BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Introduction 268 The appellant, who is now 32 years old, is a national of Syria who arrived in Australia by boat on 15 November 2012. After an initial period of detention, he was, on 16 January 2013, granted a temporary humanitarian stay visa with an associated bridging visa and commenced living in the community. On 3 February 2014, the appellant was again in immigration detention, having been detained by the respondent Minister under s 189(1) of the Migration Act 1958 (Cth) (Act), following an incident detailed below which took place after he was told about the violent death of his mother (as it turned out, apparently incorrectly). He has remained in detention since then. 269 On 8 July 2015, the appellant wrote to the first respondent, the Minister, seeking the exercise of discretion to be released back into the community, and explaining the events that had led to his return to immigration detention and other events detailed below. That request was unsuccessful. 270 On 27 June 2016, the appellant lodged an application for a temporary protection visa. On 4 February 2019, the grant of that visa was refused by the Minister. The Minister did so in the exercise of the discretionary power under s 501(1) of the Act, after determining that the appellant had not satisfied him that he passed the character test contained in s 501(6)(d)(v). 271 The appellant's application for judicial review of the Minister's decision was dismissed by a Judge of this Court on 17 June 2019: BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929. This is an appeal against that dismissal.

The visa refusal process 272 By a letter dated 7 August 2017, the Minister sent the appellant a notice of intention to consider refusal of his 27 June 2016 protection visa application (Notice, also referred to by the primary judge as the NOICR). The Notice informed the appellant that consideration would be given to refusing his protection visa application on character grounds under s 501(1) of the Act. The Notice also advised that, in considering whether he passed the character test, the decision-maker would have regard to a number of matters which were detailed in attachments to the Notice, and also certain non-disclosable information. 273 Section 501 relevantly provides: 501 Refusal or cancellation of visa on character grounds Decision of Minister or delegate - natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Note: Character test is defined by subsection (6). … Character test (6) For the purposes of this section, a person does not pass the character test if: … (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would: … (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; … 274 The Notice, when read with its attachments, identified three aspects of the appellant's conduct that, as the primary judge observed, ultimately formed the central basis for the Minister's refusal to grant the protection visa: (1) On 12 January 2014, he received a telephone call from his brother in Syria, telling him that his mother had been killed by a bomb. He became distressed and got into an argument at the premises he was attending to obtain a knee massage about payment for services that had not yet been provided. Police were called, who referred him for emergency psychiatric assessment at a hospital. On the material that was before the Minister, he had stated that he wanted to die and that he wanted to go back to Syria and blow himself up. (2) On 4 and 6 February 2014, he was interviewed by police. During those interviews he made reference to meeting with a man representing Al Qaeda in the period from June to November 2013, to meeting with an Australian man at a Mosque, to a warehouse containing rocket-propelled grenades and guns, and to training he had received to go back and fight in Syria, including six months training on Sumbawa Island. (3) Between 2014 and 2015, while back in immigration detention, the appellant had been involved in a number of incidents: (a) a threat to pour a mixture of hot water and sugar on another detainee; (b) on 24 June 2014, threatening to kill another detainee after being assaulted by that detainee; (c) on 6 April 2015, telling a client services manager that he wanted to kill him because that person was always serious and because he had been hearing voices telling him that person was an infidel; (d) on 20 April 2015, contacting the Department's Global Feedback Unit via an interpreter and stating that if he was sent back to Syria he would blow himself up; and (e) allegations that the appellant had been attempting to recruit detainees to fight for the Islamic State of Iraq and the Levant (referred to as ISIL) in Syria. 275 The Notice also informed the appellant that the decision-maker may consider other information which was "non-disclosable information" as defined in s 5(1) of the Act. That meant, the Notice continued, that when making the decision under s 501(1), the decision-maker may have regard to information which would not be provided to the appellant. While the Minister contended that the use of this non-disclosable information presented a significant hurdle to the appeal succeeding, it was not ultimately necessary to consider this argument for the purposes of this decision. 