Federal Court of Australia

AFX17 v Minister for Home Affairs [2022] FCA 56

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondents’ costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    On 28 October 2020, the first respondent (Minister) decided under s 501A(2) of the Migration Act 1958 (Cth) (the Act) to set aside a decision of the Administrative Appeals Tribunal (the AAT) and to refuse to grant the applicant a Safe Haven Enterprise (Class XE) visa. This is an application for judicial review of that decision. The applicant seeks orders quashing the decision and requiring his visa application to be determined according to law.

Background and history

2    This proceeding has a long history.

3    The applicant grew up in Iran. He fled Iran because he had an illicit relationship with a married woman, for which he received threats from her family. Upon arrival in Australia in July 2013, he was held in immigration detention until he was granted a bridging visa the following month.

4    In early 2016, while living in Melbourne, the applicant committed two sexual offences. The first offence occurred in January 2016, while he was teaching a piano lesson to a female student. He was convicted of sexual assault and sentenced to an 18-month community corrections order on 7 March 2017. The second offence occurred in March 2016, when a woman attended his house in response to a false job advertisement that he had published. He was again convicted of sexual assault and sentenced to an 18-month community corrections order on 3 August 2016.

5    On 1 December 2016, the applicant’s bridging visa was cancelled and he was returned to immigration detention. His two community corrections orders were later converted to fines, which the applicant paid, because he was unable to comply with the orders while in detention.

6    On 19 December 2016, the applicant applied for a Safe Haven Enterprise (Class XE) visa. This is the application with which this proceeding is concerned.

7    On 8 August 2018, a delegate of the Minister refused the visa application, because the delegate found that the applicant did not pass the character test by reason of s 501(6)(d)(i) of the Act.

8    The applicant applied for review of the delegate’s decision in the AAT. On 23 October 2018, the AAT found that the applicant did pass the character test, set aside the delegate’s decision and remitted the visa application to the Minister for redetermination. See HBDV and Minister for Home Affairs (Migration) [2018] AATA 4409.

9    More than a year later, the applicant’s visa application was still outstanding. On 10 December 2019, he commenced a proceeding in this court seeking a writ of mandamus to compel the first and second respondents to consider and determine his visa application.

10    The next day, the Department of Home Affairs sent the applicant a Notice of Intention to Consider Refusal (NOICR) to grant the visa under s 501A(2). The NOICR invited him to comment on “the information which indicates that [the applicant] may not pass the character test”, including, among other things, four documents relating to his two convictions:

Documents included at Attachment 7 contain information that appears to suggest that you do not pass the character test because in the event you were allowed to remain in Australia, there is a risk that you would engage in criminal conduct in Australia. These documents include:

•    Your National Police Certificate dated 8 December 2017

•    Community Correction Order dated 7 March 2017

•    Payment Slip of Statement of Fines and Penalties imposed with payment due date of 27 August 2017

•    Email from First Constable of Broadmeadows Police Station dated 29 November 2016

11    On 19 November 2019, the second respondent requested the Department of Home Affairs to prepare a submission for consideration of visa refusal under s 501A(2). The Minister received this on 13 February 2020.

12    On 25 February 2020, the Minister decided to refuse to grant the visa under s 501A(2)(a). The applicant’s judicial review proceeding had not yet advanced to a hearing, so he amended his originating application to challenge the new refusal decision. Ultimately, the parties agreed that the Minister’s 25 February decision was affected by jurisdictional error because the applicant was denied procedural fairness (because an adverse finding relied upon by the Minister was not put to the applicant), and on 26 March it was quashed by consent.

13    On 19 May 2020, the applicant commenced a second proceeding, again seeking a writ of mandamus to compel the first and second respondents to determine his visa application. He also sought a declaration that they had failed to make that determination within a reasonable time.

14    On 27 May 2020, the Minister asked the Department of Home Affairs to prepare a submission on whether he should refuse to grant the visa under s 501A(2) of the Act.

15    On 2 June 2020, the Department of Home Affairs sent the applicant another NOICR informing him that the Minister would personally consider whether to refuse granting the visa under s 501A(2). This NOICR again invited the applicant to comment upon documents relating to his criminal convictions:

Documents at Attachment 7 contain information that appears to suggest that you do not pass the character test because in the event you were allowed to remain in Australia, there is a risk that you would engage in criminal conduct in Australia. These are:

•    National Police Certificate dated 8 December 2017

•    Community Correction Order commencing 14 June 2017

•    Statement of Fines and Penalties imposed on 30 May 2017

•    Email of 29 November 2016 from First Constable, Broadmeadows Police Station (redacted)

16    At this time, BAL19 v Minister for Home Affairs [2019] FCA 2189; (2019) 168 ALD 276 (Rares J) (BAL19) was authority for the proposition that the Minister could not rely on s 501A(2) of the Act to refuse to grant a protection visa, although the decision was subject to a notice of appeal by the first and second respondents.

