At the time, both cables marked as ‘confidential’ were clearly not for public distribution.

The cable dated 5 August 2009, discusses some of the newly elected members to the Albanian Parliament, and refers to Mr DOSHI as being ‘the richest-declared MP’ and running various named businesses whilst also being suspected of ‘running some not so legal enterprises’. The cable dated 13 August 2009, discusses ‘some of the more noteworthy MPs with ties to organized crime are: Tom Doshi’. The cable states that he was singled out in the Human Rights Report for physically assaulting a journalist in the lobby of the Sheraton Hotel, and that he is suspected of trafficking narcotics.

6    At [19]–[48] of the statement of reasons the Minister set out the submissions made by Mr Doshi in response to this material as follows:

Mr DOSHI does not have a criminal record in any country and he has submitted penal certificates from Germany, Italy, Albania and Australia which do not record any criminal convictions. I have considered the absence of any convictions on Mr DOSHI’s penal certificates and take this into account.

Ms Karyn Anderson, Mr DOSHI’s representative, submits that the test for failure of the character test under s501(6)(d)(i) is whether there is a risk which is more than a remote, trivial or minimal chance. She further submits that the background and circumstances of the allegations must be considered. She submits that the claims are merely allegations, are not proven in a court and should be given minimal if any weight.

Ms Anderson also submits that the allegations are unsubstantiated, have not been proven or the subject of any finding from a court of law. She contends that Mr DOSHI’s status as a sitting member of the Albanian parliament after the introduction of laws strengthening the probity standards of that parliament is significant. She further notes that Mr DOSHI has never been convicted of a crime anywhere.

Ms Anderson submits that the opaque nature of the information provided by the United States of America provide no detail and are bare assertions which provide no way to counter them other than blanket denials. The lack of identification of the sources of these allegations make it impossible to assess the credibility of those sources.

Ms Anderson has also submitted that the nature of the ‘public designation under s 7031C of the FY Consolidate [sic] Appropriations Act’ is such that Mr DOSHI was not provided with procedural fairness before the designation and he has limited legal redress now. He was not given an opportunity to respond to any adverse information, and the information he had access to was limited to that in the notice published on 18 July 2018.

Ms Anderson has further submitted that reliance by the Department on the information provided by the US would further compound the lack of procedural fairness given to Mr DOSHI in the designation process. She stated that the designation decision stemmed from the former US Ambassador to Albania, Mr Donald Lu who was motivated to ban Mr DOSHI and his family for commercial reasons. I note there is no indication that the decision relied on information supplied by former Ambassador Lu.

Ms Anderson has submitted that reliance on the US information and the US suggestion that the Australian government take similar actions against Mr DOSHI, is reprehensible and must be disregarded.

Ms Anderson further submits that the specific offence Mr DOSHI is at risk of committing has not been particularised and without knowing this, the allegations against him are ‘so broad and lacking in detail or foundation that they render an assessment of his character against s501(6(d)(i) meaningless’. Ms Anderson submits that there is no evidence that Mr DOSHI would, in any capacity, breach Australia’s anti-corruption and bribery laws.

Ms Anderson has addressed the specific allegations in the US documentation.

Ms Anderson has addressed the possibility of ‘Significant corruption’ noting the allegations appear to be in relation to Mr DOSHI’s ownership of the major pharmaceutical company in Albania. She has asserted that the allegations relevant to corruption do not cause him to be a risk of engaging in criminal conduct in Australia in the future. She advises Mr DOSHI has vehemently denied any involvement in price manipulation and manipulation of the Ministry of Health regulators in Albania. She has further postulated that Mr DOSHI is the victim of an ongoing campaign by his political rivals to discredit him by means of false charges that have been dismissed. These include allegations that he offered food packages to try to influence voters. Ms Anderson advises that two of his employees were accused of this and were found innocent.

In relation to smuggling offences, Ms Anderson submits Mr DOSHI has been accused of making his original fortune smuggling fuel and other products into Serbia during the period covered by sanctions in the Kosovo conflict. She advises these allegations are baseless, unsubstantiated and again are politically motivated, however he did own a fuel oil distribution company but never engaged in smuggling. She submits the smugglers were a Democratic Party organisation to which he was obliged at that time to sell fuel.

Ms Anderson reiterates that Mr DOSHI is seeking to enter Australia in his personal capacity and not in relation to business. As such, she submits that there is no risk of future criminal conduct of a smuggling nature.

In relation to allegations of assault, manslaughter and trafficking offences, Ms Anderson submits they are baseless speculation with no evidence. She advises that as these offences all carry substantial penalties and are inherently very serious the lack of detailed factual information leads them to lack credibility and should not be relied on.

Ms Anderson also addressed the issue of Albanian politics and media, submitting that the US designation of Mr DOSHI is largely based on Albanian media articles. She states that the articles were not provided to them for comment and were asserted to be credible. She further notes that the allegations made by the US are easily refuted which gives rise to serious questions regarding the ‘credibility and integrity’ of the information. She states that the Albanian media are unreliable and are influenced by political motives. She further states that as he is a successful businessman and popular member of parliament, Mr DOSHI is subject to frequent attacks, rumours and smear campaigns from his rivals. She submits that his unpopularity with his rivals does not mean he is corrupt.

With regard to Mr DOSHI’s status as a member of parliament, Ms Anderson has indicated that he is an independent, having been expelled from what is now the ruling party. She states he has no influence or post within the government and his only role in decision making is to vote on legislation.

In support of her contention that Mr DOSHI is the victim of baseless allegations, Ms Anderson has identified the charge of ‘false reporting of a crime’, where on 4 July 2018, the Tirana District Court in Albania declared him innocent. The charge had alleged that he falsely accused a political opponent of plotting to kill him using a hitman. Also, charges of ‘money laundering’ and ‘concealment of assets’ were dropped due to lack of evidence. His current offence of failing to ‘correctly report financial transactions’ has not yet been determined by a court although his attorneys fully expect he will be found not guilty.

Ms Anderson also provided a submission after the charge against Mr DOSHI in relation to his failure to correctly report financial transactions was heard and dismissed. In it she submitted that as Mr DOSHI has been exonerated of all charges and continues to be a sitting member of the Albanian parliament, “all allegations made against Mr Doshi were in fact baseless and that any assertion that Mr Doshi cannot satisfy the character test, pursuant to s501(6)(d)(i) of the Migration Act simply cannot be maintained.”

