Federal Court of Australia

GFE24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 193

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

Introduction

1    The applicant has applied for judicial review of a decision of the respondent (the Minister), made under s 501BA of the Migration Act 1958 (Cth).

2    The Administrative Appeals Tribunal (the Tribunal) revoked a decision made by the Minister’s delegate under s 501(3A) of the Migration Act to cancel the applicant’s visa. The Minister’s decision was to set aside the Tribunal’s decision and cancel the applicant’s visa once again.

3    The applicant contends that the Minister’s decision is affected by jurisdictional error on the basis that the Minister impermissibly or unreasonably failed to consider the Tribunal’s reasons for its decision and that his decision is attended with apprehended bias.

4    I will discuss the factual background, the grounds of review and the legislative context before considering the parties’ submissions.

Factual Background

5    The applicant is a citizen of Papua New Guinea who is now 25 years of age. He has resided in Australia since 2017 as the holder of a Child (Class AH) (Subclass 101) visa.

6    On 29 June 2020, the applicant was convicted of one count of rape and was sentenced by the District Court of Queensland to a term of imprisonment of five years and six months.

7    On 14 June 2022, the applicant’s visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act.

8    On 17 June 2022, the applicant made representations seeking the revocation of the cancellation decision.

9    On 6 March 2024, another delegate of the Minister made a decision under s 501CA of the Migration Act not to revoke the cancellation decision.

10    On 30 May 2024, the Tribunal made a decision setting aside the decision of the Minister’s delegate under s 501CA and substituting a decision to revoke the cancellation decision. Importantly, the Tribunal did not publish its reasons for making its decision on 30 May 2024, but indicated that it would, “give written reasons for this decision within a reasonable time of the decision”.

11    On 4 June 2024, the Minister made his decision under s 501BA of the Migration Act to set aside the Tribunal’s decision and cancel the applicant’s visa. The Tribunal had not published its reasons for its decision by that time. The Minister recorded in his statement of reasons at [6] that:

…[T]he AAT is yet to publish its reasons for decision. However I have had regard to the closing written submissions prepared by the parties which address the evidence that was adduced before the AAT. Further, as a consequence of the AAT’s decision, [the applicant’s visa] was reinstated.

12    On 13 June 2024, the Tribunal published its reasons for its decision of 30 May 2024.

13    On 9 July 2024, the applicant commenced the present judicial review proceedings pursuant to s 476A of the Migration Act.

Grounds of Review

14    By way of an Amended Originating Application, the applicant advances three grounds of review:

1.    The Respondent’s exercise of his power under s 501BA(2) of the Act to set aside the favourable decision of the Administrative Appeals Tribunal is vitiated by jurisdictional error because the Respondent failed to consider the reasons for the decision of the Tribunal and thereby did not consider the Tribunal’s reasoning at all.

…

2.    The Respondent unreasonably arrived at his state of satisfaction that it was in the national interest to exercise the power under s 501BA because, in undertaking the fact finding exercise necessary to the exercise of the power:

a.    the Respondent failed to consider the whole of the material available; and

b.    further or alternatively, made findings that were not supported by some probative material or logical grounds.

…

3.    The Respondent’s Decision is vitiated by jurisdictional error as it is affected by the reasonable apprehension of bias.

Particulars

i)    In considering Dr Freeman’s evidence, the Respondent, at [33] of the Decision, stated ‘I note that there were some concerns raised about Dr Freeman’s ability to give an objective and impartial opinion, and I have approached Dr Freeman’s evidence with some caution…’.

ii)    The ‘concerns’ referred to at [33] of the Decision were matters stated in written submissions filed in the Tribunal on behalf of the Respondent.

iii)    In approaching Dr Freeman’s evidence in that way, a fair-minded lay observer might reasonably apprehend that the Respondent might not have brought an impartial mind to the Decision.

(Errors in original.)

Legislative Context

15    At the time of the Minister’s decision, s 501BA of the Migration Act provided:

Cancellation of visa-setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister-natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

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

Decision not reviewable by application under Part 5

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

…

16    The version of the Migration Act in force when the Tribunal delivered its decision on 30 May 2024 was Compilation No. 160. The Tribunal has since been replaced by the Administrative Review Tribunal and the Migration Act has been amended accordingly.

