HSKJ v Minister for Immigration and Multicultural Affairs
[2025] FCA 165
•7 March 2025
FEDERAL COURT OF AUSTRALIA
HSKJ v Minister for Immigration and Multicultural Affairs [2025] FCA 165
File number(s): WAD 182 of 2024 Judgment of: O'SULLIVAN J Date of judgment: 7 March 2025 Catchwords: MIGRATION — s 501BA of Migration Act 1958 (Cth) — where Minister for Immigration, Citizenship and Multicultural Affairs set aside decision of Administrative Appeals Tribunal to revoke visa cancellation — whether Minister’s public statements gave rise to an apprehension of bias — whether a fair-minded lay observer might reasonably apprehend that the Minister might not bring an impartial mind to making the cancellation decision and/or in deciding whether to exercise discretion to afford the applicant natural justice — application dismissed Legislation: Migration Act 1958 (Cth), ss 501(3A), 501BA(2) & (3), 501CA(4), s 501CA(4)(b)(ii) Cases cited: Asset Energy Pty Ltd v Commonwealth Minister for Resources [2023] FCA 86
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1419
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 60 Date of hearing: 19 November 2024 Counsel for the Applicant: Mr T Lettenmaier (pro bono) Counsel for the Respondent: Mr G Hill SC with Ms J Lucas Solicitor for the Respondent: The Australian Government Solicitors ORDERS
WAD 182 of 2024 BETWEEN: HSKJ
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
O'SULLIVAN J
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the Minister’s costs in an amount to be assessed if not agreed.
3.The name of the first respondent be changed to the Minister for Immigration and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’SULLIVAN J:
INTRODUCTION
The applicant is a citizen of Iraq, born in 1990, and arrived in Australia on 4 March 2010. On 5 January 2010, he was granted a Class XB Subclass 200 Refugee Visa.
Between 15 August 2011 to 25 January 2022, the applicant was convicted of a number of offences that involved, amongst other things: assault with intent to prevent arrest of a person; stealing a motor vehicle and reckless driving; and offers to sell/supply a prohibited a drug to another (methylamphetamine).
On 25 January 2022, the applicant was convicted of 11 counts of offer to sell/supply methylamphetamine. The applicant was sentenced to two 12-month cumulative terms of imprisonment, a six-month term of imprisonment to be served cumulatively, and various concurrent terms of imprisonment.
On 2 March 2022, the applicant was advised that his visa had been mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis that he had a substantial criminal record.
The applicant then made representations seeking revocation of the cancellation of his visa.
On 24 August 2023, a delegate of the Minister determined that the power to revoke the cancellation decision in s 501CA(4) of the Act had not been enlivened on the basis that the applicant did not pass the character test nor was there another reason why the cancellation decision should be revoked (the non-revocation decision).
On 1 September 2023, the applicant sought review of the non-revocation decision in the Administrative Appeals Tribunal.
On 30 November 2023, the AAT set aside the non-revocation decision and substituted it with a decision that the cancellation of the applicant’s visa be revoked pursuant to s 501CA(4)(b)(ii) of the Act. The fact that was determinative was the best interests of the applicant’s two-year-old daughter who would have been deprived of the opportunity of being able to know her father if the non-revocation decision was affirmed.
On 9 June 2024, the Minister exercised his discretion under s 501BA(2) of the Act personally to set aside the decision of the AAT and cancel the applicant’s visa. In so doing, the Minister was satisfied that the applicant did not pass the character test, and it was in the national interest (cancellation decision).
In making the cancellation decision, the Minister gave consideration to a bundle of documents prepared for him on 2 June 2024 which included, amongst other things, a draft statement of reasons and representations made by, or on behalf of, the applicant. The relevant material did not include the transcript of the hearing before the AAT. The Minister recorded that the total time taken in considering the submission and attachments was 2 hours and 30 minutes.
In his reasons, the Minister noted that under s 501BA(3) of the Act, the rules of natural justice do not apply to a decision under s 501BA(2) to set aside a non-adverse decision made by the AAT. The Minister proceeded without giving the applicant an opportunity to be heard before making a decision but indicated that consideration had been given to the information provided by the applicant in support of the original request for revocation and the AAT proceeding.
At the hearing of this application, the applicant relied on an amended originating application (AOA) filed 16 October 2024. The Minister did not oppose the applicant being granted leave to rely on the AOA.
