Australian Broadcasting Corporation v O'Neill

1. The application is dismissed.
2. The prospective applicant is to pay the costs of the prospective respondent, the Minister for Home Affairs, capped in the amount of $500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 This is an application made before the start of a proceeding commenced under r 7.01(1) of the Federal Court Rules 2011 (Cth). The order sought is an injunction restraining the Honourable Peter Dutton MP, Minister for Home Affairs, from exercising his power under s 501 of the Migration Act 1958 (Cth) personally in respect of any visa held by the prospective applicant. The prospective applicant is Mr Paul Burgess. Mr Burgess is the holder of a class BF subclass 155 resident return visa issued under the Act. 2 The application for relief was dismissed on 12 February 2018. In circumstances of urgency, brief oral reasons were given on that day. This is a written record of those oral reasons. 3 In June 2016 the prospective respondent made a decision cancelling Mr Burgess' visa on character grounds under s 501(3)(b) of the Act. This Court quashed that decision by orders made with the consent of the parties. On 16 September 2016 the Minister again made a decision purporting to cancel the visa under s 501(3)(b) of the Act on character grounds. By orders made today, 12 February 2018, this Court made orders quashing the decision of 16 September 2016 to cancel Mr Burgess' visa. 4 There were four grounds of review argued in the application for judicial review in connection with that decision. The first and third grounds of review alleged that the decision was affected by actual or apprehended bias, respectively. The second ground of review alleged that the decision was affected by legal unreasonableness in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The fourth ground of review alleged that the Minister did not and could not have given proper consideration to the materials presented to him. 5 I upheld the fourth ground of review for the reasons set forth in the reasons for judgment: Burgess v Minister for Immigration and Border Protection [2018] FCA 69 at [50] - [95]. In short, I found, as a question of fact, that the materials upon which the Minister purported to rely were put before the Minister no more than 15 minutes before the decision to cancel the visa was made. I determined on the balance of probabilities that in that short period the Minister did not and could not have given proper consideration to the evidence before him and could not, on the balance of probabilities, have made the findings of fact or made the evaluative judgments that a decision under s 501(3) of the Act requires. 6 In determining that the allegation of apprehended bias was not to be upheld, I emphasised that the "double might" test is one involving two degrees of likelihood. The first "might" concerns the likelihood, to be assessed by the Court, of the lay observer forming a reasonable apprehension of bias. The second "might" concerns the content of the apprehension itself. It requires an assessment of the likelihood that the decision-maker has a foreclosed mind as opposed to a predisposed opinion, so as to deviate from the course of deciding a case properly on its merits: Burgess at [34]-[35]. 7 The factual foundation for the present application is that set out in the affidavit of Mitchell Simmons, affirmed on 12 February 2018. Annexed to the affidavit, at MT-1 and MT-2 respectively, are printouts of media resources, being articles apparently published online by ABC News and the West Australian newspaper. The first of the publications, that published by ABC News, reports on the circumstance that the Honourable Peter Dutton cancelled the visa: … of one of Tasmania's most prominent bikies for the third time, within an hour of the Rebel MC member's successful High Court bid to have a previous cancellation decision declared invalid. 8 The West Australian article was to similar effect. It concerns a successful applicant for judicial review in the High Court, Mr Te Puia. The article reports that: A bikie held in immigration detention on character grounds for almost two years has been kicked out of the country - despite winning a High Court challenge against Federal Immigration Minister Peter Dutton last week. 9 Reference is also made in the affidavit of Mr Simmons to the applicants for judicial review before the Full Court of this Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173. Findings of fact were made by the Full Court in that matter to the effect that the Minister did not give proper consideration to the materials before him before cancelling the visas of the applicants in that case for a second time. 10 The Court is invited to find that there is a serious question to be tried as to whether a third decision affecting Mr Burgess by the same decision-maker would be affected by apprehended bias. In particular, the Court is asked to infer that the Honourable Mr Dutton MP has publicly stated, expressly or implicitly by his actions, an intention to "crack down" on persons who are suspected of being members of outlaw motorcycle gangs. 