Mr Meci, Mr DOSHI’s Albanian lawyer, has submitted that the withdrawal by the Prosecution of the appeal against Mr DOSHI’s acquittal on the ‘false denunciation’ charge shows that the Prosecution accepted that bringing unfounded charges against Mr DOSHI was their mistake and acceptance of responsibility for overzealous prosecution.

The above false denunciation charge had alleged that Mr DOSHI falsely accused a political opponent of plotting to kill him using a hitman. Mr DOSHI submits that he was in fact the subject of a politically contrived attempted assassination attributed to his public criticisms of senior members of the Albanian government. Mr DOSHI submits that his life continues to be in danger and that he is the victim of state sanctioned persecution in violation of his civil liberties.

Ms Anderson has submitted that the Albanian media are not all independent and impartial and has used this to attack the credibility of the US documents and their findings regarding Mr DOSHI.

Ms Anderson advised that Mr DOSHI intends to request a waiver of the US designation once the State Department report has been made public or is obtained through a Freedom of Information Act request. She advises Mr DOSHI also intends to approach the new US ambassador to Albania once the appointment of the Ambassador has been confirmed. Ms Anderson submits that the timeframe for these incidents is not clear, however, he has not done so as yet and will do so once he is in a position to. As his avenues for having the designation set aside have not yet been expended, Ms Anderson submits that it is inappropriate to base findings about MR DOSHI’s character on the information provided by the US and the designation itself as it may be removed in the near future.

Mr DOSHI also submits that he has never been and is not a member of any criminal group or organisation and the classified information which has not been communicated to him is not a true representation of his character.

Mr DOSHI submits that the legal matters brought against him in Albania are politically motivated and are an infringement on his legal and political rights. I have considered the letter of Mr DOSHI's Albanian lawyer, Mr Meci, in this regard who remarks that the decision to cancel Mr DOSHI's visa is based only on information provided unilaterally and secretly by the Albanian authorities as a further tool of persecution against Mr DOSHI.

Mr DOSHI states that as part of their effort to undermine him, senior Albanian political figures have provided the Australian authorities with false information which would lead to an incorrect conclusion that Mr DOSHI is involved in criminal conduct.

I have considered Mr DOSHI’s submissions with regard to what he claims to be politically motivated charges, political persecution and threats of harm by the Albanian authorities. I have taken into account the material provided by Mr DOSHI including his submissions to the Albanian Parliament, submissions to the General Prosecutors Office in Albania and media articles and extracts of interviews with Mr DOSHI and other figures within Albania.

Mr DOSHI submits that his business interests in Albania are legitimate and comply with the legal requirements of Albania. I note that Mr DOSHI has submitted a large number of documents regarding his business interests in Albania and I have had regard to these.

Mr DOSHI submits that the media in Albania is politically affiliated, and the articles referred to in the [s 501(3) documents used in the cancellation decision] are not independent or true reflection of his character or events in Albania. I have considered the media articles that Mr DOSHI has submitted in support of his version of events as well as extracts of interviews with Mr DOSHI and other figures in Albania.

I note Mr DOSHI’s submissions that he has always worked for the good of the community and helping people, and the letters submitted to this effect including one from a Cardinal of the Catholic Church.

Mr DOSHI states he has always observed Australian laws and contributed to the good of the Australian community particularly through his business interests and payment of taxes as well as his general good conduct reflected by the absence of any criminal convictions in Australia.

In summary Ms Anderson has submitted that the allegations ‘have no factual basis’ and ‘can be refuted’ by Mr DOSHI. She further submits that the ‘allegations alone cannot lead to a conclusion that impugns Mr DOSHI’s character generally or suggests any risk of future criminal conduct.’

7    At [49]–[55], the Minister made the following findings:

(a)    at [49] the Minister stated that “[n]otwithstanding [Mr Doshi’s] representations”, he placed “significant weight” on the United States “Public Designation of Tom Doshi Under Section 7031(c) of the FY 2017 Consolidated Appropriations Act” (public designation) (including the reasons for the public designation), the Presidential Proclamation decision information “and the serious nature of the matters that gave rise to the findings made therein”;

(b)    at [50] the Minister found that the decision made by the United States to designate Mr Doshi, a non-citizen of that country, and his family, “would have been taken very seriously” and it “relied on information determined by the Secretary of State to be ‘credible’”;

(c)    at [51], the Minister also considered that the United States found that entry by Mr Doshi to the country would be detrimental to the interests of the United States as a result of conduct considered to have had, or be having, a serious adverse effect on the national interests of the United States;

(d)    at [52], the Minister stated he understood from the public designation that “information on [Mr Doshi’s] corrupt acts was available at a higher classification” and that Mr Doshi had submitted he was not given an opportunity to respond before the public designation banning him from entering the United States was made, but “despite this” the Minister could not disregard the United States’ Secretary of State’s decision to designate Mr Doshi as ineligible for entry into the United States and the reasons given for the public designation “albeit in brief or with un-particularised details disclosed to [Mr Doshi], likely due to the classified nature of that information”; and

(e)    at [53], the Minister also considered the diplomatic cables from the Embassy of the United States in Albania, dated 5 and 13 August 2009 and published by the WikiLeaks website (2009 diplomatic cables), which “contain allegations, albeit around 10 years ago, also regarding corruption by [Mr Doshi]” that were provided to key international organisations at the time, including the North Atlantic Treaty Organization, and the Secretary of State, and that were confidential.

8    On the basis of that information the Minister:

(a)    accepted that Mr Doshi “has engaged in corrupt conduct in Albania involving private business activities and acts relating to his public status as a member of parliament or in the election process” and “such criminal conduct was considered to be of such a serious nature and widespread that the [United States] considered he posed an international risk to that country” (at [54]);

(b)    found there was a risk that Mr Doshi “will continue to engage in criminal conduct in the event he were allowed to enter or remain in Australia”, “[g]iven [his] conduct was of concern as early as 2009” and the United States “considered him to be of international risk to that country in 2018” (at [55]); and

(c)    also found that “[i]n the event that Mr Doshi engaged in serious corrupt conduct in Australia involving business or other activities, this may pose a financial risk to the Australian community” (at [56]).