17    The power vested personally in the Minister under s 501BA has been described as “draconian”, because of its “override” nature and express exclusion of the rules of natural justice: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270 (Tereva), [14]-[15] (Mortimer J).

18    Section 501BA(2) imposes two jurisdictional facts of which the Minister must be satisfied  before the Minister’s discretion arises under that provision. As Derrington J (with whom Collier and Downes JJ agreed) explained in NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582 at [40]:

The discretionary power of the Minister under s 501BA(2) to set aside the original decision and cancel a visa is conditioned on the existence of the subjective jurisdictional facts described in paras (a) and (b) of that subsection. The first is the Minister’s satisfaction that the person does not pass the character test by reason of the operation of the enumerated provisions. … The second is the Minister’s satisfaction that cancellation of the person’s visa is in the national interest. The discretion, once enlivened, is conferred in general terms but is exercisable subject to any implied limitations that are to be found in the subject matter, scope and purpose of the Act…

19    The Minister’s power under s 501BA(2) is also conditioned upon a decision under s 501CA having been made by a delegate of the Minister or Tribunal to revoke a decision made under subsection 501(3A) to cancel the relevant visa.

20    The Tribunal’s jurisdiction to review a decision of a delegate made under s 501CA(4) of the Migration Act arose under s 25(1) of the (now repealed) Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Migration Act. The former provision provided, relevantly, that an enactment may provide that an application may be made to the Tribunal for the review of decisions made in the exercise of powers conferred by that enactment.  The latter provision provided that an applicant may apply to the Tribunal for review of a decision not to revoke a visa cancellation made by a delegate of the Minister under s 501CA of the Migration Act. Section 25(4) gave the Tribunal power to review any decision in respect of which application to it is made under any enactment.

21    Section 43 of the AAT Act set out the Tribunal’s obligation to make a decision in writing and provide reasons for its decision, as follows:

43 Tribunal’s decision on review

…

Tribunal’s decision on review

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

…

Tribunal must give reasons for its decision

(2)    Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

(2A)    Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.

(2B)    Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

…

22    It may be noted that s 43(2) of the AAT Act drew a distinction between the Tribunal’s “decision” and its “reasons” for that decision. It may also be noted that the parties were in agreement that the Tribunal’s obligation to provide reasons arose under s 43(2) rather than s 501G of the Migration Act.

23    The applicant submits that there was, pursuant to s 43(2A), a limit of up to 56-days for the Tribunal to comply with its obligation to provide reasons. However, the time limit under s 43(2A) is only triggered if a party makes a request within the initial 28-day period. It is unclear whether either party to the Tribunal proceedings made any such request to the Tribunal. Regardless of the presence or absence of a request under s 43(2A), the Tribunal was bound by s 43(2) to provide its reasons within a reasonable time: BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 at 272-273.

24    In this case, the Tribunal published its reasons some nine days after making its decision. The explanation for that delay lies in the operation of s 500(6L) of the Migration Act, which provided that if the Tribunal has not made a decision within a period of 84 days after the person was notified of the decision under review (i.e. the non-revocation decision under s 501CA), the Tribunal is taken to have affirmed the decision under review. This section effectively imposed an 84-day time limit (which commenced even before the application was filed in the Tribunal) for the Tribunal to make a decision.

25    The letter notifying the applicant of the decision of the Minister’s delegate under s 501CA was dated 7 March 2024 and the applicant appears to have been given the letter on the same day. Therefore, the 84-day period expired on 30 May 2024, the date on which the Tribunal made its decision. It was evidently the effect of s 500(6L) which influenced the Tribunal to make its decision prior to providing written reasons. In the circumstances, the Tribunal’s delayed provision of its reasons is entirely understandable.

Minister’s Decision

26    In the course of his reasons, the Minister determined that the applicant did not pass the character test by operation of s 501(6)(a) and s 501(7)(c) of the Migration Act. That aspect of the decision is not controversial.

