Federal Court of Australia

Sciascia v Minister for Immigration and Citizenship [2026] FCA 1385

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 14 May 2026 be dismissed.

2.    The applicant pay the respondent’s costs in an amount to be assessed in default of agreement in accordance with the court’s costs practice note (GPN-costs).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant, Mr Sciascia, is a citizen of New Zealand. He came to Australia as an infant in 1994 and has lived here ever since. Prior to 19 August 2025, he was the holder of a Special Category (Class TY) (subclass 444) visa (the “Visa”), which had been issued to him under the Migration Act 1958 (Cth) (“the Act”). On that date, the Visa was cancelled by operation of a decision that the Assistant Minister for Immigration (the “Assistant Minister”) made pursuant to s 501BA of the Act (the “Cancellation Decision”). It is to that decision that the following reasons pertain.

2    By an amended originating application dated 14 May 2026, Mr Sciascia seeks under s 476A of the Act relief upon judicial review of the Cancellation Decision. On the premise that it is a product of jurisdictional error, he moves for relief in the nature of certiorari and prohibition to have the Cancellation Decision quashed and to prevent its being acted upon. For the reasons that follow, that central contention must be rejected. Jurisdictional error is not established, and the application should and will be dismissed with costs.

Background

3    The circumstances that led to the cancellation are longer in chronological compass than might normally be the case. It repays to record them. They emerge without material controversy from the evidence that was led at the hearing, which I needn’t list.

4    Mr Sciascia has something of an unfortunate past. His representatives describe his childhood as unstable and unpredictable. In 2019, he was convicted of family violence offences, for which he received a community correction order. During the covid-19 pandemic, he found himself unable to work and began using and dealing drugs. In 2021, he was convicted of drug offences, in consequence of which he was sentenced to three-and-a-half years’ imprisonment.

5    On 21 September 2021, Mr Sciascia’s Visa was cancelled. Thereafter—or, perhaps, after the completion of his custodial sentence—he was taken into immigration detention. He applied to a delegate of the respondent (the “Minister”) for the revocation of the cancellation, which was declined. He then applied to the Administrative Review Tribunal (the “Tribunal”) for a review of the delegate’s decision. That application succeeded. On 31 October 2024, the initial cancellation was revoked (the “Tribunal’s Decision”) and Mr Sciascia was released from immigration detention.

6    A little over five months later, the Assistant Minister made a decision under s 501BA of the Act to set aside the Tribunal’s Decision and to cancel Mr Sciascia’s Visa. Mr Sciascia was notified of that decision on 19 May 2025 and was detained thereafter. That decision was the subject of an application to this court for judicial review. On 19 August 2025, the court made orders by consent granting relief in the nature of certiorari directed to it.

7    Less than an hour after those orders were made—and, no doubt, sensing that the consent position to which the court gave effect might lead to the making of a further decision—Mr Sciascia’s representative sent a short email to the Minister’s representative, requesting that her client be given an opportunity to comment in advance of any further ministerial consideration of his fate.

8    Later that afternoon, the Assistant Minister made the Cancellation Decision that is the subject of this matter. As is common, that decision assumed the form of a signed statement, which formed part of a submission that was prepared for the Assistant Minister’s consideration by staff within his department. To that statement were attached written reasons for the decision, which he also signed.

9    Presently, it is uncontroversial that:

(1)    the Assistant Minister made the Cancellation Decision without affording Mr Sciascia any opportunity to be heard about it;

(2)    the departmental submission that was prepared for the Assistant Minister (inclusive of the attached draft reasons but exclusive of other attachments) extended across some 19 pages;

(3)    the Assistant Minister signed the Cancellation Decision and the reasons that supported it 56 minutes after he began his consideration of the departmental submission; and

(4)    the Assistant Minister did not edit the reasons that he signed.

10    Save for one respect, the particulars of the Assistant Minister’s written reasons need not be addressed at this juncture and a brief summary will suffice. After noting the nature of the power under consideration, the Assistant Minister recorded his satisfaction that Mr Sciascia was somebody who did not pass the so-called “character test” for the purposes of s 501(6) of the Act. He then identified matters that he considered were apt to inform his assessment of whether the cancellation of Mr Sciascia’s Visa would be in the national interest. One of them was “…the protection of the community”.

11    The Assistant Minister’s reasons then turned to consider that issue as a dimension of the national interest. They recorded a description of Mr Sciascia’s criminal wrongdoing and its seriousness and then turned to address the risk that Mr Sciascia might present to the Australian community were he to retain his Visa. That, in turn, involved some consideration of his “[r]emorse and rehabilitation”. After recording some assessments on those scores that were the subject of exploration before the Tribunal, the Assistant Minister’s reasons noted that the Tribunal had found that Mr Sciascia presented, “an ongoing risk of future offending…” There was then recorded the following observation, which assumes some significance presently:

I accept that Mr SCIASCIA has made progress in addressing his rehabilitation, however this has not been tested in the community for any significant period of time…

12    The finding that led to the quashing by consent of the earlier cancellation decision concerned the prospect that Mr Sciascia might suffer financial difficulties in the future were he to be released into the community. That finding was not repeated in the Assistant Minister’s reasons for the Cancellation Decision. There were, additionally, other differences as between the two sets of reasons. The body of material before the Assistant Minister was otherwise unaltered from what he had originally considered for the purposes of making the first s 501BA decision.

The legislative framework

13    Section 501BA of the Act relevantly provides (and at the time of the Cancellation Decision, provided) as follows, namely:

501BA 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 ART;

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.

…

14    It is not disputed that the Tribunal’s Decision qualified as an “original decision” and that Mr Sciascia was, for the purposes of s 501BA(2)(a), a person who did not pass the “character test” for which s 501 of the Act provided.

15    Something might also be said about the operation of s 501BA(4) of the Act and the identity of the parties to the proceeding. It is uncontroversial that it was the Assistant Minister for Immigration who effected the Cancellation Decision (as well as the earlier s 501BA decision) and that he was authorised to exercise the power for which s 501BA(2) provides. Nevertheless, the parties jointly submitted that the respondent is the correct counterparty to the application for judicial review. Having now considered s 479 of the Act and s 19(1) of the Acts Interpretation Act 1901 (Cth), I harbour some doubt about the correctness of that contention; but, for obvious reasons, that is not a reservation that I need to resolve.

The present application

16    Mr Sciascia’s amended originating application posits that the Cancellation Decision was a product of jurisdictional error that assumed three primary forms. They correspond to the three grounds that are there set out, which, excluding “particulars”, are as follows:

1.    The Assistant Minister constructively failed to exercise his jurisdiction in making the [Cancellation Decision].

2.    The [Cancellation Decision] is affected by jurisdictional error because [the Assistant Minister] formed his state of satisfaction based on a finding for which there was no evidence, or which was irrational, or after unreasonably declining to seek new information from the applicant.

3.    The [Cancellation Decision] is affected by jurisdictional error by reason of apprehended bias.

17    The first ground is premised upon the amount of time that the Assistant Minister spent reviewing the departmental brief that had been prepared for him. Mr Sciascia contends that the amount of time that the Assistant Minister spent—56 minutes—is not consistent with his having exercised his jurisdiction with the care and consideration that its proper exercise required.