9    The Minister concluded that he reasonably suspected there is a risk that Mr Doshi would engage in criminal conduct in Australia in the event that he was allowed to enter or remain in Australia, and accordingly concluded that Mr Doshi did not pass the character test as defined in s 501 of the Act and thus s 501C(4)(b) was not met: at [57]–[59] of the statement of reasons. On that basis, the Minister decided not to revoke the cancellation decision.

Grounds of review

10    The grounds of review (omitting ground 1 which was not pressed) were as follows:

2.    The Minister erred in positively finding that the applicant “has engaged in corrupt conduct in Albania” ([54]).

Particulars

(a)    The Minister based his positive finding that the applicant has engaged in corrupt conduct in Albania on material that was of insufficient probative value, comprising: (a) certain material provided to him from the US Department of State; and (b) certain material published by WikiLeaks. Further or alternatively, it was errant for the Minister to assume the reliability of the opinion of the US Department of State on the basis that it “would have been taken very seriously”.

(b)    The Minister failed to engage in a genuine and active intellectual process with respect to significant and clearly expressed representations and evidence by the applicant as to whether he had engaged in “corrupt conduct”, and the probative value (or lack thereof) of the US and WikiLeaks material.

(c)    Further or alternatively, the Minister failed to make obvious inquiries of the US Department of State, including for:

(i)    the media reports which US Department of State or embassy considered “credible”, and upon which they based their opinions; and

(ii)    the “additional information on the [applicant’s] corrupt acts”, which the US Department of State specifically identified as being available.

(d)    Further or alternatively, the Minister’s reliance on the US Department of State’s opinions, where the basis of those opinions was not disclosed, involved an abdication of his statutory function under section 501C, which was vested in the Minister personally, and could not be delegated.

(e)    Further, it was procedurally unfair for the Minister to give “significant weight” to the US Department of State’s opinions. Alternatively, it was unreasonable for the Minister to do so.

3.    Further or alternatively to 2, even if the Minister did not err in positively finding that the applicant “has engaged in corrupt conduct in Albania”, the Minister erred in finding that there was a risk that the applicant will “continue to engage in criminal conduct … in Australia”.

Particulars

   (a)    The particulars to ground 2 are repeated.

(b)    The Minister gave no reasons for explaining why the fact (if it is the case, which is denied) that the applicant had engaged in corrupt conduct in Albania meant that there was a risk that he would engage in corrupt conduct in Australia in the future.

4.    Further or alternatively to grounds 2 and 3, the Minister’s decision is affected by apprehended bias.

Particulars

   (a)    The particulars to ground 2 are repeated.

(b)    In making his decision, the Minister placed significant weight on a public designation of the applicant as being ineligible for entry into the United States by the Department of State of the United States of America under section 7031(c) of the FY 2017 Consolidated Appropriations Act (US).

(c)    As noted above, that designation was based on information which the Minister did not consider or assess.

(d)    The Department of State specifically “encourage[d]” the Minister or the Government of Australia to “take similar visa actions against [the applicant]” as it had done under section 7031(c)”.

(e)    Australia and the United States of America are significant allies, and cooperate closely on a range of matters.

(f)    A reasonable lay observer might think that, in these circumstances, the Minister might have deviated from the true path of decision-making, by being influenced by the “encouragement” or urging of its ally in the United States to (in effect) ensure that the applicant does not have a visa to enter Australia, rather than the probative weight of the information available to him as to whether the applicant had in fact engaged in corrupt conduct.

11    Counsel for Mr Doshi submitted there is a relationship between the grounds, which each identify errors relating either to the Minister’s finding that Mr Doshi “has engaged in corrupt conduct in Albania” (being the premise for the Minister finding a risk of criminal conduct in Australia) and the Minister’s conclusion that Mr Doshi “will continue to engage in criminal conduct … in Australia”. It was said this is a case where the underlying flaws may be described or understood in one or more different ways, each of which may “run into one another”.

Ground 2

12    Ground 2 challenges the finding of the Minister that Mr Doshi has engaged in corrupt conduct in Albania on five bases, claiming:

(a)    a lack of sufficient probative evidence to support a positive finding that Mr Doshi had engaged in “corrupt conduct”;

(b)    a failure to give genuine and active consideration to Mr Doshi’s substantial evidence and submissions directed at disputing the adverse information and credibility findings;

(c)    an unreasonable failure to inquire;

(d)    an abdication of the Minister’s non-delegable function of making an assessment of Mr Doshi’s risk of engaging in criminal conduct in Australia; and

(e)    procedural unfairness or, alternatively, unreasonableness.

(1)    Material relied on was of insufficient probative value

13    It was submitted for Mr Doshi that where a decision-maker makes a positive finding that a person has committed a serious crime such as corruption, there must be probative evidence to support that finding, and the material upon which the Minister found that Mr Doshi had engaged in corrupt conduct in Albania was of insufficient probative value to make such a finding. Reference was made to Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, in which the Full Court considered the previous form of s 501 of the Act, which required the Minister to have regard to the person’s “past criminal conduct” in determining whether they were a person of good character. The Full Court held at 194 that a criminal conviction was not necessary in order to take such conduct into account but, in the absence of prosecution and conviction, cautioned that satisfaction that criminal conduct has occurred will not be attained on “slight material”. Reference was also made to FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754 where, in the context of considering the proper construction of Art 1F of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (Convention), which relevantly provides that the Convention does not apply to any person with respect to whom “there are serious reasons for considering that… he has committed a serious non-political crime”, Kiefel CJ and Gageler J stated at 761 [16] that the absence of a requirement under Art 1F(b) for a positive finding that the applicant had committed a serious non-political crime did not mean that the criterion requires anything less than “meticulous investigation and solid grounds” and the decision-maker must “pay close attention to the probative relevance of the material”. It was submitted, a fortiori, that must be so where the decision-maker makes a positive finding that a person has committed a serious crime, and that the material upon which the Minister based his positive finding that Mr Doshi had engaged in corrupt conduct in Albania was “clearly inadequate” to support that finding.