Ground of Review
The single ground of review in the AOA, is that the cancellation decision is affected by jurisdictional error because of apprehended bias on the part of the Minister in making the cancellation decision and in deciding whether to exercise the Minister’s discretion to afford the applicant natural justice.
It is for the reasons which follow that the application is dismissed.
Principles
The principles applying to the test for apprehended bias are well-established and are not in dispute: Ebner v Official Trustee in Bankruptcy [2000] HCA 63.
In the migration context, the test was explained by Kiefel CJ and Gageler J (as his Honour then was) in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [37], [38]:
[37] The criterion for the determination of apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.
[38] Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
(citations omitted)
The applicant did not dispute that a Minister does not need to have an empty mind when making a decision he or she proposes to make in certain classes of cases (provided the statement does not disclose an error of law): Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [71], [72] (Gleeson CJ and Gummow J).
In Jia, the High Court set out parts of an interview with the Minister at [17], [18]:
17.… The interviewer asked what the law provided as to whether a person was of good character. The Minister said:
What we are looking at here is the commission of offences. I don't believe you are of good character if you've committed significant criminal offences involving penal servitude. The law does actually write down that that is the test and it adds another test ... if you are known to associate with organisations that are involved in criminal activity, you can be found to be of not good character.
18. When asked, in effect, what he could do about it, the Minister said:
I'm considering what steps I can take and there are some avenues. One of the suggestions that's been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow and I also have to look at the issue as to what the potential cost might be to the community if it opens up a whole host of other possible appeals to the Federal Court.
The High Court held that comments made by the Minister on the radio and in a public letter to the AAT did not give rise to an apprehension of bias. Those comments related to Mr Jia’s individual case and the nature of the character test. Gleeson CJ and Gummow J observed at [61], [63] that:
“… the Minister functions in the arena of public debate, political controversy, and democratic accountability” and that “… other consequences that flow from the circumstance that power is vested in, and exercised by, a Minister … Relevantly to the present case, they include the consideration that the conduct of a Minister may need to be evaluated in the light of his or her political role, responsibility and accountability.”
Their Honours continued at [104], that there was a measure of artificiality about treating the rules of natural justice and the legislation as requiring the Minister in exercising the powers under ss 501 and 502 to avoid doing or saying anything that would create an appearance of the kind which could lead to an apprehension the subject of the apprehended bias rule in the case of a judge.
Significantly, in Jia, Hayne J explained at [190]-[192] that:
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.
In QYFM at [72], Gordon J observed that:
[t]he fair-minded lay observer is taken to be aware of the nature of the decision of the context in which it was made in the circumstances leading to the decision. The fare-minded lay observer is taken to have “a broad knowledge of the material objective facts”, as distinct from a detailed knowledge of the law of the character and ability of the decision-maker.
(Citations omitted)
In the recent decision of Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1419, Button J, after referring to the observations of Hayne J in Jia set out above, said in relation to the fair-minded observer at [28]:
As set out in QYFM at [46]–[49] (Kiefel CJ and Gageler J), [72] (Gordon J) and [249]–[256] (Gleeson J) (see also Zaburoni at [65]–[66] (Farrell J)), the fair-minded lay observer is aware of the nature of the decision to be made and the circumstances leading to the decision, and is neither complacent nor unduly sensitive or suspicious, but is aware that information and attitudes can still have a subconscious effect, even if the decision-maker conscientiously seeks to disregard them. The lay observer is also not so dispassionate as to be insensitive to the impression circumstances will have given. The fair-minded lay observer is not taken to have detailed knowledge of the law, or of the character or ability of a particular decision-maker, but will understand the capacity of the decision-maker to disregard irrelevant, prejudicial or immaterial matters: QYFM at [48]–[49] (Kiefel CJ and Gageler J).
Statutory provision
Section 501BA of the Act applies if, relevantly, the AAT makes a decision under s 501CA to revoke a decision made under s 501(3A) to cancel a visa that has been granted to a person. Pursuant to s 501BA(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 particular provisions; and (b) the Minister is satisfied that the cancellation is in the national interest.
Section 501BA(3) provides that “[t]he rules of natural justice do not apply” to a decision under s 501BA(2).
Submissions and consideration
Applicant’s submissions
The applicant submits that a number of statements made by the Minister to the media might have led him to exercise the power under s 501BA(2) other than on the legal and factual merits of the applicant’s particular circumstances.