18    The second ground pertains to the observation that is extracted at [11] above. Mr Sciascia maintains that the evidence before the Assistant Minister at the time that the Cancellation Decision was made was that he had spent nearly seven months in the community (from 31 October 2024, when the Tribunal’s Decision was made, until 19 May 2025, when he was told about the first of the Assistant Minister’s s 501BA decisions), during which time there was no evidence that he had indulged in any wrongdoing.

19    The third ground proceeds on the assertion that the Assistant Minister, having already made a decision under s 501BA of the Act that he had to concede was void for jurisdictional error, then rushed to make the same decision on grounds that were substantively similar. In those circumstances, it is said that a fair-minded lay observer might reasonably apprehend that the Cancellation Decision might not have been made on its merits.

20    I shall address each of the grounds in turn.

Ground one

21    Ground one invites the court to infer, from the period of time over which the Assistant Minister considered the material that his department placed before him and various other circumstances to which attention will shortly turn, that the Assistant Minister did not complete the statutory exercise in a manner authorised by the Act.

22    Mr Sciascia relies upon Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Griffiths, White and Bromwich JJ) (“Carrascalao”). There, a question arose as to whether the Minister, in deciding to cancel the visas of two individuals under s 501(3) of the Act, had failed properly or validly to exercise his jurisdiction. The court found (at 383 [129]) that “…43 minutes represents an insufficient time for the Minister to have engaged in the active intellectual process which the law required of him in respect of both of the cases which were before him”.

23    It cannot be doubted that the court might infer, from the circumstances within which a ministerial decision was purportedly made, that it was not made in a way authorised by law. Nevertheless, an inference of the kind here urged requires a clear evidential foundation that the applicant bears the onus of establishing: Carrascalao, 363-4 [44]-[48] (Griffiths, White and Bromwich JJ); Po’oi v Minister for Immigration and Citizenship (2025) 314 FCR 376, 391-2 [58], [60] (Kyrou and Needham JJ, with whom I relevantly agreed; hereafter, “Po’oi”).

24    Mr Sciascia seeks to acquit that onus by an accumulation of circumstances. They neatly distil into three categories.

25    The first concerns the number and nature of the steps that the Assistant Minister had to take in making the Cancellation Decision, which are said to inform the sufficiency of the window of consideration that was available for that purpose. Specifically, Mr Sciascia contends that the Assistant Minister must be understood to have done as follows within the 56-minute period that he had, namely (references omitted):

23.1    The Assistant Minister ‘read the summary of material’, which comprised the submission (5 pages) and the reasons themselves (14 pages, 132 paragraphs). This summary referred to 145 pages of source material behind the Index of Relevant Materials.

23.2    The Assistant Minister undertook the following clerical tasks: signing, dating and marking the front page of the submission, signing and dating the decision page and recording the time taken on the decision.

23.3    The Assistant Minister elected not to afford the Applicant procedural fairness. That could not have been a straightforward exercise given the time that had passed since the Tribunal’s [D]ecision and the potential relevance of events that might have occurred in that time to the matters the Assistant Minister considered important to the national interest and the discretion.

23.4    The Assistant Minister considered whether or not to make any amendments to the statement of reasons.

23.5    The Assistant Minister reached a state of satisfaction as to whether the national interest required cancellation of the Applicant’s visa. That state of satisfaction involved an evaluative judgement encompassing the content of the national interest, the protection of the community, the risk to the community, and the expectations of the community.

23.6    The Assistant Minister considered matters relevant to his discretion to set aside the Tribunal[’s D]ecision and cancel the Applicant’s visa. That consideration involved evaluation of the best interests of children, the applicant’s ties to Australia since his arrival at 12 months of age, the impact on his family members, his social, education and employment ties, and impediments he would face if removed.

23.7    The Assistant Minister considered finally whether to exercise his discretion to set aside the Tribunal[’]s [D]ecision and cancel the visa. That final consideration required the weighing of matters for and against the Applicant, including matters dealt with under the national interest.

23.8    In the course of the above, the Assistant Minister’s statement of reasons discloses he had noted, found, accepted, had regard to, considered, been satisfied with respect to, and made elections regarding particular matters, signifying that the Minister had engaged intellectually with each particular matter and had positively formed the state of mind which each conveys.

26    Mr Sciascia invites the court to infer that certain of those matters might occupy a minister for some considerable time. It was suggested that the time that the constituent tasks might take was informed by the statutory context. Mr Sciascia’s counsel explained that:

…this is not a simple task. It is an important task. It affects people’s lives and livelihood in the most profound of ways, and it’s a task that is subject to no avenue of review or oversight, save for judicial review by this court. So it is a task of the gravest importance, particularly bearing in mind that what the Minister is doing is overturning a considered decision of a tribunal made earlier, a task of the gravest importance that demands careful attention.

27    The second category of circumstances that was held up as apt to require more time than was spent was expounded mostly at the hearing. Mr Sciascia sought to identify features of the reasons, or the Assistant Minister’s process of adopting them, that suggested that he “did not bring an active intellectual process to bear” upon the exercise of his discretion.

28    The most straightforward of those features was the Assistant Minister’s adoption of the reasons wholly without amendment. It was suggested that a conscientious decision maker, applying the measure of rigour and reflection that the Act requires, would be unlikely to accept wholly without amendment the reasons that were prepared for him.

29    Another feature said to be of relevance was the form of reasons provided for the first s 501BA decision. Initially, the suggestion seemed to be that the circumstances as they presented to the Assistant Minister—including that he was re-making a decision that had been set aside for jurisdictional error—obliged him in some way to understand the changes that had been made to the reasons prepared for him (relative to those that were prepared for the purposes of the previous decision). It was (at least tacitly) suggested that that would inform the calculation of the time required to complete the constituent steps that the proper making of the Cancellation Decision required. That contention was later clarified by senior counsel:

…[M]y learned friend submitted, in relation to ground 1, that my submission was somehow that the Minister was obliged to conduct a comparison between the two sets of reasons or was obliged to read the first set of reasons and appreciate how the second set differed, and just to be clear, that is not my submission. I should be clear. I don’t put any particular submission about how the Minister may have made a legally reasonable and legally defensible decision. There may be all manner of ways in which he might have made it. But my submission is that your Honour can infer from the similarities but crucial differences between the two sets of reasons, from the fact that the set of reasons was written as if it was a set of reasons by someone who had in fact considered the underlying material, and from the fact that those passages then appear unchanged and the Minister was content to sign that without remarking at all on the extent to which the reasons seemed to presume, albeit stating at the start that the Minister had read only the summary, but seemed to presume that the Minister had read the underlying materials, that those matters in combination with other matters I’ve referred to provide support for an inference that the Minister didn’t give active intellectual consideration to the merits of the case.

30    The reasons for the Cancellation Decision differed in a number of respects from those that were prepared in respect of the earlier s 501BA decision. Only some need be mentioned. Unsurprisingly, the conclusion that gave rise to the jurisdictional error for which that decision was set aside (concerning the possible financial difficulties that Mr Sciascia might face if he retained his Visa) was removed. So too was a conclusion as to the weight that, in considering whether it was in the national interest to cancel the Visa, might be attributed to community expectation. An assessment in the earlier reasons that the strength, nature and duration of Mr Sciascia’s ties to Australia weighed “very strongly” against cancellation instead reflected that it only “strongly” weighed against cancellation.