14    The Minister argued that those cases were concerned with different statutory tests requiring consideration of past criminal conduct whereas, in the present case, although the Minister made a finding that Mr Doshi had engaged in criminal conduct in Albania, the ultimate question for the Minister under s 501(6)(d)(i) of the Act was whether there is a risk that Mr Doshi will engage in criminal conduct in Australia. It was not necessary as part of this inquiry that the Minister be satisfied that Mr Doshi had engaged in criminal conduct in the past in order to be satisfied of the risk of such conduct in the future. It was also argued that the complaint made by Mr Doshi was “one fundamentally of there being ‘no evidence’”. It was argued that the “no evidence” ground of review is engaged in the limited circumstances where there is not a “skerrick” of evidence or “no evidentiary basis” to support a particular finding made or inference drawn by the decision-maker, citing in support Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 (Australian Retailers Association) at 587 [575]; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 (Bond) at 355–6 (per Mason CJ) and MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378 at [54]. It was submitted that save that the reviewing court must be satisfied that the evidence relied upon achieves at least a threshold probative value, the inquiry is not otherwise concerned with ascertaining the sufficiency or quality (including cogency) of the evidence.

15    The ground necessarily invites and requires a comparison between the material available to the decision-maker and the conclusions drawn from that material.

The material

16    The material which the Minister took into account included the following documents.

The US material

17    A document described as a “Media Note” issued by the United States Bureau of Public Affairs and dated 16 April 2018. It relevantly stated as follows:

The Department is publicly designating Albanian Member of Parliament Mr. Tom Doshi under Section 7031(c) of the FY 2017 Consolidated Appropriations Act, due to his involvement in significant corruption. Section 7031(c) provides that, in cases where the Secretary of State has credible information that foreign officials have been involved in significant corruption or gross violations of human rights, those individuals and their immediate family members are ineligible for entry into the United States.

18    An undated document, which, it was submitted for Mr Doshi, “had clearly been prepared by a US government official specifically for the Australian government”. The document is entitled “Applying Section 7031(c) to Tom Doshi and Family” and is marked “sensitive but unclassified” (s 7031(c) memorandum). After restating the information in the media note, it stated as follows:

(SBU) Tom Doshi is the owner of ProFarma, the largest pharmaceutical company in Albania, which dominates by manipulating the Ministry of Health regulators of the pharmaceutical industry. Media reports indicate that Profarma has been designated as the drug company “of first choice” by the Ministry of Health, which positioned the company for a disproportionately high rate of drug reimbursements. The head regulator is a former employee of ProFarma. This has damaged the interests of many international pharmaceutical companies. This process has been well documented in open source local media, which our embassy deems credible. Doshi is also believed to have made his original fortune by smuggling fuel and other products into Serbia during the sanctions over the Kosovo conflict.

(U) During the June 2017 national elections, Doshi was accused of trying to influence voters in the town of Shkoder by offering hundreds of goodwill food packages to local Egyptian residents. Doshi denied wrongdoing, but credible media reporting described Doshi’s actions as “suspicious and unlawful” and said it was “another example of bad behaviour that has damaged elections in Albania for more than two decades.” Additional information on Mr. Doshi’s corrupt acts is available at a higher classification. Given the severity of Mr. Doshi’s corruption and his familial connections to Australia, we would like to encourage the government of Australia to take similar visa actions against Doshi himself.

(SBU) Additionally, the U.S. Human Rights Report outlines an incident when Mr. Doshi severely beat a journalist in the lobby of the Sheraton hotel. He is also believed to have been convicted of manslaughter while serving in the Albanian Army during the communist period…

(emphasis in original)

19    An email from an official in the US Department of State dated 26 July 2018. The email relevantly stated that, in addition to Mr Doshi having been designated under s 7031(c) of the FY 2017 Consolidated Appropriations Act (US), Mr Doshi had also been determined to be “within the class of persons subject to Presidential Proclamation 7750”. The email set out the terms of Presidential Proclamation 7750 as follows:

Section 1. The entry into the United States, as immigrants or nonimmigrants, of the following persons is hereby suspended:

(a)    Public officials or former public officials whose solicitation or acceptance of any article of monetary value, or other benefit, in exchange for any act or omission in the performance of their public functions has or had serious adverse effects on the national interests of the United States.

(b)    Persons whose provision of or offer to provide any article of monetary value or other benefit to any public official in exchange for any act or omission in the performance of such official’s public functions has or had serious adverse effects on the national interests of the United States.

(c)    Public officials or former public officials whose misappropriation of public funds or interference with the judicial, electoral, or other public processes has or had serious adverse effects on the national interests of the United States.

(d)    The spouses, children and dependent household members of persons described in paragraphs (a), (b) and (c) above, who are beneficiaries of any articles of monetary value or other benefits obtained by such persons.

Sec. 2. Section 1 of this proclamation shall not apply with respect to any person otherwise covered by section 1 where entry of the person into the United States would not be contrary to the interests of the United States.

Sec. 3. Persons covered by sections 1 and 2 of this proclamation shall be identified by the Secretary of State or the Secretary’s designee, in his or her sole discretion, pursuant to such standards and procedures as the Secretary may establish.

Sec 4. For purposes of this proclamation, “serious adverse effects on the national interests of the United States” means serious adverse effects on the international economic activity of U.S. businesses, U.S. foreign assistance goals, the security of the United States against transnational crime and terrorism, or the stability of democratic institutions and nations.

20    The email further stated that both grounds of ineligibility provided the basis for Mr Doshi’s visa refusal, and the United States Embassy in Tirana had informed Mr Doshi in April 2018 that he had been refused under s 212(f) of the Immigration and Nationality Act (US) (Immigration and Nationality Act). Section 212(f) of the Immigration and Nationality Act was extracted and reads:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

The Wikileaks material

21    A diplomatic cable apparently from the United States Embassy in Tirana, Albania issued on 5 August 2009 entitled “The elections are over; who is in parliament now?”, which, under the heading “the businessmen”, relevantly stated:

… Finally, some MPs are simple thugs. These MPs have made their fortunes through various means and tend to switch parties if business requires. They can be very rich, have minimal education, and they can be violent. The classic example is Tom Doshi, who is the richest-declared MP with a fortune estimated at EUR 10 million, and who runs construction, pharmaceutical, and dairy businesses. He is also suspected of running some not so legal enterprises.