The applicant relies on three statements made by the Minister to the media:
(a)An ABC article that included a transcript of the Minister on the ABC’s Afternoon Briefing on 29 May 2024;
(b)A transcript of an interview on Sky News between the Minister and Mr Kieran Gilbert on 30 May 2024; and
(c)A media release from the Minster on 3 June 2024.
There is no dispute the Minister made the statements.
ABC interview
During the ABC interview, the Minister stated that:
(a)The AAT’s decisions involving serious offending lacked common sense;
(b)The AAT had made decisions that did not meet community expectations and were inconsistent with the intent of Direction 99; and
(c)The Minister had set aside six AAT decisions for that very reason.
Sky News interview
During the Sky News interview the Minister stated:
(a)The AAT’s decisions involving serious offending did not meet the Minister’s expectations and that it was in the national interest that those decisions be overturned so the community can be kept safe;
(b)The exercise of his discretion would be in accordance with his view about the national interest (i.e., that non-citizens who commit serious offences will have their visas cancelled) and the “absolute imperative of community safety”; and
(c)Eight visas had been cancelled and that there were “many more underway”.
Media release
In the Minister’s media statement, he said:
(a)He had set aside 30 AAT decisions that revoked the cancellation of visas involving serious offending; and
(b)It was “clear that the Administrative Appeals Tribunal’s decision to reinstate these visas did not meet community expectations, and Ministerial Direction 99 has not been working as the Government intended”.
The applicant submits, by reference to the above interview and media release, that cumulatively, the Minister conveyed the following imputations and therefore approached the visa cancellation decision from a position of pre-judgment:
(a)AAT decisions to revoke the cancellation of visas where a non-citizen had committed serious offences were both unreasonable and involved an incorrect interpretation of Direction 99;
(b)The national interest meant that the protection of the Australian community would always outweigh other considerations, irrespective of the particular circumstances of any matter; and
(c)It was inevitable that when exercising power under s 501BA(2), the Minister would decide not to afford an applicant natural justice and decide to set aside the relevant AAT decision.
The applicant submits that it is significant that they were not provided the opportunity to submit written submissions or further information in circumstances where: (i) the Minister did not have a transcript of the AAT hearings dated 6 and 20 November 2023; (ii) there was further information relating to additional charges that the AAT had not considered; (iii) six months had passed since the AAT decision; and (iv) the documents provided to the Minister included a draft statement of reasons in support of setting aside the AAT decision.
Having identified the statements, the applicant submits the Minister’s statements were logically connected to the Minister’s decision notwithstanding that they did not specifically refer to the applicant but because it fell into the class of decisions which the Minister was referring to in his statements: QYFM at [38].
The applicant submits that the fair-minded observer would consider the Minister’s media statements against the background that the power under s 501BA(2) of the Act excludes natural justice and is “draconian”.
Still further, the applicant submits the Minister’s statements disclose an error of principle by fettering the Minister’s discretion under s 501BA(2) both in relation to the Minister’s decision not to afford the applicant natural justice and setting aside the AAT’s decision.
Finally, the applicant contends that there was an apprehension of bias on the part of the Minister as the statements were made in public and there were political consequences if the Minister did not adhere to his publicly stated position.
In all those circumstances, the applicant submits a fair-minded lay observer might apprehend that the Minister might not have brought an open-mind to the exercise of power of s 501BA(2) and that such an error is material.
Respondent’s submissions
The respondent submits that none of the Minister’s statements give rise to the imputations set out above, and there is no reasonable apprehension of bias. To the contrary, the respondent submits that the Minister clearly stated that he would “consider” whether to cancel visas where a serious offence was committed and that this does not connote a blanket view that in every decision, an applicant would not be afforded natural justice and the AAT’s decision would be set aside.
Further, the respondent submits that whereas the applicant sought to highlight the number of visas cancelled as confirmation of the Minister’s prejudgment, those statements do not encompass consideration of any future cancellation decisions.
The respondent also contends that the Minister’s statements are entirely consistent with the Minister’s recognition that any statutory powers must be exercised having regard to the individual circumstances of a case, and that the Minister had to, and would be, applying the statutory test to the visas he would be considering.
In response to the applicant’s contention that s 501BA(2) is “draconian” and that the applicant was not given an opportunity to make further submissions, the respondent submits that it is irrelevant to the principles of apprehended bias whether the relevant law is “draconian”, nor is it relevant that the Minister was not provided with further submissions. The respondent submits that the crucial point is that the Minister recognised that he would still have to consider the individual circumstances of each case before making a decision.