27    The Minister then determined that it was in the national interest to cancel the applicant’s visa and that the appropriate exercise of his discretion was to cancel the visa.

28    It is unnecessary to provide an extensive summary of the Minister’s reasons for decision. However, it is relevant for the purposes of the second and third grounds to note that the Minister considered the evidence of a consultant psychologist, Dr James Freeman.

29    Dr Freeman provided a report dated 7 May 2024 to the Tribunal concerning his psychological assessment of the applicant. Dr Freeman concluded that the applicant’s risk of re-offending was in the low category. However, the Minister took issue with Dr Freeman’s evidence and made submissions that the Tribunal should approach the report “cautiously” for a number of reasons, which need not be outlined here. In its reasons, the Tribunal rejected the Minister’s submissions on this point and found that Dr Freeman was “both professional and truthful” and that the clinical findings were of “invaluable assistance”.

30    In contrast to the Tribunal, in his reasons for making the decision under s 501BA, the Minister stated:

[32]    I have taken into account the report of Dr James Freeman, Consultant Psychologist, dated 7 May 2024, which assessed [the applicant] as being in the “low-risk” category for violent and sexual recidivism and that his criminal offending can be attributed to alcohol and his young age. I have considered Dr James’ report that the offence appeared to be “impulsive” rather than a premeditated attempt to deliberately seek a sexual encounter with a nonconsenting individual.

[33]    I note that there were some concerns raised about Dr Freeman’s ability to give an objective and impartial opinion, and I have approached Dr Freeman’s evidence with some caution. I note that there appears to be some inconsistency in [the applicant’s] evidence to the AAT about his alcohol use prior to the offending. However, Dr Freeman did not ascribe any weight to this discrepancy in drawing assessments of recidivist risk.

[References to attachments omitted.]

31    One example of the Minister’s further use of Dr Freeman’s evidence in his decision, which was highlighted by the applicant in oral submissions, is as follows:

[43]    Dr Freeman appears to have expressed the opinion that notwithstanding the noncompletion of the MISOP there were no outstanding treatment needs in respect of the applicant and such a course would only serve to consolidate existing learned outcomes.

[44]    While I give weight to Dr Freeman’s assessment that [the applicant] presents a low risk of reoffending, I remain concerned that [the applicant] failed to undertake the MISOP, despite it being offered to him on more than one occasion. I have had regard to [the applicant’s] explanations and his claim that he would not hesitate to complete the course in the community, which I note was repeated in his statements to the department and the AAT, but it remains the case that he did not seek to complete the program even after the Parole Board raised concerns. I have considered the courses that [the applicant] has completed whilst incarcerated and in detention, including Alcoholics Anonymous and Drug and Alcohol Abuse 101, but note that those courses do not address sexual offending and there is limited information about ongoing engagement throughout his time in the custodial environment.

[References to attachments omitted.]

Ground 1: Failure to consider the Tribunal’s reasons

32    The applicant’s first ground of review asserts that the Minister’s decision is vitiated by jurisdictional error in failing to consider the Tribunal’s reasons for its decision and thereby failing to consider the Tribunal’s reasoning. The Minister’s decision was made on 4 June 2024, prior to the publication of the Tribunal’s reasons on 13 June 2024.

33    The applicant submits that as a matter of statutory construction and having regard to the role of the Tribunal, the Minister was required to consider the Tribunal’s reasons and reasoning. The submission is grounded in observations made in Tereva. First, Mortimer J (with whom Bromwich J agreed) observed at [28]:

… In the appellant’s written submissions there is a suggestion that the Minister, in his reasoning, needed to “rebut” the reasoning of the Tribunal. That suggestion cannot be accepted. The power in s 501BA is an override power. While it takes as its jurisdictional precondition a favourable decision of the Tribunal, there is nothing in the text, context or purpose of the provision which supports an implication that the Minister is required to “rebut” the reasoning of the Tribunal. Given the precondition, it may be an error for the Minister not to consider the Tribunal’s reasoning at all. …

(Emphasis added.)