17    This court then heard the applicant’s second judicial review proceeding. On 10 June 2020, the court declared that the first and second respondents had failed to determine the applicant’s visa application within a reasonable time. See AFX17 v Minister for Home Affairs [2020] FCA 807. Justice Flick held (at [28]) that it was not open to the respondents to unlawfully administer the law contrary to the decision in BAL19, regardless of their assessment of their prospects of success on appeal.

18    A few days later, the first and second respondents appealed from the judgment of Flick J. They informed the applicant that no decision would be made on his visa application until that appeal had been finalised because making such a decision would render the appeal moot.

19    The applicant then applied for an order requiring the Minister to determine his visa application according to law. On 17 June 2020, in AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858, Flick J made the following order:

On or before 4.00pm on 26 June 2020 the First Respondent is to make a decision in respect to the Applicant’s application for a Safe Haven Enterprise (Class XE) visa made on or about 19 December 2016 on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower the refusal of the application.

20    The next day, the first and second respondents filed an application for a stay of that order.

21    On 23 June 2020, BAL19 was overruled by the Full Court in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1 (KDSP) (Bromberg, O’Callaghan and Steward JJ).

22    The following day, in AFX17 v Minister for Home Affairs (No 3) [2020] FCA 890, Flick J varied the 17 June order at [19] above as follows:

Order 1 as made on 17 June 2020 is varied such that:

(a)    the time within which a decision is to be made is extended to midday on 3 July 2020; and

(b)    there is deleted from Order 1 the words ‘on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower the refusal of the application’.

23    On 26 June 2020, the court refused the first and second respondents’ application for a stay of Flick J’s 17 June order (as varied). See Minister for Home Affairs v AFX17 [2020] FCA 903 (White J). The Minister’s lawyers notified the applicant later that day that the Minister was on leave. They sought the applicant’s consent to an order to allow a decision on his visa application to be made by another minister.

24    On 2 July 2020, with the consent of the applicant, the court again varied the 17 June order such that the decision to be made on the applicant’s visa application could be made by the first respondent Minister or “by another portfolio Minister or a lawfully authorised delegate”. See AFX17 v Minister for Home Affairs (No 4) (2020) 279 FCR 170 (Flick J). The court’s orders noted an assurance given by the Minister “that the orders as sought to be varied permit[ted] adequate time in which proper and adequate consideration [could] be given” to the visa application.

25    Later that day, the third respondent received submissions prepared by the Department of Home Affairs on whether to refuse the applicant’s visa application under s 501A(2). On the same day, the third respondent (acting in place of the Minister) refused to grant the applicant’s visa under s 501A(2)(a). The third respondent’s statement of reasons recorded that he “reasonably suspects that there is a risk [the applicant] will engage in criminal conduct if allowed to remain in Australia”, and that the applicant therefore did not pass the character test “by virtue of s 501(6)(d)”.

26    The applicant again commenced a proceeding, seeking to have the third respondent’s decision of 2 July 2020 quashed. The court quashed the decision by consent on 15 September. The court’s orders noted that the respondents had conceded that the decision was affected by jurisdictional error because the applicant was denied procedural fairness.

27    On 16 September 2020, the applicant received another NOICR. This relevantly contained an identical paragraph to the one appearing in the 2 June 2020 NOICR inviting the applicant to comment on the four documents relating to his criminal convictions (at [15] above).

28    On 22 October 2020, the Minister received submissions prepared by the Department of Home Affairs on whether to refuse the applicant’s visa application under s 501A(2).

29    On 28 October 2020, the Minister refused to grant the applicant’s visa under s 501A(2). It is this third s 501A(2) decision which is challenged in this proceeding.

The Minister’s reasons

30    The Minister’s reasons are set out under three main headings: “Character test”, “National interest”, and “Other considerations”. The relevance of this structure will become apparent in the consideration of ground 4 below.

31    Under s 501A(2)(a), when (relevantly) the AAT has previously decided not to refuse to grant a visa under s 501(1), the Minister may set aside the AAT’s decision and refuse to grant a visa if the Minister reasonably suspects that the person does not pass the character test, the person does not satisfy the Minister that they pass the character test, and the Minister is satisfied that the refusal is in the national interest.

32    Section 501(6) defines when a person will not pass the character test. In this proceeding, as the Minister identified in his reasons, the relevant limb of the character test is s 501(6)(d), which provided:

501    Refusal or cancellation of visa on character grounds

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

…

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;

…

33    In the Minister’s reasons, under the heading “Character test”, he referred to the applicant’s past criminal conduct (the two convictions for sexual assault) and his future risk of engaging in criminal conduct in Australia. The Minister found that if the applicant were allowed to remain in Australia, there was a risk that he would engage in criminal conduct. Accordingly, the Minister concluded that he reasonably suspected that the applicant did not pass the character test, and he had not satisfied the Minister that he passed the test.