22    A second diplomatic cable dated 13 August 2018 and entitled “Criminals making the laws in Albania’s parliament”, which, under the heading “Law Breakers Turned Law Makers”, relevantly stated:

(C)    Some of the more noteworthy MPs with ties to organized crime are:

-- Tom Doshi: An SP MP from Shkoder, Doshi, singled out in the Human Rights Report for physically assaulting a journalist in the Sheraton Hotel, was a key figure in financing SP electoral efforts. He is known as the richest MP, with a declared fortune of more than $15 million and is also suspected of trafficking narcotics. Doshi served in the previous parliament as a DP MP, before switching sides to the SP shortly before the election.

…

Applicant’s submissions on the material

23    The following observations were made by counsel for Mr Doshi about that material.

The US material suggested that “the Department” (i.e., presumably an officer or officers in the Department of State, rather than the Secretary of State himself) considered that it had “credible information” that the applicant had been involved in “significant corruption”. However, the nature of this underlying information, and the basis upon which it was considered by the Department of State to be “credible”, was not explained. Moreover:

With respect to the information about ProFarma, nothing in the US material identified any particular corrupt or illegal conduct of the applicant. The US material asserted that ProFarma “manipulat[es] the Ministry of Health regulators”, but identified no particular conduct of the applicant personally (as compared to the company), let alone any particular conduct of the applicant personally that could aptly be described as “corruption” (abuse of public power).

The information about ProFarma derived from “open source local media” (i.e., Albanian media), which the US embassy “deems credible”. But the basis upon which the US embassy considered that that (unidentified) “local media” to be “credible” was entirely unexplained. And none of the “local media” was provided by the US to the Minister, or was thereafter sought and reviewed by the Minister. Accordingly, the information comprised (at best) third-hand hearsay, and opinion where the basis of the opinion was not disclosed.

With respect to information about smuggling fuel and other products into Serbia during the Kosovo conflict, this was likewise of no probative value. The US material stated in the passive voice that it “is believed” that the applicant made his initial fortune this way. By who? On the basis of what evidence? Moreover, no connections were drawn such that this alleged conduct could, in any event, be aptly described as involving “corruption” (as distinct from mere illegality).

With respect to the information about the June 2017 national elections, the US material was again of no probative value. The US material records that the applicant was “accused” of trying to influence voters. By who? On the basis of what evidence? All that is referred to is “credible media reporting [which] described [the applicant’s] actions as ‘suspicious and unlawful’”. Again, the basis upon which the US embassy deemed that (unidentified and unprovided) “media” to be “credible” was unexplained. And none of the “media” was provided by the US to the Minister, or was thereafter sought and reviewed by the Minister. The information comprised (at best) third-hand hearsay evidence, and opinion evidence where the basis of the opinion was not disclosed. Moreover, the opinion appeared to amount to no more than “allegation” and “suspicion”, which cannot support a positive finding of fact.

Finally, the US information indicated that there was “[a]dditional information on [the applicant’s] corruption at a higher classification”. But the Minister did not seek that information, so as to enable him to make his own assessment of it.

The WikiLeaks information was of no probative value in assessing whether the applicant has engaged in corrupt conduct in Australia. That information was not only old (from 2009), it rose no higher that indicating that an (unidentified) person or persons suspected the applicant of “running some not so legal enterprises” and/or “trafficking narcotics”. Moreover, the basis or bases upon which these person or persons supposedly held these suspicions were not identified. The reference to “running some not so legal enterprises” is hopelessly vague (what “enterprises”? in what respect “unlawful”?). And both that suspicion, and the suspicion that the applicant was “trafficking narcotics” does not readily translate to the distinct notion of “corruption”.

(footnotes omitted; emphasis in original)

Consideration

24    The reasoning process of the Minister in “accepting” that Mr Doshi has engaged in corrupt conduct in Albania was as follows:

(a)    the Minister gave significant weight to the US material;

(b)    based on that material, the Minister found the decision made by the United States to designate Mr Doshi publicly as a person ineligible for entry into the United States of America “would have been taken very seriously” and relied on information determined by the Secretary of State to be “credible”;

(c)    also based on that material, the Minister considered that the United States had found that entry by Mr Doshi to that country would be detrimental to the interests of the United States as a result of conduct considered to have had, or to be having, a serious adverse effect on the national interests of the United States; and

(d)    the Minster also considered that the 2009 diplomatic cables contained allegations, albeit around 10 years ago, “also regarding corruption by [Mr Doshi]”.

25    Based on that material also, the Minister also accepted that Mr Doshi’s “criminal conduct” was considered to be of such a serious nature and so widespread that the United States considered he posed an international risk to that country. The Minister then found there is a risk that Mr Doshi will “continue” to engage in criminal conduct in the event he were allowed to enter or remain in Australia “given” his conduct “was of concern” as early as 2009 and that the United States “considered him to be of international risk to that country in 2018, during some of which period Mr Doshi resided in Australia”.

26    It is well established that a decision-maker may make a jurisdictional error by failing to base a decision on probative material: Bond at 358 (per Mason CJ) and 367 (per Deane J). The “no evidence” ground of judicial review amounts to the same thing. That is to say, the “no evidence” ground requires that there be simply no evidence, or other material, to justify the findings of fact made: Australian Retailers Association at 587 [575].

27    In my view, the public designation alone did not provide a sufficient probative evidentiary basis upon which to make the positive finding that Mr Doshi has engaged in corrupt conduct in Albania, as the statutory threshold to make such public designation is the existence of “credible information”, and the media note does not indicate that the US Department of State made an actual finding of corrupt conduct, though it was satisfied there was credible information indicating this. However, I do not think it can be said here that there was not a skerrick of evidence before the Minister or other material to support the finding that Mr Doshi has engaged in corrupt activities in Albania. The government of the United States did not base its refusal of entry to that country only on the public designation. It appeared from the email dated 26 June 2018 that his entry to the United States was refused also on the basis of a determination that he is within the class of persons subject to Presidential Proclamation 7750, set out at [19] above.

28    In light of the terms of Presidential Proclamation 7750, the determination that Presidential Proclamation 7750 applies to Mr Doshi was, in my view, probative evidence capable of supporting the Minister’s finding that Mr Doshi has engaged in corrupt activities in Albania. Whether the weight of that evidence called for the finding that was made by the Minister was a matter for the Minister to determine, not for this Court. It is sufficient that there be a probative evidentiary basis and it cannot be said, in my view, that there was no probative material before the Minister to support that finding.