34    Second, Thomas J (with whom Mortimer and Bromwich JJ agreed) stated, at [159]:

The very nature of a power such as that contained in s 501BA (which is to set aside the decision of the Tribunal) means that the Minister must make an independent decision taking into account all the factors (which might include the reasoning of the Tribunal) relevant to the national interest.

(Emphasis added.)

35    The applicant acknowledges that these cautiously expressed observations are obiter dicta and that I am not bound by them.

36    The Minister’s submissions emphasise that the relevant precondition for the exercise of the power in s 501BA(2) is that there is a decision under s 501CA. The Minister highlights the distinction drawn between a decision and reasons in s 43 of the AAT Act. Further, the nature of the power in s 501BA, being an “override” power, as opposed to a “review” power, is said to confirm that the reasoning for the Tribunal’s decision does not need to be considered by the Minister for there to be a valid exercise of s 501BA.

37    There are competing submissions about the effect of the judgment of the Full Court in Vargas v Minister for Home Affairs (2021) 286 FCR 387 (Vargas). The Full Court at [57]-[65] considered whether the evidence and submissions of the visa holder before the Tribunal were a mandatory relevant consideration for the Minister in making a decision under s 501BA. The Full Court held that they were not, concluding at [61]-[62]:

…[Section] 501BA does not require the Minister to have regard to any particular matter in forming a view about the national interest under s 501BA(2)(b) or in exercising the discretion in s 501BA(2)…

Consequently, failing to consider material that was before the Tribunal during the revocation process…could not, without more, go to jurisdiction.

38    The Minister submits that Vargas is at odds with the applicant’s construction of s 501BA. The applicant submits that Vargas is not applicable in the present circumstances by drawing a distinction between the evidence and submissions before the Tribunal on the one hand and the reasoning of the Tribunal on the other hand.

39    If it is to be held that consideration of the Tribunal’s reasons and reasoning is a necessary requirement for the valid exercise of the power by the Minister under s 501BA(2), such a requirement must appear as a matter of construction of the provision: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, at [14], the plurality observed that the starting point for ascertaining the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.

40    Section 501BA(1) requires that for the section to apply, there must have been “a decision under s 501CA” by a delegate of the Minister or the Tribunal to revoke a decision to cancel a visa under s 501(3A). It can be accepted that the Minister is required to consider the Tribunal’s decision in order to determine whether that condition has been satisfied. Further, s 501BA(2) confers a discretion on the Minister to set aside “the original decision”. However, s 501BA refers only to a “decision” and does not in its terms refer to the “reasons” for that decision.

41    Section 501G(1), like s 501BA, is found within Part 9 of the Migration Act. Section 501G(1) requires that when a “decision” is made under s 501BA, 501CA and other specified provisions, the Minister is to give written notice that sets out “the decision” and the “reasons…for the decision”. Accordingly, s 501G(1) makes a distinction between a “decision” and the “reasons” for that decision.

42    Section 500(1)(ba) of the Migration Act provided that an application may be made to the Tribunal for the review of a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa. The provision contemplated that the AAT Act would apply to Tribunal processes, powers and obligations, except to the extent they were excluded or modified under the Migration Act: see Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [54]-[57]. In Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, Kirby P observed at 722 that, “it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation”. Section 43 of the AAT Act forms part of the statutory context relevant to the construction of s 501BA. Sections 43(1) and (2) of the AAT Act clearly distinguish between the Tribunal’s decision and its reasons: see Khalil v Minister for Home Affairs (2019) 271 FCR 326 at [41] (Khalil).

43    Consistently with s 501G(1) of the Migration Act and s 43 of the AAT Act, when s 501BA refers to the Tribunal’s “decision”, it cannot be understood as encompassing the Tribunal’s reasons for that decision. Therefore, s 501BA(2) does not in its terms require the Minister to have regard to the Tribunal’s reasons for its decision. Nor, for the reasons that follow, does the context require that the provision should be construed as requiring the Minister to have regard to the Tribunal’s reasons.