34    The Minister then turned to the question of “National interest”, and considered the applicant’s criminal conduct (including the seriousness of that conduct), his risk of reoffending, and the expectations of the Australian community. Relevantly to ground 4, the Minister referred to Australia’s international obligations under the heading “Expectations of the Australian community”, including as follows (emphasis added):

58.    In having regard to the Decision Record of 23 October 2018, I note that the AAT considered that if all the relevant details were taken into account, including [the applicant’s] family and social supports, his minimal risk of reoffending, and his sexual offences being at the lower end of the spectrum, the Australian community would not expect that he be denied a visa.

59.    I have considered Ms Battisson’s [the applicant’s legal representative] submission that ‘it is highly unlikely that the Australian community would desire [the applicant], who has been found to be owed protection obligations and has an Australian citizen wife with a strong support network, to be detained for an indefinite period of time’. She further states that this is particularly so given [the applicant] ‘arrived in Australia as a young man and still has the time and opportunity to contribute to the Australian community through employment and volunteering’.

60.    I note that Ms Battisson also submits that ‘the Australian community would not expect Australia to breach its international treaty obligations by refusing a grant [sic] a visa in a situation in which [the applicant] faces indefinite detention.’ I have also had regard to her submissions that Australia is already in breach of its obligations to [the applicant] with regard to various Articles of the United Declaration of Human Rights, Refugee Convention, and the International Covenant on Civil and Political Rights.

61.    Otherwise, I consider that the expectations of the Australian community are about whether non-citizens who have committed serious offending should be granted a visa. I do not consider that refusing to grant the visa in such a case is of itself a breach of any of Australia’s international obligations.

62.    [The applicant’s] claims of harm upon return and international non-refoulement obligations, and matters raised of prolonged detention, are addressed below under ‘International non-refoulement obligations’.

63.    Although I accept that differing views are held within the Australian community, I find that the broader Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia, it may be appropriate to refuse to grant a visa to such a person. [The applicant] has breached this trust as he has been convicted of offences of a sexual nature.

64.    I took into account [the applicant’s] criminal conduct, that the seriousness of his offending escalated over a short period of time to involve significant planning and deceit, that he was assessed as a medium risk of further offending, and the community’s concern regarding sexual offending against women and the resultant harm that such conduct has the potential to cause to community members. I concluded that the Australian community, in the main, would expect that [the applicant] was not granted a visa.

35    The Minister then concluded at [65], “having regard to the above”, that it was in the national interest to refuse to grant the visa.

36    Finally, the Minister referred to some additional matters under the heading “Other considerations”. This included a section entitled “International non-refoulement obligations”, in which the Minister accepted that the applicant was a person in respect of whom Australia had international non-refoulement obligations, and that his removal to Iran would breach those obligations. The Minister considered that “any removal of [the applicant] in breach of Australia’s non-refoulement obligations would have serious implications not only for [the applicant] as an individual in terms of the risk of harm that he faces, but also for Australia in terms of its international standing and reputation”, which weighed “in favour of non-refusal” of the visa application.

37    However, the Minister ultimately decided to exercise his discretion to set aside the AAT’s decision and refuse to grant the visa application, concluding as follows:

107.    I reasonably suspect that [the applicant] does not pass the character test by virtue of s501(6)(d). Also, I am satisfied that the refusal to grant [the applicant’s] visa is in the national interest.

108.    In considering whether or not to set aside the original decision and refuse to grant [the applicant’s] visa, I gave primary consideration to the best interests of [the applicant’s] niece, [name redacted] and have found that her best interests would be best served by not refusing the visa.

109.    I also considered the risk posed to the Australian community by [the applicant’s] continued presence in Australia, taking into consideration his past criminal conduct, which involved sexual offences.

110.    [The applicant] has committed serious crimes of sexual assault. Non-citizens such as [the applicant] who commit such offences should not generally expect to be permitted to remain in Australia.

111.    I find that the Australian community could be exposed to harm should [the applicant] commit further sexual offences. I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm. I also find that the Australian community would expect [the applicant’s] visa application to be refused.

112.    I found the above considerations outweighed the countervailing considerations in [the applicant’s] case, including the best interests of the affected child treated as a primary consideration, non-refoulement obligations and the real risk of harm faced upon return, the impact on [the applicant] of prolonged or indefinite detention, and the hardship to be endured by his family members and social networks, in particular his wife, [name redacted]. I have also considered the length of time [the applicant] has made a positive contribution to the Australian community.