29    Presidential Proclamation 7750 also provided an evidentiary basis for the Minister’s finding concerning the serious nature of Mr Doshi’s “corrupt conduct”, given he was considered by the United States as an international risk to that country. That finding, coupled with the finding that Mr Doshi has engaged in corrupt conduct in Albania, then formed the basis of the reasoning process to conclude that Mr Doshi failed the character test under s 501(6)(d)(i) of the Act. That provision only required the Minister to be satisfied there is a “risk” that Mr Doshi would engage in criminal conduct in Australia, and the two cases to which counsel for Mr Doshi referred in support of his argument do not advance Mr Doshi’s case. Consistent with the submission advanced for the Minister, both those cases concerned different statutory tests and can be distinguished on that basis. In the present case, qualitatively the Minister only had to be satisfied to the level of finding that there was a risk. It cannot be said, in my view, in light of the evidence as a whole, that the findings on which the Minister reached that state of satisfaction was not supported by probative evidence.

(2)     Failure to give genuine and active consideration to Mr Doshi’s material

30    It was argued for Mr Doshi that notwithstanding a large part of the Minister’s statement of reasons was devoted to setting out the material provided by Mr Doshi, that part of the Minister’s reasons that sets out his reasoning process is brief and the Minister did not engage in any analysis of the substantial submissions and evidence put forward by Mr Doshi. It was submitted that the Minister’s brief statements that he had considered Mr Doshi’s material do not demonstrate that he did so, let alone that he did so genuinely and actively. Reliance was placed on Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 (Maioha) where Rares and Robertson JJ stated at 654 [45]:

What is required is the reality of consideration by the decision-maker… Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.

31    Reference was also made to Minister for Home Affairs v Omar [2019] FCAFC 188 where the Full Court said at [39]:

Giving meaningful consideration to a clearly articulated and substantial or significant representation… requires more than… simply acknowledging or noting that the representations have been made.

32    It was submitted that the approach of the Minister to give “significant weight” to the US material on the basis that public designation “would have been taken very seriously” was an inadequate approach to responding to the matters raised by Mr Doshi.

33    A decision-maker is not obliged to refer to every piece of evidence and every contention made in its reasons (Maioha at 653–4 [41]–[45] per Rares and Robertson JJ) and I do not consider that the Minister fell into the error alleged. It is apparent from the reasons that the Minister did, as a matter of substance, have regard to the representations put. First, those representations are put out in some detail. Secondly, at [49], the Minister made reference to such representations and documents provided by or on behalf of Mr Doshi as “disputing the adverse information and its credibility”, which it plainly did. Thirdly, it is plain from the Minister’s reasons that the Minister engaged in an evaluative task by attributing to the US material “significant weight” by reason of two factors: (1) that the decision made by the United States to make the public designation in regard to Mr Doshi “would have been taken very seriously” and (2) that it relied on information determined by the Secretary of State to be “credible”. Contrary to the submission for Mr Doshi, the approach taken by the Minister was not “inadequate” in responding to the matters he raised in his representations. Rather, the complaint, in substance, is that undue weight was given to the US material. However, it was open for the Minister to attribute greater weight to the US material than to the submissions put on behalf of Mr Doshi and, in view of the significant weight given by the Minister to that material for the reasons given, the Minister was not required to give more extensive consideration to the representations put by or on behalf of Mr Doshi.

(3)     Unreasonable failure to inquire

34    Next it was argued that the Minister unreasonably failed to make obvious inquiries of the US Department of State, including for material that would have been easily ascertained being:

(a)    the media reports which the US authorities considered “credible” and upon which they based their opinion; and/or

(b)    the “additional information on the [applicant’s] corrupt acts” that the US Department of State specifically identified to the Australian Government as being available.

It was submitted that such material was obviously important, given that it was the basis upon which the US authorities made their decision.

35    A decision-maker’s failure to make an obvious inquiry about a critical fact may constitute jurisdictional error where material is readily available which is centrally relevant to the decision to be made and the decision-maker proceeds to make the decision without obtaining that information: Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at 39 [49] per Nettle J, citing Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169–70. The critical fact upon which the Minister relied was that to make the public designation, the Secretary of State had to be satisfied there was “credible information” that Mr Doshi had been involved in significant corruption. There was, however, no duty on the Minister to inquire into whether the US Department of State’s view there was such “credible information” was soundly based. Absent such a duty, the Minister was entitled to rely on the US Department of State’s assessment without making his own independent inquiries or calling for any further material to satisfy himself of the basis upon which the US Department of State concluded there was credible information.

(4)    Abdication of function

36    Next it was submitted there was jurisdictional error in the Minister’s approach in that the Minister abdicated his non-delegable function under s 501C of the Act. It was submitted the power under s 501C must be exercised by the Minister personally: see s 501C(5). Reference was made to Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 where at 362 [39], the Full Court approved the observations of Burchett J in Tickner v Chapman (1995) 57 FCR 451, where his Honour said at 476, relevantly:

… Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 at 568-569…

37    It was submitted that the Minister could not simply rely on the evaluative assessment by the US Department of State of the probative value of media reports or other material in assessing whether Mr Doshi had engaged in corrupt conduct in Albania, without himself assessing that information. It was submitted that to do so was fundamentally to abdicate the personal responsibility which the Act vests in the Minister under s 501C to make his own assessment of whether Mr Doshi has engaged in criminal conduct, or poses a risk of doing so in the future.

38    In response, the Minister argued there is no merit to that submission. It was submitted that whilst the decision of the Minister was undoubtedly informed by the US material, it nonetheless reflected the Minister’s own assessment of “risk”, including as reflected in [55] of the Minister’s statement of reasons. It was submitted that the Minister independently reviewed the US material, as reflected in [15] and [16] of the statement of reasons, and made findings that reflected the Minister’s appraisal of such material.

39    The Minister did not fall into the error alleged by Mr Doshi. The Minister’s legal obligation was to consider whether or not Mr Doshi satisfied the character test prescribed by s 501(6) of the Act. He did not abdicate that function. He relied on the US material and the 2009 diplomatic cables as probative evidence that Mr Doshi had engaged in corrupt activities in Albania and, by reference to that material, made an assessment as to whether there is a risk that Mr Doshi would engage in criminal conduct in Australia in the event that he entered or remained in Australia. The Minister did not hand over to the US the task of considering that question. Mr Doshi may have a complaint about the weight attributed to the US material by the Minister in evaluating whether the character test was satisfied, but it was open to the Minister to consider and give weight to that material in assessing whether Mr Doshi passed the test prescribed in s 501C(6).