44    The power under s 501BA is “fundamentally different” from that exercised by the Tribunal under s 501C: Vargas at [61]. In exercising the power under s 501BA, the Minister must consider the national interest, which is largely a political question: Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at [40]; Tereva at [39] (Bromwich J).  Therefore, the Minister may exercise the discretion under s 501BA for reasons that are entirely different from the reasons given by the delegate or the Tribunal for exercising the discretion to set aside the revocation decision under s 501CA. Section 501BA is an “override” power: Tereva at [28], [39]. The Minister does not “review” the decision of the delegate or Tribunal. Whereas a power to review a decision might conceivably give rise to a requirement to consider the reasons for the decision, the power under s 501BA is to override the delegate’s or the Tribunal’s decision irrespective of their reasons for that decision. The reasons of the delegate or the Tribunal could certainly be considered by the Minister, but that does not elevate the reasons to a mandatory relevant consideration.

45    Further, s 500(6L) of the Migration Act provided that if the Tribunal had not made a decision within the period of 84 days after the day on which the person was notified of the decision under review, the Tribunal was taken to have made a decision to affirm the decision. While the provision required the Tribunal to make any decision to revoke the cancellation decision within 84 days, it did not require that the reasons for the decision be provided within that time. The Tribunal was able to provide its reasons after the decision was made: Khalil at [39]-[41]. In fact, the Tribunal might in any case choose to make a decision to revoke the cancellation decision directly after the hearing (for example, so that the person can be immediately released from immigration detention) and provide its reasons later: see BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 271-273. Section 501BA envisages that the Minister may determine that the national interest requires urgent cancellation of a visa that has been restored: see Tereva at [40] (Bromwich J). Therefore, s 501BA cannot be construed as containing a mandatory requirement that the Minister must wait for and consider the Tribunal’s reasons.

46    The applicant’s argument that the Minister was required to have regard to the reasons of the Tribunal cannot be accepted. The first ground must be rejected.

Ground 2: Unreasonableness

47    The applicant’s second ground of review as articulated in the amended originating application was that the Minister unreasonably arrived at a state of satisfaction concerning the national interest under s 501BA(2)(b) by failing to consider the reasons of the Tribunal. In the applicant’s written submissions, it was put that the unreasonableness was grounded in the Minister’s failure to have regard to the Tribunal’s findings based on the oral evidence led before the Tribunal, including the evidence of a consultant psychologist, Dr Freeman.

48    However, in oral argument the applicant confined the second ground to the manner in which the Minister treated the evidence of Dr Freeman. The Minister’s reasons noted that, “there were some concerns raised about Dr Freeman’s ability to give an objective and impartial opinion”, and that the Minister had, “approached Dr Freeman’s evidence with some caution”. The asserted error is that it was unreasonable for the Minister to treat Dr Freeman’s evidence with some caution in circumstances where:

(a)    the Tribunal had made a decision to revoke the cancellation of the visa;

(b)    the Tribunal would be publishing its reasons for that decision within a reasonable time (as the Tribunal had stated it would and which was, in any event, a requirement under s 43 of the AAT Act);

(c)    the weight of Dr Freeman’s evidence was a live issue before the Tribunal; and

(d)    the Tribunal’s ultimate decision was adverse to the Minister’s position.

49    The applicant submits that the sum of these circumstances made it unreasonable for the Minister to exercise the s 501BA power by maintaining the Minister’s position before the Tribunal that Dr Freeman’s evidence raised concerns without having regard to the Tribunal’s reasons for rejecting those concerns. The applicant observes that in its reasons, the Tribunal relied upon the oral evidence of Dr Freeman, referring to his clinical findings as being of “invaluable assistance” to the Tribunal’s assessment of recidivism and alcohol use or substance abuse.

50    The Minister submits that legal unreasonableness in decision making is to be assessed at the time the power is exercised; and at the time the Minister exercised his s 501BA power, the reasons of the Tribunal were not available. It is submitted that it was not unreasonable for the Minister not to have regard to material that did not exist. The Minister also reiterates that the Minister was not required to consider the reasons of the Tribunal.  The Minister observes that his reasons indicated he had given consideration to information given by the applicant in relation to the original request for revocation and the proceedings in the Tribunal.

51    A decision made under s 501BA must be made reasonably: Tereva, at [28] and [86]. A decision may be unreasonable where the decision, “lacks an evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, at [76].