113.    I find that the above considerations favouring not setting aside the original decision and refusing to grant [the applicant’s] visa are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the original decision and refuse to grant [the applicant’s] application for a Safe Haven Enterprise (Class XE) visa under s501A(2) of the Act.

The applicant’s grounds of review

38    There are four grounds to the applicant’s challenge to the Minister’s 28 October 2020 decision. While the particulars to these grounds are lengthy, they predominantly consist of recitals of facts and it is not necessary to set them out in full.

39    By ground 1, the applicant alleged that the Minister’s exercise of the s 501A(2)(a) power was not authorised, because it was not open to him to “re-exercise” the power by reference to the same facts and circumstances that gave rise to the first and second refusals under s 501A(2).

40    Ground 2 contended that the Minister’s decision was vitiated by a reasonable apprehension of bias and that he approached the visa application with a “closed mind” such that the only decision that would realistically be made was refusal. In support of this ground, the particulars listed out matters which:

(1)    focussed on the fact that the applicant’s visa application had been twice refused under s 501A(2) before the third impugned decision;

(2)    referred to the fact that the NOICRs sought the applicant’s comments in relation to documents which had formed the basis of earlier decisions; and

(3)    referred to the fact that the Minister, in making the 28 October 2020 decision, received submissions from the Department of Home Affairs which were substantially the same as those provided to the third respondent prior to making the 2 July 2020 decision.

41    By ground 3, the applicant contended that the Minister’s decision was legally unreasonable by reference to the facts and history of the matter because of:

(1)    the first and second respondents’ failure to make a decision within a reasonable time;

(2)    the first and second respondents’ refusal to give effect to the principle in BAL19 and the orders and judgment in AFX17 v Minister for Home Affairs [2020] FCA 807;

(3)    the first and second respondents delaying a decision until KDSP was handed down;

(4)    the Minister’s lack of candour in failing to disclose to the court the reason and timing of his leave and unavailability, which were matters relevant to the issues in dispute in AFX17 v Minister for Home Affairs [2020] FCA 807 and to the question of whether or not to make any further orders relating to proceedings to which the applicant was a party; and/or

(5)    the Minister repeatedly attempting to, or purporting to, exercise the power in s 501A(2) against the applicant.

42    Finally, ground 4 contended that the Minister “erred by failing to consider Australia’s international non-refoulement obligations to other countries … in assessing whether it was in the ‘national interest’” to refuse to grant the visa under s 501A(2)(a).

Ground 1

43    By ground 1, the applicant contended that it was not open to the Minister to re-exercise the power in s 501A(2) to refuse his visa application in circumstances where the first and third respondents had already twice purported to exercise that power (on 25 February and 2 July 2020) by reference to the same facts and circumstances, namely, those concerning his two sexual assault convictions.

44    In support of this proposition, the applicant relied on Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 95 ALJR 117 (Makasa). In Makasa, the respondent, Mr Makasa, had been granted a permanent residence visa. Mr Makasa was convicted of four offences in 2009, one of which was set aside on appeal.

45    There were relevantly three purported decisions concerning his visa. First, a delegate of the appellant, the Minister for Immigration and Border Protection, exercised the power in s 501(2) to cancel the visa, suspecting that Mr Makasa failed to pass the character test because of the sentences imposed in respect of the convictions. Secondly, the AAT re-exercised the s 501(2) power to set aside the delegate’s decision and substitute a decision that the visa should not be cancelled. Thirdly, after Mr Makasa was convicted of two further offences in 2017, the appellant purported to exercise the s 501(2) power once more. In doing so, the appellant found that Mr Makasa failed the character test because of the same convictions relied upon by the delegate, although in the exercise of his discretion, he took into account the later convictions.

46    The High Court held that it was not open for the appellant to re-exercise the power in s 501(2) in circumstances where there had been no change to the factual basis on which the previous decision maker had formed a reasonable suspicion that the visa holder did not pass the character test.

47    Although Makasa involved the exercise of power under s 501(2), the applicant submitted that the same conclusion should apply to the relevant provision in this case, s 501A(2). In support of this proposition, the applicant relied on the decision in VQAR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 900 at [8]–[14] (Heerey J) (VQAR).

48    In VQAR, the applicant’s application for a spouse visa was refused by a delegate of the relevant Minister at the time under s 501. The AAT set aside the delegate’s decision and ordered that the matter be reconsidered. Subsequently, the Minister, under s 501A(2), decided to set aside the AAT’s decision and refuse the application. The applicant sought judicial review of that decision but was unsuccessful, and an application for special leave to appeal to the High Court was dismissed. After the High Court’s decision, the applicant wrote to the Minister, seeking reconsideration. The Minister responded that there was no reason to reconsider the case, after which the applicant sought a declaration that the Minister did have such ability to revisit, reconsider, and set aside the earlier decision.