31    There was one additional change upon which Mr Sciascia placed some emphasis. It seemingly bears some relationship to the task that he identified at paragraph 23.8 of his written submissions (above, [25]). In the reasons for the first s 501BA decision, the Assistant Minister noted that he had “…had regard to the documents provided by the Department”; whereas, in the reasons for the Cancellation Decision, he stipulated only that he had “…had regard to the summary of material provided to me by the Department” (emphasis added). Senior counsel for Mr Sciascia explained at hearing:

What I’m inviting you to make of [certain paragraphs], is that the way these reasons were originally written, they were written as the reasons of someone who had looked at the underlying material and drawn their own inferences from it. And what’s happened in the second set of reasons is the department has replaced the statement, I’ve looked at the material, with a statement that says I’ve looked at the summary, but then haven’t actually changed the underlying reasons. And the fact that that is how the decision-making evolved is a matter from which your Honour can infer something as to whether the Minister genuinely applied an independent mind to it, in my submission.

…my submission is he didn’t give his own independent, realistic consideration to it, because that is not the kind of thing one could do without actually looking at the underlying material. This is the second qualification referred to in Carrascalao…

32    Certain paragraphs of the Assistant Minister’s reasons were drawn to the court’s attention as examples of observations that properly required actual consideration of source material, rather than of departmental summaries. The following passages from the reasons were identified to that end, namely (emphases original):

(1)    “I note the [Tribunal] considered the very confined scope of Mr SCIASCIA’s offending, his level of personal insight, the relative strength of family and community supports, and found the risk of further offending is not unacceptable (Attachment E)”;

(2)    “The sentencing remarks of this offending are not available, however the Victoria Police preliminary brief, statement made by informant dated 29 May 2019 is available. I accept this is written from the police perspective…”;

(3)    “In assessing the likelihood of Mr SCIASCIA reoffending in future, I’ve considered available information as to matters that may have contributed to Mr SCIASCIA’s past conduct, as well as indications of remorse and the extent of his rehabilitation, including more recently in custody, where relevant information is available”;

(4)    “I have taken into account Mr SCIASCIA’s submission that he had a difficult upbringing, with lots of challenges, not having a relationship with his father, his brother taking his own life when Mr SCIASCIA was a teenager, experiencing family violence and being his mother's support person. Mr SCIASCIA submits he has had challenges with gambling since he was young, and later with alcohol and then some drug use, which he sees as contributing to his offending (Attachment F)”

(5)    “Psychologist Ms Alison Mynard reported that she had two consultations with Mr SCIASCIA in August and September 2024 and the Tribunal summarised her report as; during Mr SCIASCIA's early to mid-teen years he experienced a number of bereavements, including the suicide of a brother, and also commenced working to assist maintaining the household, and then the death of his biological father, whom he had only met for a brief period on a return visit to New Zealand. Mr SCIASCIA’s alcohol use reached very high levels at times, and he reported that gambling took over his life for a period of about 10 years, and at times he borrowed money to pay bills. Ms [Mynard] assessed that Mr SCIASCIA meets the clinical criteria for Pathological Gambling Disorder, now in remission (Attachments E and J)”;

(6)    “I find that Mr SCIASCIA’s traumatic childhood, gambling, use of alcohol and drugs, association with negative influences, loss of employment during covid, have all influenced his offending. I don’t consider this removes or substantially reduces his culpability”;

(7)    “I have considered representations from other family members and community members who have written to request Mr SCIASCIA remains in Australia and have offered him their full support to assist him when released into the community to access employment, accommodation and financial support (Attachments K8 - K12)”; and

(8)    “The letters of reference from his past and prospective employers are glowing and reflect deep respect he had earned in his community. They also highlight the critical need of his shearing skills given the scarcity of skilled shearers (Attachments K8 – K10).”

33    In Carrascalao, at 367-8 [61], the full court accepted that “…despite the personal nature of the [s 501(3)] power, the Minister was entitled to obtain assistance from departmental officers and members of his private staff, including have them prepare summaries of information for review by him”. Then identified were a number of qualifications to that proposition, namely (references omitted):

(a)    any such summary which is materially deficient may give rise to an inference that the decision-making process was not properly conducted by the Minister;

(b)    the use of a departmental summary may not be appropriate when what is sought to be summarised is a substantive argument (as opposed to an assertion of fact). Attempts to summarise material of this kind may be fraught, because the manner of the summary may cause some of the substantive force which the document may otherwise have had to be lost; and

(c)    the Minister’s entitlement to have regard to a summary or submission prepared by his Department must take into account any statement or indication in such a document which advises the Minister of the need for him or her personally to consider relevant information in a document which is summarised…

34    Where circumstances such as those described in paragraph (c) above present, the authorities do not go so far as to mandate that a minister review the source material. What is required—at the least—is to turn one’s mind as to whether to refer to it or merely to rely upon the summary: Carrascalao, 381-2 [125], 385 [138]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 282 CLR 1, 16 [22], 17 [25] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ).

35    Senior counsel for Mr Sciascia did not assert that, in the present matter, the Assistant Minister was obliged to advert to the attachments that accompanied his reasons. Rather, the submission assumed a bifurcated form. The first aspect engaged with Carrascalao at [61(b)]: Mr Sciascia’s submissions and employer references, for instance, were said to be incapable of being summarised without losing their substantive force. The second seemed to extend beyond the observable boundaries of Carrascalao. The statements in the reasons, Mr Sciascia said, “would indicate one had actually looked at the material”. At one point, it was suggested that it was incumbent upon the Assistant Minister to either review the source material himself or to correct the reasons so that they did not convey an impression that he had done so.

36    The third category of circumstance that was said to suffice to bespeak a want of proper consideration concerned the features or state of mind of the Assistant Minister himself. Mr Sciascia accepted that the Assistant Minister had given consideration to his circumstances in the course of making the prior s 501BA decision; but emphasised the short duration of that earlier consideration (30 minutes). Reliance was placed upon the effluxion of time—some four months—since that earlier decision was made and the absence of evidence as to what, if anything, the Assistant Minister might have recalled about Mr Sciascia’s case at the time that he turned to consider the Cancellation Decision.

37    To the extent that it was suggested, I do not accept that, in order properly to exercise the power conferred by s 501BA(2), the Assistant Minister was required to identify, appreciate or reconcile the changes as between the two sets of reasons. Nothing about the statutory subject matter, scope or purpose compelled that and its absence presently does not bespeak any error of jurisdiction. This is not a case in which the actual material before the Assistant Minister had changed (cf. Carrascalao, 382-3 [128(d)]). Nor was it suggested that the conclusions that the Assistant Minister preferred lacked an intelligible foundation as a result of the respects in which the two sets of reasons differed. Further—and to foreshadow a point upon which I will shortly elaborate—I do not consider that 56 minutes was so short a period of consideration that it should be necessary to assume that the Assistant Minister’s previous consideration of Mr Sciascia’s case bore operatively upon the Cancellation Decision. The requisite appreciation for Mr Sciascia’s circumstances did not require comprehension of the changes as between the two sets of reasons.

38    Save for in that respect, the Minister does not obviously dispute—and I accept—that the making of the Cancellation Decision here involved (or should be presumed to have involved) the taking of each of the steps that Mr Sciascia summarised. Might the nature and quantity of those steps ground an inference that the Assistant Minister could not perform them—at least not with the degree of “active intellectual consideration” that s 501BA might be understood to require—in the 56 minutes that was available to him?