52    In Minister for Home Affairs v DUA16 (2020) 271 CLR 550 (DUA16) the High Court observed at [26]:

A requirement of legal reasonableness in the exercise of a decision-maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn “from the facts and from the matters falling for consideration in the exercise of the statutory power”.

(Footnote citations omitted.)

53    For the following reasons, the Minister did not act unreasonably in exercising his power under s 501BA without waiting for the publication of the Tribunal’s reasons.

54    First, as DUA16 makes clear, the time for assessing legal unreasonableness is at the time the power was exercised. At that time, the Tribunal’s reasons had not been published and what the Tribunal had made of Dr Freeman’s reasons could only be a matter of conjecture. The applicant’s argument must be that it was unreasonable for the Minister to fail to wait for the reasons to be published just in case they might affect the Minister’s view of Dr Freeman’s evidence. That submission cannot be accepted.

55    Second, as has been explained, there is nothing in the text or context of s 501BA that makes the Tribunal’s reasons a necessary consideration for the Minister exercising the power in s 501BA(2). It must follow that it is unnecessary for the Minister to consider any particular part of the Tribunal’s reasoning upon any particular issue.

56    Third, the Minister’s knowledge that the Tribunal could be expected to publish its reasons within a reasonable time does not impact the scope of decisional freedom under s 501BA, particularly as the Tribunal had not given any indication of what time it considered to be reasonable.

57    Fourth, the Minister, through his legal representatives, had made the submission to the Tribunal that there were reasons for concern about Dr Freeman’s evidence. The Minister was required to exercise the discretion under s 501BA for himself and was entitled to maintain that view regardless of any different view the Tribunal might conceivably take about that evidence.

58    Fifth, it was open to the Minister to take the approach that his decision should be made urgently to prevent the applicant from remaining in the general community for an indefinite period while the Tribunal’s reasons were being produced. The Minister’s reasons indicate that he considered the relevant matters of national interest to include the protection of the Australian community from the applicant.

59    In making the decision without waiting for the Tribunal’s reasons, the Minister acted within the area of decisional freedom he was permitted under s 501BA. The applicant’s second ground of review must fail.

Ground 3: Apprehended bias

60    The applicant’s third ground of review is that the Minister’s decision was affected by a reasonable apprehension of bias. The apprehension of bias is said to arise from the Minister’s treatment of Dr Freeman’s evidence and from the inconsistent roles played by the Minister as a party before the Tribunal and as the ultimate decision-maker. The applicant submits that a fair-minded lay observer might reasonably have an apprehension that the Minister might not bring an independent mind to the s 501BA decision: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].

61    Section 501BA(3) of the Migration Act expressly provides that the “rules of natural justice do not apply” to a decision under s 501BA(2). The rules of natural justice require that a person who may be adversely affected by a decision be given an opportunity to be heard under a procedure that is both fair and unaffected by actual or apprehended bias on the part of the decision-maker. The parties did not make any submissions about the application of s 501BA(3). In any event, even assuming that the Minister’s decision may be vitiated on the ground of apprehended bias, the applicant’s argument should be rejected.

62    The applicant relied on Isbester v Knox City Council (2015) 255 CLR 135 (Isbester). In that case, a municipal council held a statutory discretion to destroy a seized dog if its owner had been found guilty of an offence with respect to the dog. A particular council officer determined that charges should be laid, signed some of the charges and gave instructions for the prosecution of the charges. After the dog owner pleaded guilty, the council officer arranged for a panel of three delegates of the council, including herself, to conduct a hearing to determine whether to recommend that the dog be destroyed.

63    The High Court held that a fair-minded observer might reasonably apprehend that the council officer might not have brought an impartial mind to the decision. The plurality observed at [34]:

The interest which the appellant alleges existed in this case is akin to that which a person bringing charges, whether as a prosecutor or other accuser, might be expected to have in the outcome of the hearing of those charges. It is generally expected that a person in this position may have an interest which would conflict with the objectivity required of a person deciding the charges and any consequential matters, whether that person be a judge or a member of some other decision-making body.