11 In respect of the first decision to cancel Mr Burgess' visa made in June 2016, the Minister expressed a suspicion that Mr Burgess was a member of an outlaw motorcycle gang (OMCG). That suspicion was brought to bear in the evaluation by the Minister of where the national interest lay; that is, whether it was in the national interest to cancel the visa. The suspicion was also brought to bear, and critically so, in the exercise of the residual decision to cancel or not cancel the visa. 12 As explained in the reasons for decision published earlier today, the reasons for cancelling the September decision did not contain any reference to there being a suspicion that Mr Burgess had any involvement in an OMCG: Burgess at [17]. 13 The materials to which the Minister had regard in respect of the September decision did not include the information relied upon earlier in June so as to support the suspicion that Mr Burgess had any such membership. In determining that the ground of review for actual bias was not made out, this Court has held that there was insufficient evidence to prove that the Minister had the requisite state of mind, namely that the Minister was in fact foreclosed to a decision other than the decision of cancellation. In determining that the ground for unreasonableness ought not be upheld, the Court expressed that it was not satisfied that the Minister reasoned or engaged in a path of reasoning that took into account the suspicion that had earlier been expressed in the June decision. 14 The decision of 16 September 2016 has been quashed. However, the Court has declined to grant remedies sought on the originating application to the effect that the original decision-maker ought be precluded or restrained from making any further decision to cancel Mr Burgess' visa. 15 I do not consider that the material set forth in the affidavit of Mr Simmons is sufficient so as to give rise to a serious question to be tried sufficient to justify the relief sought on the present application: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] - [72] (Gummow and Hayne JJ). I do not consider that the material is sufficient to enable the Court to confidently draw an inference that a fair-minded lay observer might apprehend that the same decision-maker might not bring an impartial mind to bear in the making of any third decision to cancel Mr Burgess' visa. 16 It is of course for the Minister to act lawfully in respect of the making of a third decision. In the event that a third decision was made, and the decision was found to be affected by apprehended bias, interim and urgent relief may be sought so as to prevent any person acting upon that decision so as to bring about the removal of Mr Burgess from Australia. 17 The Court bears in mind that if a decision affected by jurisdictional error were to be made by the Minister, Mr Burgess may be lawfully detained under s 189 of the Act by a person who reasonably suspects Mr Burgess to be an unlawful non-citizen in the meaning of the Act, and that he may be lawfully detained whether or not the decision is affected by jurisdictional error. 18 However, in determining where the balance of convenience lies, the Court also bears in mind that the delegate of the Minister, or, indeed, some other person who was able to personally exercise the powers of a Minister may make a decision to cancel the visa. Issues might arise as to whom an application to revoke such a decision might be made, but that is not an issue that the prospective applicant himself has raised in submissions, and nor has the prospective respondent. In the ordinary course, the Honourable Mr Dutton MP would be entitled, having regard to the reasons for the decision that I have published, to give proper consideration to the merits of a further decision to cancel the visa. 19 I have, in my reasons for decision from [50] onward, explained what it means to give proper consideration to the merits of a decision. I have had regard to the circumstance that in respect of the decision made on 16 September 2016, the reasons for decision contained express assurances, for want of a better word, that the Minister had in fact given careful consideration to all of the material before him, and that the Minister had in fact made all of the factual findings referred to in the reasons and performed the complex evaluations that the decision required. I have taken into account that I have, in proceedings SAD 293 of 2016, made findings adverse to the Minister to the effect that the Minister simply did not do what the reasons for decision state he had done. 20 The Minister nonetheless has the benefit of the reasons for the decision that I have published today. As I have said, I am not satisfied on the material contained in the affidavit of Mr Simmons that an order restraining the Honourable Mr Dutton MP from personally making a subsequent decision ought be made. In so finding, I do not intend to foreshadow any decision a court might make as to whether or not the Honourable Mr Dutton MP or any other person should be restrained from acting upon a subsequent decision, but such an application would need to be determined on its merits, of course, having regard to the reasons for the decision and the material taken into account. 21 The urgent application constituted of proceedings SAD 36 of 2018 is dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.