39    The short answer to that question is: no. There were only 19 pages to which the Assistant Minister was obliged to apply his mind. The evaluative task that he performed was not one that could only properly be performed sequentially. It was open to the Assistant Minister to consider the intermediate and ultimate states of satisfaction to be formed whilst he was reading.

40    Further, not all of the tasks that I have accepted that he did undertake were required to be undertaken to authorise the exercise of the s 501BA power. For instance, there was no obligation to consider whether to afford Mr Sciascia procedural fairness: see, by analogy, Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75, 96 [78] (Mortimer and Bromwich JJ). There is no reason why I might then infer that those matters were, in fact, the subject of protracted consideration, even taking into account the contexts that Mr Sciascia highlights (above, [25]-[26]).

41    The Assistant Minister may be assumed to have had at least some familiarity with the statutory task. As to his specific familiarity with Mr Sciascia’s circumstances, there is ample material to suggest a level of acquaintance that might have accelerated somewhat the completion of the task. Whether or not that is so does not much matter. Even assuming that the Assistant Minister concluded his task afresh, without any assistance from his having made the initial s 501BA decision, there is still no sound basis to draw the inference that Mr Sciascia invites the court to draw.

42    What, then, of the suggestion that there was some problem affecting the Assistant Minister’s reliance upon his department’s summaries? The suggestion in [61(b)] of Carrascalao that the substantive force of submissions might be lost upon departmental distillation may be accepted so far as it goes. It has not been explained what, exactly, was lost here in the summaries that were given to the Assistant Minister. There is no suggestion, for instance, that the letters of support might have been more accurately described as other than “glowing”; nor that Mr Sciascia’s submission is not fairly reflected in the ten paragraphs of the reasons that refer to it. It has not been explained how it might be that the Assistant Minister could be charged with any failure to consider something that he might have been obliged to consider; nor, otherwise, how reliance upon departmental summary might sound in jurisdictional error. I do not accept either proposition.

43    The more novel contention—that the Assistant Minister’s reasons tended falsely to convey direct engagement with the attachments to which they referred—is, in truth, concerned not with the standard of ministerial consideration but with the impugning of how things were expressed.

44    In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 65-6, Brennan J relevantly observed:

The Department does not have to draw the Minister’s attention to every communication it receives and to every fact its officers know. Part of a Department’s function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister’s appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function.

A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister’s decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision.

45    The Cancellation Decision proceeded—and was expressed to proceed—upon the basis of departmental summaries that are not said to be anything other than materially complete and accurate. That approach was orthodox. To accept the contrary proposition would be to risk the appearance of indulging impermissible merits review.

46    Similarly, nothing may be made of the fact that the Assistant Minister’s reasons were left unamended from the draft version with which he was furnished. It is simply not the case that that, either alone or cumulatively with other circumstances, suffices as a solid foundation upon which to infer that the Assistant Minister did not apply his mind to the statutory task in the way that the proper exercise of his jurisdiction required.

47    I return then to what was, with respect, a nuanced contention about the inference that the court might draw from the Assistant Minister’s apparent lack of appreciation of (or express reference to) the manners in which the draft reasons that he endorsed differed from those that accompanied his earlier decision (above, [29]). Acknowledging the holistic way in which the point was put, I do not consider that there is a proper basis upon which to infer that the Assistant Minister failed, by reason of that (whether by itself or in combination with other circumstances), to consider anything in a way apt to bespeak jurisdictional error. It was not essential to the proper exercise of the jurisdiction that the Assistant Minister should turn his mind to the existence of any such differences.

48    The parties each referred to a number of judgments in which this court has considered and made findings about whether particular periods of time were sufficient for the proper exercise of jurisdiction under s 501BA of the Act. The court’s task is an evaluative one, which is to be performed taking into account the available evidence and reasonable inferences as to all the relevant facts and circumstances: Carrascalao, 364 [47]. There is little to be gained by traversing other decisions: Po’oi, 392 [62] (Kyrou and Needham JJ, with whom I relevantly agreed).

49    The statutory task that confronted the Assistant Minister was one that bore significantly upon Mr Sciascia’s legal rights. It was to be exercised personally and without the need to observe natural justice, and it was (and is) not susceptible to merits review. All of those things may be accepted. There is, nevertheless, no sufficiently firm (which is to say, proper) basis upon which to infer that 56 minutes was an insufficient period for the Assistant Minister properly to complete the statutory task that he completed.

50    To the extent that it is said that I might more easily draw the inference that I am invited to draw because there is no direct evidence from the Assistant Minister or his staff (including as to the quality of his consideration of the merits of Mr Sciascia’s case or the extent of his recollection of Mr Sciascia’s circumstances from his previous encounter with it), I nonetheless decline to draw it. That it might more easily be drawn is one thing; but there must still be a sufficient evidential basis to support it and I do not consider that Mr Sciascia has established that.

51    Respectfully, Mr Sciascia’s submissions in respect of ground one distil to the suggestion that it is wrong for decisions of such importance to be made so quickly and with such reliance upon the views of others. Howsoever skilfully, Mr Sciascia seeks to cast the Assistant Minister as impulsive or unthinking, perhaps even indifferent; and appeals to this court as though its nobler angels are better suited to the gravity of the statutory task. That is not a proper basis upon which to indulge a remedy on judicial review and the invitation must be rejected. Mr Sciascia’s first ground of challenge is not made good.

Ground two

52    By his second ground of challenge, Mr Sciascia contends that the Assistant Minister’s finding about the state of his rehabilitation—specifically, that it “has not been tested in the community for any significant period of time”—was attended by jurisdictional error.

53    The first way in which that proposition is put concerns what is said to be an absence of supporting evidence. Second (and relatedly), it is said that the Assistant Minister’s finding was irrational (to a point consistent with jurisdictional error). Third, it is said that the finding is tainted by jurisdictional error because of the process by which it was made; specifically, because it was made absent further input from Mr Sciascia.

54    At the hearing, Mr Sciascia accepted that the first and second of those three contentions distil to a complaint that the period for which Mr Sciascia had been in the community at the point that the Cancellation Decision was made should—indeed, he says, must—be understood to qualify as “significant”. That expression of the argument evolved and I will return to its different permutations shortly.

55    The argument proceeds upon a legal construct concerning the Assistant Minister’s knowledge about when Mr Sciascia re-entered detention following the initial s 501BA decision. Mr Sciascia contends that, at the point that he made the Cancellation Decision, the Assistant Minister was on constructive notice of the 200-day period that he had spent in the community (between 31 October 2024 and 19 May 2025). I accept that he was.

56    The Assistant Minister’s characterisation of Mr Sciascia’s period of less than seven months in the community as not “significant” cannot be impugned in the manner in which Mr Sciascia seeks to impugn it. The “significance” of a period of time is a question that depends upon context, and defies convenient, binary proof. It is not for the court to assess for itself whether the period in focus here was or was not properly described as (or was or was not objectively) significant. Instead, the court is concerned to consider whether the decision maker’s conclusion has “an evident, intelligible and rational foundation”: Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, 630-1 [131]-[132] (Wheelahan J); see also 614 [51]-[52], (Mortimer J, with whom Moshinsky J agreed).