49    It was in this context that Heerey J found at [9] that “[i]nsofar as s 501A(2) confers a power, it is only a power to set aside a decision. Once that power is exercised, it would be obviously absurd to speak of the power being exercised again and again”.

50    The applicant also sought to rely on Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 (which Heerey J cited with approval in VQAR) in which the applicant, having been refused his visa, requested that the Minister reconsider the refusal in light of new information. French J found that “[w]hile it may be accepted that a power to reconsider a decision made in the exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity. And in the context of the Migration Act as it presently stands … I do not consider, in the absence of clear words, that it would be proper to imply such a power”.

51    The respondents contended that the “simple answer” is that, unlike Makasa, VQAR or Sloane, this case does not involve a “re-exercise” of the power in s 501A(2), because the earlier purported decisions were set aside by the court and do not constitute decisions at all (citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 616 [53] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 646 [152] (Hayne J); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ)).

52    I accept the respondents’ submission. The lack of any previous legally effective decision immediately distinguishes this case from Makasa, VQAR and Sloane. In both VQAR and Sloane, there had been no quashing of the relevant decisions and the question of re-exercise only arose in the context of the visa applicant requesting the Minister to reconsider an application in light of an earlier refusal. And in Makasa, while the AAT had set aside the relevant Minister’s decision, it had substituted its own decision under s 501(2) such that a legally effective decision still existed.

53    Here, there was no such substitution by the court after it had quashed the Minister’s decision. Accordingly, there is no decision of the Minister which still stands and in respect of which a further decision under s 501A would be a “re-exercise” of power. In my view, there is no reason why the principles derived from those cases should apply here, where the previous purported decisions have been quashed and are to be properly regarded, in law, as no decisions at all. Where a decision is affected by jurisdictional error, as the first two decisions were here, it has no legal foundation and the statutory duty to make the decision has not been discharged. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614–16 [51]–[53] (Gaudron and Gummow JJ).

54    The High Court also observed in Makasa that the s 501A power has a different character to that of s 501(2), being a power of “ministerial override”, and as such, it “can be exercised by the Minister without need for any change to the factual basis on which the delegate or the AAT formed a reasonable suspicion that the visa holder did not pass the character test in making the decision not to cancel a visa [under s 501(2)]” (at [53]). The applicant submitted that Makasa did not concern any exercise of the power in s 501A(2) and that these comments were made against the particular factual background in Makasa. In my view, this only further highlights the very different factual scenario in Makasa which makes it an inapt analogy to the present case.

55    The applicant also submitted that Makasa made no express distinction between earlier decisions that are affected by error and those that are not, so long as there has been a previous decision made using the same power. But, again, this does not address the very different factual scenario that I have described above.

56    The applicant also submitted that the fact that the previous s 501A(2) decisions were affected by jurisdictional error did not necessarily mean they had no consequences, citing Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 (Jadwan) at 16 [42], 22 [64] (Gray and Downes JJ, Kenny J agreeing). The applicant submitted that the preferable view is that, once the Minister had in fact made a decision under s 501A(2), he was prohibited from re-exercising that power unless subsequent events or further information provided a different factual basis on which to form a reasonable suspicion that the applicant did not pass the character test. The applicant submitted that:

This is because while decisions under the Act are treated as having legal effect until set aside by Order of a Court, the text of the Migration Act 1958 reveals that Parliament intended for certain consequences of a decision to refuse a visa under s.501A(2)(a) of the Act to survive the making of any such Order of a Court. For example, a person in Australia without a valid visa is an ‘unlawful non-citizen’: ss.13 and 14. Unlawful non[-]citizens are required to be detained and removed as soon as reasonably practicable, and any such detention is to continue until they are either removed or a visa is granted: ss.189, 196(1) and 198. In the case of a protection visa applicant, there are [sic] also a statutory prohibition on applying for another visa after they have been the subject of a refusal under s.501A: see for example, s.48A and s.501E.

57    The applicant sought to rely on the following passage from Jadwan at [42]:

In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute.

58    Jadwan does not assist the applicant. It involved an entirely different legislative regime and factual scenario about regulation of nursing homes. In Jadwan, the appellant owned premises which were approved as a nursing home under the National Health Act 1953 (Cth), a consequence of which was that the appellant was entitled to receive certain Commonwealth benefits. That approval was revoked, but the revocation decision was then set aside. In 1997, the approval system changed, such that the question before the Full Court was whether the decision to revoke the approval had no effect for the purposes of certain transitional provisions.

59    The passage in Jadwan at [42] emphasised that the reasoning in Bhardwaj was prefaced on an exercise of statutory construction. Accordingly, their Honours in Jadwan focussed on what was revealed by the text of the National Health Act, concluding at [49] that the decision to revoke the approval “could not be ignored for all purposes”, because “[n]othing in the scheme of the National Health Act at the time required that that be done”.