(5)     Procedural fairness or unreasonableness

40    Finally, it was argued that in circumstances where Mr Doshi was not afforded an opportunity to comment on the information considered by the US Department of State, it was procedurally unfair for the Minister to base his positive finding that he had engaged in corrupt conduct in Albania on the US Department of State’s decision, without considering the material on which the US Department of State relied. In support of this submission, reference was made to an article, Neil Rees, “Procedure and Evidence in ‘Court Substitute’ Tribunals” (2006) 28 Aust Bar Rev 41, where Professor Rees explained in relation to administrative decision-making at 76:

While it is generally accepted that the historical rationale for the [hearsay] rule may have been either the unreliability of hearsay evidence, or its unfairness, or both, Heydon has concluded that ‘[t]he absence of an opportunity to cross-examine the maker of the statement is, however, the best all-embracing reason that can be given for the rule’. Consequently, a tribunal which is not bound by the rules of evidence, but which is required to comply with the rules of natural justice, may face considerable difficulties when confronted with hearsay evidence which contains assertions of fact that go to the heart of disputed questions of fact in the proceedings. In extreme cases the unfairness generated by admitting and acting upon such evidence may cause a tribunal to refuse to accept hearsay evidence, or, if it is admitted, a supervising court may set aside the tribunal’s decision on natural justice grounds…

(footnotes omitted)

41    It was submitted that the Minister here placed “significant weight” on a decision, which comprised third-hand hearsay at best, and an opinion where the basis of the opinion was not disclosed. That, in counsel for Mr Doshi’s submission, caused unfairness. It was said, further or alternatively, that it was legally unreasonable for the Minister to place “significant weight” on the evidence where its probative value (argued to be nil or negligible) was substantially outweighed by the fact that Mr Doshi had never been given an opportunity (either in the United States or in the context of the visa cancellation process) to respond to the underlying information from the person (if anyone) who was an actual witness to relevant events, or to comment on the evidentiary basis of the opinion formed by the United States.

42    In substance the submission amounted to the proposition that the decision of the Minister was unfair because, in making his decision, the Minister took into account, and gave significant weight to, a decision of the US Department of State in circumstances where Mr Doshi was not afforded an opportunity to comment on the information considered by the US Department of State. However, the argument proceeds on the misconception that the circumstances in which the US Department of State made its decision can undermine the lawful exercise by the Minister in the exercise of his powers under ss 501 and 501C of the Act. Nothing in the scheme of the Act made the Minister’s decision conditional upon the US Department of State according Mr Doshi procedural fairness. Furthermore, the Minister afforded the opportunity to Mr Doshi to make submissions addressing the specific allegations in the US documentation, which opportunity Mr Doshi took up. The Minister only needed to be satisfied that the public designation and presidential proclamation were probative evidence with respect to whether Mr Doshi passed the character test. Thus, it does not follow that because Mr Doshi was not afforded an opportunity to put submissions to the US Department of State before it made its decision, the Minister could not rationally give weight to the US material. There was no legal obligation on the Minister to consider the underlying material on which the US Department of State relied in order to give weight to the US material.

43    Accordingly, the applicant fails on ground 2.

Ground 3

44    It was argued that even if it was open to the Minister to find that Mr Doshi had engaged in corrupt conduct in Albania in the past, it did not follow that it was open to the Minister to find there is a risk he would “continue to engage in corrupt conduct…in Australia”. Reliance was placed on Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 (Splendido). In that case, Mr Splendido’s visa was cancelled pursuant to s 501(3A) of the Act on the ground he had a substantial criminal record and was serving a full-time sentence of imprisonment. Mr Splendido made representations seeking revocation of the cancellation decision pursuant to s 501CA of the Act. The Assistant Minister decided not to revoke the cancellation decision for reasons that concluded that Mr Splendido represented an unacceptable risk to the Australian community because of the likelihood he would reoffend. Justice Mortimer held that finding involved no more than speculation on the part of the Assistant Minister (at [52], Moshinsky J agreeing) and Wheelahan J held that the material before the Assistant Minister did not provide a rational, probative foundation for the conclusion reached (at [132]). Justice Mortimer (Moshinsky J agreeing) held at [77]–[78] that “what is required for such evidence [of past offending] to be considered is strictly controlled by reference to the nature and circumstances of the offending, as [Hughes v The Queen [2017] HCA 20; 344 ALR 187] and other authorities before it demonstrate”, that the task of assessing the risk of recidivism involves a “complex” analytical process, where the “nature and circumstances of past offending are integral”, and that “[a]lso of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated”.

45    It was submitted that here the Minister’s analysis involved nothing more than finding:

(a)    Mr Doshi had engaged in corrupt conduct in Albania in the past; and

(b)    therefore there is a risk that Mr Doshi will engage in corrupt conduct in Australia in the future.

46    It was submitted that as Splendido and the cases referred to show, such analysis is deficient, and it was necessary to engage in a detailed examination of the circumstances of offending and the likely future circumstances of Mr Doshi. That analysis was said not to have been done here.

47    Further, it was argued it was not even precisely clear what the “corrupt conduct” that Mr Doshi was supposed to have engaged in Albania was. The following rhetorical questions were asked:

if the supposedly corrupt conduct related to ProFarma, how was it supposed that there was a risk similar conduct would be engaged in in Australia, where the applicant is not a member of parliament, and governance arrangements and conditions are presumably rather different from in Albania?

if the supposedly corrupt conduct related to smuggling fuel and other products into Serbia during the Kosovo conflict, how was it supposed that such conduct might be replicated in Australia in the future?

if the supposedly corrupt conduct related to “influencing” voters in elections, again, given that the applicant has no significant role in Australian political life, and the presumably different governance arrangements and conditions in the two countries, how was it supposed that there was a significant risk that the applicant would engage in such conduct in Australia?

It was said that none of these matters were considered by the Minister.