64    The plurality went on to add at [46]:

A “personal interest” in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor’s view of guilt or punishment. It is not necessary to analyse the psychological processes to which a person in such a position is subject. It is well accepted, as the two cases referred to show, that it might reasonably be thought that the person’s involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making. This is not to equate such a person with a judge.

65    The plurality observed at [49] that, “once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision-making is obvious”. The plurality also observed at [23] that the application of the principle in Ebner, “[depends] upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker”:

66    The Minister submits that a fair-minded lay observer would be cognisant of the nature of the Minister’s personal power in s 501BA(2) and the nature of the Tribunal’s review decision under s 501CA(4) and, accordingly, would not perceive that the Minister might not bring an independent mind to the s 501BA decision.

67    The judgment of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) was principally concerned with actual bias, but also contains an instructive analysis of the relevance of the Minister’s differing statutory roles to an allegation of apprehended bias. In that case, the Minister’s delegate refused Mr Jia a visa on the basis that he was not of good character. Mr Jia’s application for review was opposed by the Minister, but the Tribunal set aside the decision and remitted the matter to the Minister with a direction that Mr Jia qualified for the grant of the visa on the basis that he was of good character. Mr Jia was granted the visa but the Minister then cancelled the visa, applying s 501 and 502 of the Migration Act (in their form at that time). Section 501 gave the Minister a discretion to cancel a visa if, relevantly, the Minister was satisfied that the person was not of good character. Section 502 provided, relevantly, that the Minister could decide that it was in the national interest, that a person refused a protection visa under s 501, be declared an excluded person.

68    Chief Justice Gleeson and Gummow J at [84]-[87] rejected an argument that ss 501 and 502 should not be construed so as to confer upon the Minister a power to set at nought a decision of the Tribunal where the Minister took a different view of the material. Their Honours held that the fact that the Minister disagreed with the decision of the Tribunal, and ultimately decided to exercise his own powers in such a way as to produce a different practical result, did not mean there was an abuse of power; and that the Minister’s powers enabling that to be done was simply the consequence of the legislative scheme.  In that sense, ss 501 and 502 were, like the present s 501BA, capable of use as an “override” power.

69    In Jia, the High Court accepted that the Minister was obliged to bring a mind open to persuasion in respect of the issues raised by ss 501 and 502 (it may be noted that there was then no equivalent of the present s 501BA(3)). The majority emphasised the duality of the Minister’s political and statutory decision-making roles. Chief Justice Gleeson and Gummow J observed at [61]:

As the facts of the present cases show, the powers conferred upon the Minister by ss 501 and 502 form part of a statutory scheme which involves a complex pattern of administrative and judicial power, and differing forms of accountability.  The Minister is a Member of Parliament, with political accountability to the electorate, and a member of the Executive Government, with responsibility to Parliament.  As French J recognised in his decision at first instance in the case of Mr Jia, the Minister functions in the arena of public debate, political controversy, and democratic accountability.  At the same time, the Minister’s exercise of statutory powers is subject to the rule of law, and the form of accountability which that entails.  In relation to an applicant for, or holder of, a visa the Minister, either personally or through a delegate, may be an initial decision-maker, a party to proceedings for administrative or judicial review, and the holder of a power of cancellation and exclusion under ss 501 and 502.

(Emphasis added.)

70    Their Honours later observed in respect of the principle of apprehended bias:

[99]    In Ebner v Official Trustee in Bankruptcy, the majority judgment, referring to the law as to procedural fairness, and apprehended bias, warned:

“The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making.”

[100]    We agree with the observations on this subject made by Hayne J in his reasons for judgment in the present case.

…

[102]    …The powers given by ss 501 and 502, as has already been held, enabled the Minister in effect to reverse the practical consequences of decisions of the Tribunal in the cases of the persons involved, even though no new facts or circumstances had arisen; and even though the Minister had been involved in the proceedings before the Tribunal. As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise.

…

[105]    The Minister was obliged to give genuine consideration to the issues raised by ss 501 and 502, and to bring to bear on those issues a mind that was open to persuasion. He was not additionally required to avoid conducting himself in such a way as would expose a judge to a charge of apprehended bias.