Finally, the respondent submits that the Minister was entitled to make statements in accordance with his views on national interests and community safety, and that these views fall within the ambit of his political role. In making that submission, the respondent distinguishes the facts in these proceedings from those in Asset Energy Pty Ltd v Commonwealth Minister for Resources [2023] FCA 86, where the parties consented to the decision in question being quashed on the basis of apprehended bias. In that matter, the Minister had indicated his opposition to a specific application under consideration, before he was briefed with respect to the application.
The respondent submits that unlike Asset Energy, although the applicant forms part of a general class to whom the Minister’s comments were directed, nonetheless, the Minister is required to consider the individual circumstances of each applicant before making a decision which is what occurred.
Consideration
Each case will turn on its own particular facts.
The ABC interview was not directed to the applicant’s case and the Minister was explaining that the Government was pursuing a revised ministerial direction because Direction 99 had not produced outcomes in the AAT that the Government had expected.
Button J dealt with the same ABC interview in Jama. Her Honour observed that the Minister’s statements were made in general terms and that there were “… only some of the Tribunal decisions that had the characteristics to which the Minister had referred.” Her Honour also concluded that, “the Minister’s statements did not convey that all of the Tribunal’s decisions in cases involving serious offenders lacked commonsense, were inconsistent with community expectations or inconsistent with Direction 99.”: at [29], [30].
With respect, I agree with her Honour’s observations.
The Minister’s comments fell within the bounds of his political role and conveyed the view that some of the AAT’s decisions, “… were hard to reconcile with any sense of the expectations of the Australian community, nor frankly common sense”.
So too, the Minister’s statements regarding community expectations and community safety fell within the ambit of his political role. The nature of the statutory task was to reach a degree of satisfaction as to whether a person does not pass the character test and that the cancellation is in the national interest. A decision-maker may legitimately form and hold views about elements of the decision-making process before coming to consider the exercise of the power in a particular case: Jia [190]-[192].
In the Sky News interview, the Minister referred to a number of decisions he had already made where the decision of the AAT did not meet his expectations. The Minister explained that in each of the cases he had considered it was in the national interest that the visas continue to be cancelled so the community can be kept safe.
The Minister continued, however that he had to apply the test and that he would consider the submissions in accordance with his view about the national interest and the imperative of community safety.
I accept the respondent’s submission that the Minister recognised that any statutory powers must be exercised having regard to the individual circumstances of each case and that he had to, and would be applying, the statutory test to the visas he was considering. I also accept that those statements do not establish the prospect that the Minister approached the cancellation decision with an impermissible pre-judgment.
Button J also dealt with the Sky News interview in Jama at [33]-[35]. At [35] her Honour considered that:
Accordingly, the fair-minded lay observer would, with knowledge of the “nature of the decision” (QYFM at [72] (Gordon J)), be aware that the nature of the decision to be made by the Minister was an evaluative one taking into account the Minister’s assessment of the national interest, that the Minister would be receiving and considering submissions on potential cancellations, and that the Minister would need to make a decision himself on each cancellation submission coming before him.
Once again, with respect I agree with her Honour’s observations.
As to the Media release, the Minister revealed that he had cancelled 30 visas of non-citizens with serious criminal histories in the national interest. The Media release continued that:
It is clear that the Administrative Appeals Tribunal’s decision to reinstate these visas did not meet community expectations, and Ministerial Direction 99 has not been working as the Government intended.
Button J observed in Jama, that the statements made by the Minister, which were critical of the AAT, “are of a similar character to the statements made by the Minister in Jia, which statements were found by the majority not to give rise to an apprehension of bias”: Jama at [37].
Button J also dealt with the same media release in Jama. I agree with Button J’s observations, but irrespective of Jia, in the particular circumstances of this matter, the Minister’s public statements, whether taken individually or cumulatively, are not such that a fair-minded lay observer might reasonably apprehend that the Minister might not bring an impartial mind to the resolution of the question that the Minister was required to decide.
Specifically, they do not support the applicant’s contention that the cancellation decision is affected by jurisdictional error because a fair-minded lay observer might reasonably apprehend that the Minister might not have brought an open mind to making the cancellation decision and/or in deciding whether to exercise discretion to afford the applicant natural justice.
CONCLUSION
It is for these reasons that the application is dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. Associate:
Dated: 7 March 2025
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