57    Presently, the conclusion to which the Assistant Minister was drawn concerned the risk that Mr Sciascia might present to the Australian community were he to retain his Visa. That turned upon measures of rehabilitation, and the extent to which they might bear upon that ultimate analysis. For the purposes of assessing whether the risk that Mr Sciascia posed was reduced by reason of rehabilitation, it was open to the Assistant Minister to characterise the period over which Mr Sciascia had remained in the community without further misconducting himself—irrespective of the number and nature of prosocial activities upon which he might have embarked—as one that was not significant. I do not accept the contrary contentions advanced on his behalf.

58    The argument’s next incarnation took the form of a suggestion that the Assistant Minister’s finding was untethered to any express appreciation of how long Mr Sciascia had been in the community after his release from immigration detention. Reliance is placed upon (amongst other decisions) Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ); and, particularly, the suggestion (at 446-7 [47]) that, where reasons are given for the exercise of a discretionary power, their “intelligible justification” must be apparent from the reasons themselves. Mr Sciascia suggests that, here, a requisite link is missing. His counsel explained at the hearing that:

There’s nothing in the reasons to say, I acknowledge he has been in the community between 31 October and 19 May, and that he might have done something during that time, or to say, I just don’t regard that as a significant period of time, no matter what he has done during that time.

59    That contention must be rejected. Mr Sciascia contends that the time that he had spent in the community was a matter within the Assistant Minister’s knowledge, constructive or otherwise. The finding that Mr Sciascia seeks to impugn can only be understood as one addressed to the significance or otherwise of that period insofar as it tended to suggest Mr Sciascia’s rehabilitation. That is so even though the same statement was included in the earlier s 501BA reasons with slightly different effect (in the sense that, at the time of that earlier decision, Mr Sciascia had only been in the community for around 160 days, not 200). In both sets of reasons, the statement, I think quite plainly, refers to the applicable period that Mr Sciascia had spent in the community.

60    Equivalent reasoning addresses the final evolution of Mr Sciascia’s argument: namely, the contention that the Assistant Minister’s conclusion rested irrationally upon outdated material. In that respect, Mr Sciascia seeks to draw an analogy with the circumstances that presented in Minister for Immigration and Multicultural Affairs v SSVJ (2026) 315 FCR 435 (Perry, Kennett and Shariff JJ). There, the Minister proceeded to exercise power under s 501BA of the Act without evidence concerning SSVJ’s rehabilitative efforts in the 13 months since the Tribunal decision. The full court found (at 448 [48]), that it would have been “open to the Minister to find that [SSVJ] had taken no substantial steps towards rehabilitation up to the time of the Tribunal hearing…”. The Minister’s reasons instead (and irrationally) “clearly express[ed] views about [SSVJ’s] circumstances at the time of his decision”.

61    I reject the contention that the Assistant Minister here moved impermissibly upon outdated information. Implicit within his finding was that, irrespective of what might have occurred during Mr Sciascia’s seven-month stint in the community, that period was not a significant one over which to test his rehabilitation in a way that might ground a favourable risk assessment. The finding was quantitative. Whether it could have been more than what it was doesn’t much matter. Whatever might be said of the conclusion that was expressed, it was not irrational to a point bespeaking jurisdictional error for the Assistant Minister to base his assessment in that way. Nor did it involve making unwarranted assumptions about Mr Sciascia’s current circumstances: cf. CPDL v Minister for Immigration and Citizenship [2026] FCA 342, [62] (Hill J).

62    That serves as a convenient segue to Mr Sciascia’s attack upon the reasonableness of the Assistant Minister’s process (the third and final of the three ways in which the finding that is the subject of ground two was suggested to be a product of jurisdictional error). Mr Sciascia submits that there was an unreasonable failure (or, perhaps, refusal) to seek from him updated information about how he had fared in the community between October 2024 and May 2025. He contends that the Assistant Minister, when considering whether or not to set aside and cancel a person’s visa under s 501BA of the Act, possessed an incidental power to seek information; and that legal unreasonableness in the exercise of that implied power might suffice to render jurisdictionally invalid a subsequent exercise of power under s 501BA(2) of the Act.

63    The contention is, Mr Sciascia says, to be understood in light of the following matters, namely:

(1)    the Assistant Minister’s constructive awareness (at the point that the Cancellation Decision was made) that Mr Sciascia had been in the community for some seven months;

(2)    the Assistant Minister’s constructive awareness that Mr Sciascia had, through his representatives, asked to provide updated information prior to any further s 501BA decision being made;

(3)    that the latest representations by which Mr Sciascia was afforded procedural fairness (before the Tribunal, some nine months earlier) were stale;

(4)    that there was no objective urgency in making the Cancellation Decision; and

(5)    that the conclusions that the Assistant Minister actually drew about the community-based period were adverse to Mr Sciascia.

64    Mr Sciascia submits that a part of the rationale for Parliament’s ouster of natural justice in s 501BA(3) of the Act is that it “will have already been provided to the non-citizen through the revocation process available under s 501CA”: Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (hereafter, the “Bill”), [84]. Another part, he says, might be to enable “real matters of national concern [to] be addressed urgently” (as suggested by Bromwich J in Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270, 279 [40] (“Tereva”)). Those policy considerations, Mr Sciascia explains, inform an assessment of the reasonableness of the manner in which the Assistant Minister here proceeded (particularly in the circumstances described at [63(3)] and [63(4)] above).

65    As to the materiality of what he says was the Assistant Minister’s impermissible failure, Mr Sciascia relies upon an affidavit that he affirmed on 14 May 2026. It suggested (amongst other things) that, following his release from immigration detention in October 2024, he had been proactive in seeking and maintaining employment, obtaining his driver’s licence, and establishing or re-establishing various family relationships.

66    Obiter remarks of this court have favoured the conclusion that there might arise circumstances in which the exercise of the power conferred by s 501BA(2) might be rendered jurisdictionally invalid by reason of a legally unreasonable failure to seek information from the visa holder: Vargas v Minister for Home Affairs (2021) 286 FCR 387, 398 [35] (McKerracher, Markovic and SC Derrington JJ); Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156, 187 [154], 188-9 [160]-[161] (Feutrill J) (“Palmer”); Ozer v Minister for Home Affairs [2019] FCA 104, [45] (Steward J).

67    Accepting, for the sake of argument, that that is so, the threshold for legal unreasonableness is “usually high”: Minister for Home Affairs v DUA16 (2020) 271 CLR 550, 563 [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). In the case of unreasonableness of process (rather than result), the High Court has said that it must be “so devoid of plausible justification that no reasonable person could have taken that course”: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439, 450-1 [19] (Kiefel CJ, Bell, Gageler and Keane JJ).

68    Those observations have particular force where what is alleged to have been unreasonable is the decision maker’s failure to do something that Parliament has expressly said that they are not required to do. As Derrington and Hespe JJ observed in Palmer, 166 [47]:

There are no words of ambiguity or equivocation in s 501BA(3) which might indicate that the exercise of power under s 501BA(2) is subject to the rules of natural justice on some occasions or under certain circumstances. There are also no words indicating that the Minister has some Executive legislative power to create a requirement, either intentionally or unintentionally, that the power granted under s 501BA(2) be subject to the affording of natural justice to the visa holder. Moreover, there is nothing in the words of s 501BA(3) which invite the application of some judicial exegesis so that the freedom accorded to the Minister should be overridden and the subsection reformulated such that only on some occasions the rules of natural justice do not apply.