(Emphasis added, citations omitted.)

71    The judgment of Hayne J, at [176]-[192] also provides insight into how the position of a Minister exercising personal powers provides a markedly different paradigm to that of a court or tribunal:

[181]    The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm. …

…

[187]    … Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.

…

[190]    There is no prejudgment in such a case because of the nature of the statutory task. It is to reach a degree of persuasion (satisfaction) that a value-laden standard (is not of good character) is met. The determination of that standard is not a task which the Act requires the Minister to undertake wholly anew each time it is suggested that there may be a case for the exercise of the discretionary power, conferred by the Act, to cancel or refuse a visa. It was open to the Minister to determine the standard to be applied in a way that left little or no room for debate about its application in an individual’s case.

[191]    Determining the standard in that way would not fetter the exercise of a discretion. The relevant discretion which falls for exercise is the discretion to refuse to grant or, in these cases, to cancel a visa if s 501(2) applied to the person. All that the Minister does, in the circumstances posited, is announce the particular construction that the necessarily imprecise statutory standard will be given in certain kinds of case.

[192]  Once it is recognised that there are elements of the decision‑making process about which a decision‑maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly...

72    I will proceed on the assumption that the Minister has an obligation to bring an open mind to a decision under s 501BA. The hypothetical fair-minded lay observer is, “taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision”: Isbester at [23].

73    The hypothetical fair-minded lay observer would be aware that s 501(3A) requires the Minister to cancel a visa where the visa holder is serving a sentence of at least 12 months’ imprisonment. They would be aware that a delegate of the Minister made a decision not to revoke the cancellation decision under s 501CA. They would be aware that, notwithstanding the Minister’s active opposition to the applicant’s application for review, the Tribunal then substituted a decision to revoke the cancellation decision.

74    A fair-minded lay observer would be cognisant of the dual roles of the Minister as the proper respondent in any merits review proceedings in the Tribunal and as the decision-maker under s 501BA. These seemingly inconsistent roles can be taken to have been contemplated by Parliament in conferring the s 501BA power upon the Minister. Indeed, the legislature provided for the very situation of the Minister making a decision to override a Tribunal’s decision, despite having been the losing party before the Tribunal. An analogous situation was recognised by Callinan J in Jia Legeng when his Honour observed at [245] that the Minister; “is, and necessarily so, a contradictor and protagonist in curial and other proceedings”: see also [72] and [102] (Gleeson CJ and Gummow J).

75    A fair-minded lay observer would be aware that the legislature expressly conferred a power upon the Minister to set aside the Tribunal’s decision and cancel the visa under s 501BA in the expectation that, notwithstanding the Minister’s opposition to the restoration of the visa at each stage, the Minister’s mind would remain open.

76    A fair-minded lay observer would understand that different considerations apply as between s 501CA and s 501BA. Under s 501CA, leaving aside the issue of good character, the critical issue for the Tribunal is whether there is “another reason” why the original decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act. That assessment is generally undertaken by reference to the considerations set out in the directions given by the Minister under s 499 and the representations made by the former visa holder. On the other hand, the critical consideration for the Minister under s 501BA is whether the visa cancellation is in the national interest. In Plaintiff S156/2013, the High Court observed at [40] that what is in the national interest is largely a political question. A fair-minded lay observer would understand that the national interest may legitimately involve broader political considerations. While there is certainly room for overlap, the Tribunal and the Minister may ultimately apply quite different criteria in coming to their respective decisions: see Vargas at [61].

77    The complaint of apprehended bias relies on the Minister’s treatment of Dr Freeman’s evidence. However, the Minister expressly took into account Dr Freeman’s evidence and gave it some weight. While the Minister did treat the evidence “with some caution”, this is quite different to disregarding or rejecting Dr Freeman’s evidence.

78    In these circumstances, the fair-minded lay observer would not have a reasonable apprehension that the Minister might not bring an independent mind to the decision under s 501BA of the Migration Act.

79    The applicant’s third ground of review must be rejected.

Conclusion

80    The application must be dismissed with costs.

Associate:

Dated:    17 March 2025