276 Under the heading "Enclosures", the Notice stated (emphasis added): The following documents are also enclosed. These documents constitute the disclosable information held by the Department which the decision-maker may rely on to decide whether you pass the character test, and, if you do not whether your application for a visa should be refused. 277 The numerous documents attached to the Notice included: (1) the appellant's application for a protection visa lodged on 27 June 2016; and (2) the submission which the appellant had made to the Minister on 8 July 2015, seeking an exercise of discretion by the Minister to allow him to be released into the community and to remain in Australia, which included a letter from the appellant bearing the same date. That letter relevantly included the following sentence: My use of English may not be perfect and definitely not fluently but I do not pose a risk to the Australia Community, as evidenced by my peaceful existence in Sydney for 12 months I spent in the Australian Community on a bringing visa. It is convenient to refer to this sentence as the peaceful existence submission. 278 On 4 September 2017, the appellant, via his migration agents, provided detailed submissions in response to the Notice. In that response, the appellant commented in detail on the incidents summarised above at [274], submitting that his bipolar disorder, which manifested between January 2014 and April 2015, was the primary reason for any such conduct. 279 The appellant emphasised that he had never been charged with any offences arising from those alleged incidents. He relied upon having been cleared by the Australian Security and Intelligence Organisation (ASIO) and the police of being any adverse security risk, and noted that threats alleged to have been made to other immigration detainees were provoked and that he had never perpetrated any harm or violence, nor been disciplined. As there had not been a recurrence of his bipolar condition, he submitted that there was no risk that he would become involved in activities that were disruptive or violent to the Australian community. 280 The appellant also submitted that the Australian community would not expect him to be refused a visa, made detailed submissions about Australia's non-refoulement obligations and relied upon credible country information about the situation in Syria. 281 The appellant's response to the Notice did not contain any overt reference to either the peaceful existence submission, or to the 8 July 2015 letter containing that submission.

The Minister's protection visa refusal decision 282 At the commencement of his reasons, the Minister recorded that, in relation to his consideration of the appellant's satisfaction of the character test and his exercise of the discretion, he had had regard to non-disclosable information as defined in s 5(1) of the Act, and to the submissions made on the appellant's behalf in response to the Notice, "as well as other relevant information as outlined below". 283 The Minister's reasons (as reproduced below) indicate that he accepted that the appellant's conduct from January 2014 to April 2015 was caused by his bipolar disorder, that this condition may have been exacerbated by his being held in immigration detention, and that he had improved since April 2015. 284 In relation to the incident on 12 January 2014, the Minister noted the appellant's explanation and submissions concerning it. In particular, the Minister noted the appellant's claim that he had been upset at the time having just been informed of his mother's death, his claim that his threats had been directed to self-harm rather than harm to others, that his reaction was attributable to his bipolar disorder, and that, by reason of language difficulties, the New South Wales Police may have misunderstood what he was saying. The Minister also noted the appellant's acknowledgement that "I must have said a lot of things that I cannot remember at that moment in time because of the news my mother had passed away". The Minister then concluded (at [16]): Having regard to NSW Police's descriptions of the incident, as set out in the documents mentioned above, as well as [the appellant's] explanations, I am satisfied that [the appellant] did make a threat to kill himself with a bomb on this occasion, although he may no longer remember this himself. I have made this finding despite having accepted that [the appellant] has no criminal history in any country, and having had regard to his United Arab Emirates Police Certificate, which contains a certification provided by Dubai Police that [the appellant] had no previous convictions as at 1 November 2016. 285 The Minister then considered a police report from when the appellant had been interviewed on 4 February 2014. The report stated that the appellant had claimed to have met a representative of Al-Qaeda, to have met a man at the Chester Hill Mosque with some association to a warehouse containing rocket-propelled grenades, and to have received training with a view to returning to Syria to fight. The Minister noted that the appellant denied having any of these associations and that the statement attributed to him had occurred at a time when he was manic. The Minister concluded (at [21]): While the veracity of the claims made by [the appellant] during the police interview on 4 February 2014 remains unclear, I have found that the fact that he made those claims at all may demonstrate an ideology of security concern, which I take seriously particularly given the current global context. 