69    Here, the Assistant Minister must be understood to have favoured the view that, because of its duration, Mr Sciascia’s period of freedom within the community was not a circumstance that affected the ultimate conclusions that the Assistant Minister was minded to draw about the risk that he posed to the Australian community (at least insofar as Mr Sciascia’s rehabilitation was concerned). That is the ordinary implication of the finding that his rehabilitation had not been tested in the community for any significant period. The adjective, “significant”, is to be understood in the context of the statutory task with which the Assistant Minister was seized and in the context of his broader reasons.

70    That understood, the circumstances that Mr Sciascia highlights (at [63], above) are at the periphery of the Assistant Minister’s approach. Having regard to the Assistant Minister’s broader observations about Mr Sciascia’s offending and rehabilitative history (none of which is the subject of any challenge), and the relatively brief period that Mr Sciascia was in the community, preferring the view that he did lay well within the decisional freedom that the Assistant Minister possessed not only in respect of the substantive exercise of the power but also the procedural incidents of it. His failure (or refusal) to seek information from Mr Sciascia was not unreasonable to a point bespeaking jurisdictional error.

71    It follows that ground two of Mr Sciascia’s amended originating application is not made good.

Ground three

72    By his third ground of review, Mr Sciascia seeks to impugn the Cancellation Decision on the ground that a reasonable apprehension of bias—specifically in the form of prejudgment—attended its making. Implicit in that contention is that apprehended bias serves to deprive the Assistant Minister of the jurisdiction to make the Cancellation Decision that he would otherwise have possessed. That, in turn, calls for consideration of the import of s 501BA(3) of the Act; and, in particular, of whether it operates to nullify what is generally known as the “bias rule” of natural justice.

73    The Minister accepts that, if the rule against bias conditioned the making of the Cancellation Decision, it will be challenging for him to establish that it was not made in circumstances that give rise to an actionable apprehension.

74    Full courts of this court have expressed competing observations on the threshold question; albeit not dispositively and, therefore, not in ways binding upon the court presently. In Jama v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 313 FCR 101 (Rangiah, Snaden and Wheatley JJ; hereafter, “Jama”), the court observed in obiter (at 111 [53]) that, “…it is difficult to conceive of how the power conferred by s 501BA(2) of the Act could be exercised in circumstances that did not permit of a reasonable apprehension of bias.” A minister employing s 501BA to overturn a tribunal (as opposed to a delegate) decision will invariably be vindicating the position that he or she had adopted, unsuccessfully, before the tribunal. It follows, so the full court concluded, that those decisions would routinely be vulnerable to allegations of bias. By contrast, in Tereva, Mortimer J (with whom Bromwich J agreed; Thomas J agreeing in the result) was inclined (at 278-9 [35], albeit in obiter) to prefer the view that “greater clarity of language would be needed” in order that s 501BA(3) of the Act might effectively oust the bias rule.

75    The principles that should guide the court in construing the words of s 501BA are not in dispute. They are to be ascribed the meaning that the legislature is to be presumed to have intended that they should have: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ). The starting and finishing point is the text, read in its proper context and in light of what the provision is designed to achieve: Palmanova Pty Ltd v Commonwealth (2025) 99 ALJR 1362, 1364-5 [4] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ) (hereafter, “Palmanova”). Deference should be afforded to the construction that best achieves the object of the statute: Acts Interpretation Act 1901 (Cth) (“AI Act”), s 15AA.

76    As part of its consideration of context, the court may have regard to relevant extrinsic materials: AI Act, s 15AB. However, that “examination [is not] an end in itself”: it is only relevant insofar as it assists in assigning meaning to statutory text (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ)). To put it differently, the court’s task is “guided but not governed” by such material: Palmanova, 1365 [5] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ).

77    It is well understood (and both parties accept) that, in the absence of a contrary Parliamentary intention manifested in plain words of necessary intendment, the common law requires that statutory decision makers make their decisions in accordance with the requirements of natural justice. Authority for that proposition, though it could hardly be doubted, may be found in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 352 [74] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

78    It is also common ground that, ordinarily understood, the term “natural justice” (like its synonym, “procedural fairness”) is apt to include two things: first, that decisions won’t be made adversely to a person’s interests unless or until he or she has been given an opportunity to make submissions (the hearing rule); and second, that decisions won’t be made otherwise than on their factual and legal merits (the bias rule). Again, that proposition is amply supported by authority, including CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, 86-7 [16] (Kiefel CJ and Gageler J), 98-9 [54] (Nettle and Gordon JJ) (“CNY17”) and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 489-90 [25] (Gleeson CJ).

79    What is ultimately in issue presently is whether the references to “natural justice” and “the rules of natural justice” appearing in the text of s 501BA ought to be understood according to their ordinary meanings; or whether, instead, there is something about the statutory text, context or purpose that warrants that they be understood to refer only to (and, thereby, operate only to oust) the natural justice “hearing rule”.

80    Ascribing that narrow meaning to “[t]he rules of natural justice” is not without precedent. In Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197 (Charlesworth J), the court was minded to prefer a view that a similar statutory exclusion in s 501(5) of the Act was not sufficiently “express and unequivocal…to shield the decision of the Minister from judicial review for actual or apprehended bias, being a distinct body of principle having distinct origins and purposes to that of the hearing rule” (at 204-5 [22]). The provision there under consideration provided for the non-application of “the rules of natural justice, and the code of procedure” set out in another part of the Act.

81    Ultimately, the guidance that I might draw from that decision is limited. The ouster with which it was concerned appears in a distinguishable legislative context; not least because the Minister will not, by statutory implication, have had occasion previously to consider the visa holder’s circumstances. Further, and as in Jama, the Minister did not seek to contend that the bias rule was inapplicable.

82    The court was taken to the explanatory material concerning s 501BA (above, [64]). It repays to replicate more fully the paragraphs upon which Mr Sciascia relied:

84.    New subsection 501BA(3) of the Migration Act provides that the rules of natural justice do not apply to a decision under subsection 501BA(2). However, natural justice will have already been provided to the non-citizen through the revocation process available under s 501CA.

Minister’s exercise of power

85.    New subsection 501BA(4) of the Migration Act provides that the power under subsection 501BA(2) may only be exercised by the Minister personally. The intention is that this is a personal power of the Minister to ensure that, despite a decision of a delegate or tribunal to revoke a visa cancellation, the Minister retains the ability in exceptional cases, where it is in the national interest, to remove a person who does not pass the character test from the community.

Decision not reviewable under Part 5 or 7

86.    New subsection 501BA(5) of the Migration Act provides that a decision under subsection 501BA(2) is not reviewable under Part 5 or Part 7 of the Migration Act (which relate to MRT and RRT review). Decisions made personally by the Minister under section 501 are not merits reviewable. This is in recognition of the fact that the government is ultimately responsible for ensuring that decisions reflect community standards and expectations.

83    The court was also directed to the second reading speech delivered upon the Bill’s introduction into Parliament: Commonwealth, Parliamentary Debates, House of Representatives, 24 September 2014, 10326 (Scott Morrison, Minister for Immigration and Border Protection). The then-minister contemplated that the s 501BA measure (amongst others) “will ensure that the government can move quickly to take action against noncitizens who pose a risk to the Australian community by delivering consistency in personal ministerial decision-making powers across both the character and general visa cancellation powers.”

84    Mr Sciascia emphasises that none of those indications as to the intended operation of s 501BA of the Act evinces that the legislature intended to disapply the bias rule. That the power might need to be exercised quickly and that a visa holder will already have had the opportunity to make representations are matters, he submits, that are directed towards the exclusion only of the hearing rule.