60    By contrast here, it is not clear how the provisions advanced by the applicant “reveal” Parliament’s intention for “certain consequences of a decision to refuse a visa under s 501A(2)(a) to survive”. The provisions highlighted by the applicant concern, broadly speaking, an applicant’s inability to apply for a further visa if their application is refused or visa cancelled, or the requirement for unlawful non-citizens to be removed from Australia. But the earlier (now quashed) decisions to refuse to grant a visa under s 501A did not change the fact that the applicant did not, and does not, have a valid visa. The “consequences” of the Act, such as the applicant’s ongoing detention, are not ones that were created by the earlier purported decisions under s 501A(2) which have “survived” the court’s orders to quash those decisions. They are rather a result of the cancellation of the bridging visa in 2016.

61    Accordingly, ground 1 fails.

Ground 2

62    By ground 2, the applicant alleged that the decision was affected by the Minister’s reasonable apprehension of bias.

63    The test for whether there is a reasonable apprehension of bias is whether a hypothetical, fair-minded lay person might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question for decision. See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) at 344–345 [6]. As the High Court said in Ebner at 345 [7]–‍[8], this is a question of possibility, not probability, and involves two steps:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

64    The applicant submitted that “it is apparent from the procedural and factual history of this case that the first respondent approached the applicant’s visa application with a mind that was not open to persuasion”. He submitted that the NOICR issued on 16 September 2020 was an “empty gesture on the way to a predetermined outcome”, because it asked him to comment on “matters and documents which had already been the subject of previous comments and two decisions made pursuant to s 501A(2) within the course of less than one year”.

65    The applicant also submitted that the “totality of the circumstances indicate that the first respondent approached the applicant’s visa application with a closed mind such that the only decision that would realistically be made … was a refusal”. The applicant identified five matters which he submitted would lead the hypothetical lay observer to apprehend that the Minister might not have approached the decision making process with an open mind:

(1)    at all material times, the Minister who sought to exercise the power under s 501A(2) against the applicant was the first respondent, the office of which was at all material times occupied by the Honourable Peter Dutton;

(2)    section 501A(2) could only be exercised by the Minister personally;

(3)    the Minister issued two NOICRs within a short span of time, such that there were no material changes in the applicant’s circumstances that could be the subject of any meaningful submissions in response;

(4)    the Minister’s conduct in delaying the processing of the visa application between December 2019 and June 2020 and expressing an intention to refuse to give effect to the principle in BAL19 in the hopes that it would be overturned on appeal; and

(5)    the Minister’s conduct in causing NOICRs to be issued on 2 June 2020, while court proceedings for unreasonable delay were on foot, and on 16 September 2020, one day after Mortimer J made orders by consent quashing the second s 501A(2) decision.

66    In my view, and as counsel for the respondents submitted in his oral address, what was lacking was an answer to the second question in Ebner, being a clear articulation of how each of the five matters identified by the applicant might have led the Minister to make his decision otherwise than on the merits.

67    The power to be exercised was a personal one (as the applicant himself submitted), and it is not to the point that, incidentally, the same individual held the office of the Minister at all relevant times. The first two “matters” identified are simply consequences of the operation of the Act. And it also does not necessarily follow that the two earlier decisions (which were quashed) having resulted in the same outcome meant that the Minister’s mind was not open to persuasion. A mere disposition or inclination to a particular view does not give rise to a reasonable apprehension of bias. See Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531–532 [71]–[72] (Gleeson CJ and Gummow J). As the respondents submitted, it is difficult to conceive of how else the decision could have been made, if not made by the Minister responsible for administration of the Act.

68    It should be noted that the second s 501A(2) decision was, due to the Minister’s leave arrangements, made by the third respondent. The applicant submitted that this was not a “complete defence” to the first matter above. This is irrelevant in any event, because, as I have explained, the identity of the individual making the decision is merely a consequence of the administration of the Act.

69    And the applicant’s submission that the Minister’s conduct in issuing the NOICRs in such a short space of time, so that there could be no change to the applicant’s circumstances, is also irrelevant. It was not for the Minister to await any change in circumstances, the earlier refusals of the visa application having been quashed. The applicant’s submission that the invitation to comment was an “empty gesture” was also a mere assertion and nothing further was advanced to support this. Counsel for the applicant in her oral address also submitted that the content of the NOICRs said, in effect, “I am going to refuse your visa; convince me otherwise”. However, as counsel for the respondents submitted, the NOICRs simply reflected the scheme of the Act in indicating to the applicant the matters which supported a conclusion that he failed the character test, and providing him the opportunity to respond to those matters to afford him procedural fairness (as required under s 501A(2)).