48    There are three responses to those submissions. The first is that the Minister did not need to find that the risk that Mr Doshi would engage in criminal conduct in Australia was “significant”. All the Minister had to find was that there was “a risk”. There is a qualitative difference between “a risk” and “a significant risk”. The second is that in Splendido the finding made by the Assistant Minister was not simply about any risk of reoffending. It was that, by reason of that risk, Mr Splendido posed an unacceptable risk to the Australian community. By way of distinction, no qualitative assessment was required to be undertaken by the Minister in this case in relation to whether the risk that Mr Doshi would engage in criminal conduct in Australia posed an unacceptable risk of harm to the Australian community. Thirdly, it is implicit in the Minister’s statement of reasons that the finding that there is a risk that Mr Doshi would engage in criminal conduct in Australia was not based solely upon the Minister’s acceptance that Mr Doshi had engaged in corrupt conduct in Albania but upon the reasoning of the Minister that:

(a)    his criminal conduct was considered by the US Department of State to be of such a serious nature and so widespread that the US considered he posed an international risk to that country; and

(b)    his conduct was of concern as early as 2009 and the United States considered him to be an international risk to that country in 2018.

In my view, the combination of those matters provided a rational probative foundation for the conclusion that there was a risk that Mr Doshi would engage in criminal conduct in Australia in the event he was allowed to enter Australia.

49    Accordingly, the applicant fails on ground 3.

Ground 4

50    This ground focuses on the statement in the s 7031(c) memorandum, relating to the public designation:

Given the severity of Mr Doshi’s corruption and his familial connections to Australia, we would like to encourage the government of Australia to take similar visa actions against Doshi himself.

(the statement)

51    It was submitted that a reasonable lay observer might reasonably apprehend that the Minister might not have brought an impartial mind to the resolution of the question to be decided, in circumstances where:

(a)    Australia and the United States are close allies and cooperate closely in the national security area;

(b)    the United States made a decision that rendered Mr Doshi ineligible for entry into that country and, critically, the United States specifically “encourage[d] the government of Australia to take similar visa actions against [Mr Doshi]”;

(c)    the Minister did not ask the United States for the material on which it relied for its decision, or inquire as to any aspect of its decision-making process; and

(d)    the Minister did not specifically disavow any reliance on the urging of its ally in his reasons for decision.

52    It was submitted in those circumstances, a fair-minded lay observer might think that the Minister, in assessing the probative value of the US material and deciding what weight (if any) to place on the US material in making his own evaluative assessment as to whether Mr Doshi had engaged in corrupt conduct and/or whether to inquire further as to the evidentiary basis of the US decision, might have been influenced by the close relationship between Australia and the United States, and have thereby deviated from an independent evaluation of the probative value of the US material in discharging the function vested in him.

53    The Minister argued that Mr Doshi’s submissions focussed impermissibly upon the reasons articulated by the Minister for his decision, rather than on the antecedent process and circumstances: Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 (Michael Wilson & Partners) at 446–7 [67] per Gummow A-CJ, Hayne, Crennan and Bell JJ. It was argued further that the test of whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is one which must necessarily be considered in the legal, statutory and factual contexts in which the decision is made. Here, it was argued, the context included “the not insignificant matter that the Minister had already made a decision to cancel the applicant’s visa (this occurred on 11 June 2015), well before the United States made its public designation in respect of the applicant (this occurred on or about 16 April 2018) and made representations to Australia concerning the applicant”. For the reasons that follow, I reject both submissions.

54    The test for apprehension of bias whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question the decision-maker is required to decide: Michael Wilson & Partners at 437 [31] per Gummow A-CJ, Hayne, Crennan and Bell JJ; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 (CNY17) at 153 [56] per Nettle and Gordon JJ, 164 [132] per Edelman J. The test is forward-looking and requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners at 446 [67] per Gummow A-CJ, Hayne, Crennan and Bell JJ.

55    Establishment of an apprehension of bias on the part of the Minister thus involves three steps. First, the identification of what it is that might have led the Minister to make a decision otherwise than on an independent and impartial evaluation of the merits. Secondly, a logical connection must be articulated between what is identified and how that might have led the Minister to make a decision under s 501C(4) of the Act, otherwise than on an independent and impartial evaluation of the merits. Thirdly, an assessment of whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In taking that third step, “it is the court's view of the public’s view, not the court’s own view, which is determinative”: CNY17 at 147 [21] per Kiefel CJ and Gageler J.

56    Applying those principles, there are five matters which direct the conclusion that a fair-minded lay observer might reasonably apprehend that the Minister might not have brought an impartial and independent mind to his decision not to exercise his power under s 501C(4) of the Act to revoke the cancellation of Mr Doshi’s visa.

57    First, the fair-minded lay observer would have known that the statement appeared in material which Department of Home Affairs obtained from the US Department of State and would have known that the Department of Home Affairs considered that material to be relevant to the question of whether or not Mr Doshi passed the character test as set out in s 501(6)(b) of the Act.

58    Secondly, the statement was adverse and highly prejudicial to Mr Doshi in referring to “the severity of Mr Doshi’s corruption” and encouraging the Australian Government to cancel his visa.

59    Thirdly, the fair-minded lay observer might reasonably interpret the statement as conveying the opinion of the US Department of State about the revocation of the cancellation decision.

60    Fourthly, the fair-minded lay observer might reasonably have expected the Minister to be influenced by the statement, either directly or indirectly, in deciding whether or not Mr Doshi satisfied him that he passed the character test in s 501(6) of the Act.

61    Fifthly, although concern about the statement was raised in the submissions on Mr Doshi’s behalf pursuant to the invitation to make representations in response to the US and other material and, moreover, although the claim of apprehended bias was clearly raised, there was no express or implicit disavowal by the Minister that he had any regard to the statement, nor did he say that he had not taken the statement into consideration in his decision making process.

62    In these circumstances, I consider that the fair-minded lay observer might well apprehend bias on the part of the Minister in his decision-making process.

63    Finally, whilst the Minister had made an earlier decision to cancel Mr Doshi’s visa before the US Department of State made the statement to the Department of Home Affairs, that cancellation decision was based upon different material. Thus, the fact that there was a prior adverse decision has no objective relevance to the question of whether there was a reasonable apprehension of bias on the part of the Minister.

Conclusion

64    Mr Doshi has succeeded on ground 4 only. I will hear from the parties as to the form of orders which should be made.

Associate:

Dated:    22 July 2020