85    Referring to [85] and [86] of the Explanatory Memorandum to the Bill, counsel for Mr Sciascia explained:

…if I can put it in my own words, your Honour, and hopefully not too bluntly, this is a power conferred on the Minister to correct aberrant or anomalous tribunal decisions, or what’s understood to be tribunal decisions that simply do not accord with community expectations and standards. And if one talks about the purpose of the power at an even higher level, your Honour, one can appreciate that that power is necessary to maintain public confidence in the integrity of the regime for migration decisions. The reference to community standards makes clear that that is at least a large part of what this power is about.

Now, if that is the purpose, to maintain decisions in line with community standards and public confidence in the integrity of the migration decision regime, such that there are not these anomalous decisions left to stand, in our respectful submission, it is inconsistent with that purpose to oust the bias rule, the apprehension of bias rule, because the apprehension of bias rule is concerned with, in large part, public perceptions of the integrity of decisions. And so, in my submission, there is a real tension in acknowledging that the purpose of this power is to maintain accordance with community standards and confidence in the integrity of the decision-making regime, but then to oust the very rule that is directed to that.

86    As to the court’s obiter remarks in Jama (above, [74]), Mr Sciascia notes that they do not explain why the Parliament would wish to oust the rule against actual bias (a topic to which I will shortly return). In respect of the expressed concerns about how the structure of the statutory scheme might frequently lead to an apprehension of bias, he relies upon the court’s observations made in GFE24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 193 (Rangiah J) and, later on appeal, GFE24 v Minister for Immigration and Citizenship (2025) 313 FCR 210 (Collier, Jackman and Younan JJ).

87    There, GFE24 sought to contend that a ministerial decision to cancel his visa and set aside a tribunal decision was affected by apprehended bias. In finding that the s 501BA decision was not so affected, the court at first instance and on appeal made observations about the contextual element to the reasonable formation of an apprehension of bias. In GFE24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 193, after surveying the relevant authorities, Rangiah J noted (at [72]-[75]) that:

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 v Knox City Council (2015) 255 CLR 135] 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 [Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507] 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.

88    His Honour’s decision was upheld on appeal in GFE24 v Minister for Immigration and Citizenship (2025) 313 FCR 210, where it was relevantly noted (at 218-9 [27]; Jackman J, Collier and Younan JJ agreeing) that:

27.    The Minister submits, and I accept, that in applying the apprehended bias test, the fair-minded lay observer is to be imputed with knowledge of the key elements of the statutory scheme: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [59] (Nettle and Gordon JJ); Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23] (Kiefel, Bell, Keane and Nettle JJ). As the Minister submits, and consistently with the primary judge’s reasoning, the fair-minded lay observer would be aware:

(a)    of s 501(3A) of the Act that requires the Minister to cancel a visa where the visa holder is serving a sentence of at least 12 months’ imprisonment, and of s 501CA(4) of the Act that empowers a delegate, and on review, the Tribunal, to revoke that cancellation;

(b)    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;

(c)    that the legislature expressly conferred a power upon the Minister to set aside the Tribunal’s [D]ecision and cancel the visa under s 501BA in the national interest, which is a matter about which the Tribunal was not required to be satisfied when it made its decision under s 501CA(4);

…

89    Acknowledging the skill with which they were advanced, Mr Sciascia’s submissions must be rejected. The words that s 501BA(3) employs are straightforward. The reference to the “rules of natural justice” means just that: the constituent body of rules that includes what has been described above as the “hearing rule” and the “bias rule”. The words do not admit of ambiguity and this court must honour the very clear legislative intent that animates them. It is not open to the court to interpret “[t]he rules of natural justice” as though a reference to “not all of the rules of natural justice”.

90    To do so would be impermissibly to construe the provision according to what the court should consider is its desired or desirable operation. That is not how courts should construe legislation: Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378, 390 [26] (French CJ and Hayne J). It is no part of the judicial function to give effect to “judicially constructed policy”, nor for the court to, “…construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose”: Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, 14 [28] (French CJ, Hayne, Kiefel and Bell JJ).

91    Whatever the inferences about Parliamentary intent that might be drawn from the extrinsic materials, none can alter the obvious import of the statutory text: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 265 [33] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Kline v Official Secretary to the Governor-General (2013) 249 CLR 645, 659-60 [32] (French CJ, Crennan, Kiefel and Bell JJ). In any event, such indications as might be available are far from conclusive here. Mr Sciascia seeks to make much of the fact that that material does not expressly refer to the ouster of the bias rule; but nor does it expressly address the hearing rule. Paragraphs 85 and 86 of the Bill’s Explanatory Memorandum are not, in my view, especially illuminating.

92    The broader context and purpose considerations are only marginally more complex. There is a degree of circularity to the contention that the assessment of the existence of an actionable apprehension of bias is informed by the architecture of the statutory scheme—and, therefore, that Parliament should not be understood to have intended to oust the rule against bias by virtue of that very architecture. In many cases, interpreting s 501BA(3) of the Act so as to oust the bias rule would have the same effect as GFE24-style reasoning. Instinctively, the concerns expressed in Jama and the authorities referred to in the GFE24 proceedings are proverbially two sides of the same coin.

93    Structurally, s 501BA represents an executive-level power of “veto”. It may only be exercised personally by a minister who is satisfied that cancellation is in the national interest, after the receipt of representations from the visa holder at a ministerial delegate and often also tribunal level. It is the final rung on the character-based cancellation ladder.

94    Considerations of context and purpose provide little assistance in construing references to “natural justice” in s 501BA of the Act. If anything, they—along with the text itself—support the adoption of the ordinary meaning. I consider that Parliament has expressed its intention to oust the bias rule with, to borrow a phrase from the authorities, “irresistible clearness”: Potter v Minahan (1908) 7 CLR 277, 304 (O’Connor J).

95    Respectfully, none of Mr Sciascia’s contentions extends further than to suggest that, when the legislature referred in s 501BA(3) of the Act to “[t]he rules of natural justice”, what it meant was, “[t]he rules of natural justice, except the one about bias”. It may be accepted that the exclusion of the rule against bias is a measure apt to inspire legitimate debate; but it is not the role of this court to intrude upon or frustrate equally legitimate expressions of legislative policy. Mr Sciascia’s invitation to do so must be rejected.

96    I acknowledge that it is inherent in that conclusion that s 501BA(3) of the Act also ousts the rule against actual bias. So to acknowledge is not to suggest that ministers are authorised to act with impunity in deciding a case otherwise than on its merits. Other grounds of review might operate to invalidate decisions made on such footings.

97    The analysis just completed suffices to address Mr Sciascia’s third ground of challenge. Nonetheless—and in deference to the submissions that the parties ably advanced—I should direct attention now to whether an apprehension of bias in fact existed in the present matter.

98    There is no controversy about the principles that guide the identification of an actionable apprehension of bias. They are set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, 163 [37] (Kiefel CJ and Gageler J). Put shortly, they require the court to identify, first, why a decision maker might have made an impugned decision otherwise than on its merits; and, second, what might logically link that circumstance to the apprehended departure from the merits. The apprehension must be reasonable in the mind of a fair-minded lay observer. That approach is oft expressed as the “double might” test: namely, that the proverbial lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of a question at hand.