70    As to the remaining two aspects of the Minister’s conduct (his delay because he hoped that BAL19 would be overturned on appeal and later progressing the matter while other court proceedings were ongoing), some unsatisfactory conduct on the part of the Minister does not by itself raise the possibility that a reasonable lay person would apprehend that the Minister might not have brought an impartial mind to his decision making.

71    Paragraph (f) of the particulars to ground 2 also alleged that the Minister received submissions prepared by the Department of Home Affairs on 22 October 2020 that were substantially the same as an earlier submission sent to the third respondent prior to the making of the 2 July 2020 decision. The applicant did not make any further submissions in relation to this, but in any event, the contention is again based on the incorrect assumption that there had to be any new information or change in circumstances before a decision under s 501A(2) could be made.

72    As the respondents submitted, it was for the applicant firmly to establish a reasonable apprehension of bias. See R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553–554; Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at 135–136 [20], 158 [90]. There is no basis to found a conclusion that the Minister’s mind was closed or not otherwise open to persuasion.

73    Accordingly, ground 2 fails.

Ground 3

74    By ground 3, the applicant submitted that the Minister’s 28 October 2020 decision was legally unreasonable. He submitted that this was evident because:

(1)    the first and second respondents refused to give effect to the judgment of the court in AFX17 v Minister for Home Affairs [2020] FCA 807 and the law as it then was;

(2)    the Minister failed to disclose to the court the “reason and timing of his leave and unavailability” (citing AFX17 v Minister for Home Affairs (No 4) (2020) 279 FCR 170); and

(3)    the history of this matter, including the timing and frequency of the repeated attempts to exercise the power in s 501A(2), “was a course of conduct that no other reasonable person would have adopted”, citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 550–551 [10] (Kiefel CJ).

75    The respondents submitted that this ground must be rejected because all of the circumstances on which the applicant relied in support of it pertained to earlier purported decisions. They submitted that the applicant had already received remedies for the deficiencies in the earlier purported decisions, and that those deficiencies, which related to procedural fairness and delay, could not now sensibly bear on the reasonableness of the decision under review.

76    However, the applicant submitted that the decision under review could not be divorced from the procedural and factual history which preceded it, for the following reasons:

(1)    had the Minister administered the law in accordance with the principle in BAL19, it would not have been open to him to make the first decision on 25 February 2020, or to issue the NOICR on 2 June 2020;

(2)    Ministers of the Crown are expected to be model litigants (citing Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342) and the Minister, having given an assurance to the court on 2 July 2020 that “the orders as sought to be varied permit adequate time in which proper and adequate consideration can be given to the application made by the Applicant for a Safe Haven Enterprise (Class XE) Visa”, was expected to make a decision free of jurisdictional error, but the second decision was affected by jurisdictional error and quashed; and

(3)    had the second decision been free of jurisdictional error, there would not have been any need for the applicant to seek judicial review and remain in enclosed immigration detention for a prolonged period of time because he would have been removed from the country.

77    Ground 3 fails because the alleged unreasonableness was entirely related to the earlier decisions, for which the applicant has already sought and obtained relief. And while the applicant highlighted in his submissions the consequences of a purported decision having been made twice, only to then be quashed, these consequences, while unfortunate and no doubt the source of distress to the applicant, do not themselves found any legal unreasonableness in the decision under review in this proceeding.

78    I also accept the respondents’ submission that the applicant’s contention means that he would be placed on “an island of immunity” from the operation of the Act because the Minister would be prohibited from exercising the s 501A(2) power against him (which the applicant also accepted, but submitted that this was caused by the Minister’s own conduct in acting unreasonably). If I were to accept the applicant’s submission, any further decision under s 501A(2) in respect of the applicant’s visa application would, regardless of the circumstances, fall into jurisdictional error because of past conduct. That cannot be the case.

79    The applicant’s complaint is levelled at the entire “course of conduct” throughout the history of his visa application (some of which, as discussed, has already been the subject of litigation), not just in this proceeding. However, he has failed to articulate what it is about this decision that is unreasonable.

80    For those reasons, ground 3 also fails.

Ground 4

81    Ground 4 alleged that the Minister erred in his assessment of whether refusing to grant the applicant a visa was in the “national interest” by failing to consider Australia’s non-refoulement obligations.

82    Ground 4 relied on the decision in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 (CWY20) (Allsop CJ, Kenny, Besanko, Kerr and Charlesworth JJ), in which the Full Court upheld the decision of Griffiths J in CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 62.

83    At the time of the hearing of this proceeding, the Full Court had reserved its decision. The respondents formally submitted that Griffiths J’s decision was wrongly decided, but in any event, the parties agreed at the hearing that any decision in this proceeding should await the Full Court decision.

84    After the Full Court’s judgment was handed down on 9 November 2021, I made orders that the parties file brief submissions to address its impact by 17 December 2021, and the parties did so. At the time of filing submissions, the Minister had sought special leave to appeal to the High Court, which has yet to be decided. The respondents submitted that “one possible way of proceeding would be to defer judgment in this matter until it is known whether the High Court will grant special leave”. However, they also submitted that “it may not be necessary to consider that possibility, because the respondents also submit that CWY20 is distinguishable”.

85    The applicant submitted that further deferral of the resolution of this proceeding would not be appropriate. In light of the respondents’ position that CWY20 is, in any event, distinguishable, and in circumstances where they merely raised the possibility of further deferral and made no submissions why that ought be so, there is no good reason demonstrated not to proceed.

86    The applicant’s primary contention was that CWY20 stood for the proposition that “the implications of Australia breaching its non-refoulement obligations … must be considered, in the assessment of whether it [is] in the ‘national interest’ to refuse to grant an applicant a protection visa, pursuant to s 501A(2)(a) of the Act”.

87    The applicant submitted that the Minister expressly accepted in his statement of reasons that removing him to Iran would be a breach of Australia’s non-refoulement obligations, yet made no mention of the implications of breaching those obligations under the rubric of “National interest”. In those circumstances, he submitted that the Minister “fell into jurisdictional error for reasons analogous to those identified … at [136]–[138]” of Griffiths J’s decision.

88    The respondents continued formally to submit that CWY20 was wrongly decided. However, in the alternative, the respondents submitted that CWY20 could be distinguished because the Minister’s consideration of the national interest in this case had the following features:

(1)    while it was “true that the Minister then gave further, separate consideration to the applicant’s claim of harm and international non-refoulement obligations in considering the exercise of the discretion”, “that reasoning was seemingly incorporated, by reference, in that part of the Minister’s reasons dealing with national interest” at [62] of the Minister’s reasons (see [34] above);

(2)    the Minister expressly engaged with the applicant’s representations (see the emphasised passages of the Minister’s reasons at [34] above;

(3)    in considering those representations, the Minister concluded “I do not consider that refusing to grant the visa in such a case is of itself a breach of any of Australia’s international obligations”, and therefore “expressly engaged with the question of whether a decision to refuse to grant the applicant a visa would breach Australia’s international obligations”; and

(4)    the Minister did not need to engage in an assessment of the reputational consequences of breaching its international obligations because he did not consider that his decision would, of itself, have such consequences and because no representations of that type were advanced by the applicant (citing MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 525 at 560 [170]).

89    In my view, the Minister did engage with the question of Australia’s international obligations, including non-refoulement, in considering the public interest, as evidenced by the emphasised passages of the Minister’s reasons at [34] above and the reference to the consideration of non-refoulement obligations at [62] of his reasons, which were set out under the heading of “National interest”. The applicant submitted that these passages were mere acknowledgements of his representations, and were not active intellectual engagement with the non-refoulement issue. I do not accept that submission. The Minister expressly said that he considered the applicant’s submissions, and made findings in relation to their contents.

90    This matter is not analogous to CWY20, in which the structure and contents of the reasons made it clear that non-refoulement obligations were not taken into account in considering national interest. In coming to a decision on the question of national interest in that case, the Minister made no reference to the implications of Australia breaching its non-refoulement obligations. Rather, in considering the national interest, the Minister considered only the severity of the relevant criminal conduct and the risk of, and possible harm caused by, the visa applicant reoffending. See CWY20 [74]; and first instance [31]–[32].

91    Although the Minister’s reasons followed a similar structure to that of CWY20, here, he expressly referred to Australia’s non-refoulement obligations under the heading of “Expectations of the Australian community” in considering the national interest. As the respondent submitted, the reasons showed that there was “plainly an understanding that non-refoulement was something that could be considered under the head of national interests”.

92    It is not to the point that the more detailed analysis on non-refoulement was contained in the “Other considerations” section where the Minister considered whether or not to exercise his discretion. The fact that the Minister considered Australia’s non-refoulement obligations in the exercise of his discretion does not mean that the same matters were not weighed in the balance in deciding the question of national interest. The reasons of administrative decision makers are not to be read so rigidly. As the High Court has repeatedly said, reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”. See, by way of example only, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

93    In contrast to CWY20, where no reference to non-refoulement obligations was made under the national interest “rubric”, here the Minister expressly referred to his consideration of such issues. As counsel for the respondents submitted in his oral address, there is a “distinct textual link” in the reasons that indicated that non-refoulement was “considered under both heads”, that is, under the rubric of the national interest and the exercise of the discretion.

94    For those reasons, I would reject the applicant’s submission that this matter is analogous to CWY20, and ground 4 accordingly fails.

Disposition

95    For the reasons above, I would dismiss the application, with costs.

Associate:

Dated:    4 February 2022