99    In circumstances where it is said that the first matter (the “why”) is prejudgment, the remarks of Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 564 [185] (“Jia Legeng”) are apposite:

Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

100    As has already been recorded, those principles should not be applied in a vacuum. It has long been accepted that they apply differently to a person exercising an independent adjudicative function, for instance, from how they might apply to an administrative decision maker—especially one exercising powers in the national interest. I refer to, without repeating, the comprehensive overview of the authorities—and in particular, what fell from the High Court in Jia Legeng—in GFE24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 193, [62]-[71] (Rangiah J). Those authorities are, with respect, fairly summarised at [72] thereof: above, [87].

101    It is in that setting that Mr Sciascia relies upon a relatively narrow and fact-specific set of circumstances to establish the apprehension, namely (references omitted):

First, the Assistant Minister had earlier made a decision, in just 30 minutes, purporting to exercise the power in s 501BA(2) in respect of the same Applicant in largely the same circumstances. Given the complexity of the matters that needed to be considered in this earlier decision, and the consequences of the decision for the Applicant, the fair-minded lay observer might apprehend something of a rush to judgment in this earlier stage of the process.

Second, the Assistant Minister had proposed to defend that earlier decision against various allegations of jurisdictional error, only conceding one such error on a discrete issue. The fair-minded lay observer would take from this that the Assistant Minister thought there was nothing fundamentally (i.e. jurisdictionally) wrong with his earlier decision, save in one limited respect (that was capable of being remedied by re-making the decision).

Third, the Assistant Minister chose not to afford the Applicant an opportunity to be heard before re-exercising the power. While there was no legal obligation on the Assistant Minister to do so, as has been explained above it was open to the Assistant Minister to do so and was likely to be conducive to good administrative decision-making to do so. In those circumstances, and in the absence of an ‘innocent’ explanation for the failure to seek further information, the fair-minded lay observer might apprehend that the Assistant Minister’s mind was closed to any further information because his mind (even if subconsciously) was already made up.

Fourth, the Assistant Minister only considered the material and the matter for 56 minutes to 1 hour before making a decision. While this was longer than had been taken for the first decision, it is still very little time for a decision of this nature. In those circumstances, the fair-minded lay observer might be left with the impression that what had occurred here was little more than a ‘box-ticking’ exercise to show the making of a fresh decision against the background (even if subconsciously) of a pre-existing preference for a particular outcome.

It is the combination of these circumstances that the Applicant relies on. An analogy can usefully be drawn with those decisions that counsel against appeal courts remitting a matter to a trial judge who has made findings on issues that are likely to be dispositive on remitter. Considerations will include whether the decision-maker made adverse credibility findings, whether factual findings will need to be revisited, whether the original decision-maker’s views were strongly expressed, and the nature of the error established on judicial review (or appeal). Here, the Assistant Minister’s first decision included strongly worded conclusions plainly adverse to the Applicant. Ordinarily, these sorts of conclusions would justify remitter to a different decision maker. Here, however, there was no opportunity for such an order as s 501BA is non-compellable and thus mandamus could not go.

102    At the hearing, the suggestion that the Assistant Minister’s earlier conclusions were “expressed forcefully” (and not “equivocally”) was squarely put as a fifth circumstance. In support of it, Mr Sciascia relied primarily upon the following passage of the reasons:

I find that the Australian community could be exposed to significant harm should Mr SCIASCIA reoffend in a similar fashion. I could not rule out the possibility of further criminal conduct by Mr SCIASCIA. The Australian community should not tolerate any risk of further harm.

103    Do those matters suffice to clear the threshold of apprehended bias?

104    In short, no. It may be accepted, presently, that the question of whether the power under s 501BA of the Act should have been exercised a second time in respect of Mr Sciascia was one that required some form of fresh consideration. So too might it be accepted that the Assistant Minister had formed an initial opinion about how that question might be resolved; one that rested upon his view about the risk that Mr Sciascia might pose to the Australian community. But that does not mean that there is anything in the circumstances here presenting to suggest that the Assistant Minister would have been drawn to the same opinion without considering the case anew. His conclusions were not strongly worded in a sense reflective of some form of animus towards Mr Sciascia. They were expressed to rest upon the analysis that preceded them. That was orthodox.

105    Just as the proverbial lay observer is taken to appreciate the statutory architecture, so too should he or she be taken to appreciate the court’s power to review and quash administrative decisions that exceed statutory authority; and the potential that a minister might be called upon personally to remake a decision overturned by reason of jurisdictional error. Absent something more, I am not satisfied that such a person would reasonably apprehend that the Assistant Minister might have made the Cancellation Decision otherwise than on its merits.

106    What, then, might the proverbially reasonable lay observer be led to think about the Assistant Minister’s failure to hear from Mr Sciascia before remaking the Cancellation Decision?

107    There was no obligation on the part of the Assistant Minister to hear from Mr Sciascia before making the Cancellation Decision, nor even to consider whether to do so. Mr Sciascia calls for an “innocent explanation” for the Assistant Minister’s preference for that course. None is required. The failure to afford Mr Sciascia an opportunity to provide submissions ahead of the Cancellation Decision is not a circumstance that, individually or cumulatively with others, gives rise to an apprehension of bias in the mind of the proverbially fair-minded lay observer.

108    Nor does the time that the Assistant Minister took in making the decision. I have already found that the Assistant Minister’s attention to Mr Sciascia’s case was sufficient in duration to sustain “active intellectual consideration” of its merits. It is simply not a circumstance (individually or taken together with any others) that might lead the proverbially fair-minded lay observer to suspect that the Cancellation Decision was made otherwise than on its merits.

109    It is unnecessary to consider, with any granularity, whether the Assistant Minister’s earlier consideration of 30 minutes (the first of the matters upon which Mr Sciascia relies) is in the same category. Even if the short duration of that consideration were to ground an inference that that decision was not considered genuinely on its merits, that would not suffice to create a reasonable apprehension that the Cancellation Decision was not considered on its merits. The Assistant Minister was by then on notice of Mr Sciascia’s concerns in relation to the duration of his consideration of the matter (that being one of the grounds for review of the earlier s 501BA decision). The proverbial lay observer might even, in that universe, be just as likely to assume that the Assistant Minister would take extra care to consider on its merits whether to make the Cancellation Decision.

110    Mr Sciascia puts forward the possibility that the Assistant Minister might have “conscientious[ly] rush[ed] to judgment”. He suggests that the “Assistant Minister might get this identical brief with a slightly different statement of reasons, and conscientiously apply themselves to [the statutory task]…but nevertheless be influenced subconsciously by the confidently expressed and considered conclusions that they had previously made” (drawing an analogy with CNY17, 90-1 [28]-[29] (Kiefel CJ and Gageler J)). Even assuming that subconscious prejudgment might be possible, there is no extraneous material here “so appalling as to give rise to the perception” of subconscious (and relevantly improper) influence: cf. Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534. The actual duration of the consideration is—noting my conclusions with respect to ground one—an infirm foundation from which the hypothetical lay observer might think that such an influence operated here. That being the case, it could not reasonably give rise to any apprehension of bias.

111    It follows that, even if an apprehension of bias attending the making of a decision under s 501BA of the Act could suffice to ground jurisdictional error, Mr Sciascia’s third ground of challenge is not made good.

Disposition

112    None of Mr Sciascia’s grounds of review can succeed. His application for judicial review should (and will) be dismissed with the usual order as to costs.

Associate:

Dated:    22 September 2026