286 The Minister accepted that the appellant had made the threats recorded by detention centre staff. These were recorded by the Minister as follows (at [22]): • On 3 March 2015, [the appellant] stated to a Client Services Manager that if he saw a particular detainee, he would assault him and throw a mixture of hot water and sugar mix on his face. • On 24 June 2014, following an assault from another detainee, [the appellant] threatened to kill the other detainee. • On 6 April 2015, [the appellant] approached a Client Services Officer (CSO) and stated that he wanted to kill him. When asked why he wanted to kill the CSO, [the appellant] stated that 'it's because you are always serious'. In relation to this incident, a Security Information Report provided by Serco on another incident on 7 April 2015 also notes that '[t]he other day [the appellant] threatened to kill a Hotham Staff member because he was allegedly hearing voices telling him that he is an infidel'. 287 The Minister then considered an incident report which indicated that the appellant had contacted the Department's Global Feedback Unit and had said that if he was sent back to Syria he would blow himself up. The Minister also referred (at [29]) to a report from a Detention Centre staff member that, in February 2014, the appellant had: • stated that he had been employed, on a voluntary basis, by a company in Lakemba, transferring money from Australia to Syria to be used for 'the war'; • stated that he is friends with Osama Bin Laden's son who has offered to send guns to him in Australia; and • extolled the virtues and philosophy of Osama Bin Laden at length. 288 Next, the Minister considered a security information report recording allegations by fellow detainees that the appellant had, while in detention, been attempting to recruit detainees to fight for ISIL. Having considered the appellant's explanation and submissions concerning these matters, the Minister said that he was satisfied that the appellant had engaged in the conduct, and had made the statements, which the various records attributed to him. 289 The Minister referred to the evidence provided by International Health and Medical Services, contracted by the Department to provide health care within the Australian detention network, which stated that the appellant's irrational behaviour was "directly linked to his return to held detention" which was "not appropriate or [conducive] to [the appellant's] major mental health condition". The Minister then noted information indicating that the appellant had not been charged with any criminal offence, and did not have a criminal record. The Minister also accepted that the appellant's mental health condition had improved since April 2015. The Minister concluded (at [39]): Having regard to the above, I accept that [the appellant's] behaviour has improved since April 2015, and that his previous conduct, as recorded in the documents provided by NSW Police and the reports provided by Serco staff as outlined above, has resulted from his mental health condition, which may have been exacerbated by being held in immigration detention. However, I have also considered the non-disclosable information in this regard. 290 On the question of whether the appellant had satisfied him that he passed the character test, the Minister concluded: [44] I have accepted that [the appellant's] previous conduct, as described by NSW Police and Serco staff in the documents mentioned above, has resulted from his bipolar effective disorder, and that his mental health and behaviour have improved since April 2015. I have also considered the submissions made by [the appellant's] migration agent that his conduct does not amount to serious conduct and is not a genuine reflection of his character. [45] However, I have found that there remains a risk that [the appellant] would represent a danger to the Australian community by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, the Australian community. In coming to this conclusion, I considered that the pattern of behaviour he has exhibited, including his threats to blow himself up in January 2014 and April 2015, his repeated claims of association with extremist groups and the threats he made to other detainees and Serco staff while in detention, are of significant concern. I have found that, even if his claims about his association with extremist groups are not true, the very fact that [the appellant] has repeatedly made those claims may demonstrate an ideology of security concern, which I take seriously particularly given the current global context. In this regard, I have also considered the non-disclosable information. [46] Although I consider there is a low likelihood of [the appellant] carrying out his threats, I consider it to be more than a minimal or remote chance. Further, I considered that the threats made by [the appellant] cannot be ignored in the current global context. In this respect, I considered that, in the event that any of [the appellant's] threatened activity (including his threat to blow himself) was carried out in Australia, this would likely result in significant harm to the Australian community. [47] I have therefore found that [the appellant] has not satisfied me that he passes the character test. Specifically, I have found that [the appellant] does not pass the character test by virtue of section 501(6)(d)(v) of the Act. 291 Having found that the appellant had not passed the character test by reason of s 501(6)(d)(v), the Minister then considered whether to exercise his discretion to refuse the protection visa. On the question of the risk to the Australian community, the Minister concluded: [59] I noted that it has been submitted that [the appellant's] mental health concerns between 2014 and 2015 should be 'held in isolation', and were triggered by a period of extreme stress following the receipt of information that his mother had died and by being re-detained in a high security detention facility. His migration agent noted that, prior to 2014 and following 2015, [the appellant] has not experienced any acute episodes of bipolar and submitted that, in this context, the risk that [the appellant] poses to the Australian community if he engages in similar conduct is very low. I noted that [the appellant] has also submitted that he does not pose a risk to the Australian community. [60] I noted the submissions that [the appellant] has never perpetrated any harm or violence against any person, nor been subjected to any further discipline action since April 2015 aside from referrals for medical assistance. I have also taken into account submissions that [the appellant] has never been charged with any offences and has been subsequently cleared from any investigations by ASIO and the police on the basis that [the appellant] is not an adverse security risk. [61] While submissions made by or on behalf of [the appellant] tend to suggest a low likelihood of [the appellant] carrying out his threats, the likelihood is not negligible. In this respect, I have also considered the non-disclosable information. Should [the appellant] carry out his violent threats in Australia, it would likely result in injury or loss of life to members of the Australian community. [62] Having particular regard to the extremely serious nature of the claims and threats made by [the appellant], I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community. I have placed significant weight on this consideration. 292 The Minister then considered expectations of the Australian community, and concluded as follows: [65] I have also considered submissions made that refusal of [the appellant's] visa would be contrary to the Australian community's expectations given [the appellant's] 'very compelling protection claims', and that the Australian community's expectations would be that the risk of indefinite detention should outweigh [the appellant's] previous conduct, which it has been submitted was not serious or genuine in nature and does not pose an ongoing risk to the Australian community. [66] However, I considered that the Australian community would place greater weight on the need to protect the Australian community in light of the nature and seriousness of the claims and threats made by [the appellant] and the current global context, and would expect that [the appellant] would not be granted a protection visa. I have placed significant weight on this consideration. 293 Under the heading "International non-refoulement obligations", the Minister accepted that the appellant faced a well-founded fear of persecution and threat to life if returned to Syria, that Australia owed him non-refoulement obligations which would be breached if he was returned to Syria, that a legal consequence of the decision was that he would be liable to removal from Australia as soon as reasonably practicable without regard to those non-refoulement obligations, and that there was no known prospect of removal to any country other than Syria. The Minister then noted that the obligation to remove the appellant would not apply if he exercised a non-compellable power under s 195A of the Act to grant the appellant a visa if he believed doing so was in the public interest, or invited the appellant to apply for a bridging visa, though provided no indication of whether this would be done: [67] I have had regard to submissions made on [the appellant's] behalf regarding [the appellant's] protection claims. I accept that my Department has found that [the appellant], if returned to Syria, would face a well-founded fear of persecution at the hands of the Assad-led regime or opposing rebel forces including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance. [68] I accept the Department's finding that [the appellant] is a person in respect of whom Australia has international non-refoulement obligations. This means that removal of [the appellant] to Syria would breach those obligations. I also accept that there is currently no known prospect of removal to any other country. [69] I am aware that the statutory consequence of a decision to refuse to grant [the appellant] a visa is that, as an unlawful non-citizen, [the appellant] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime, detention under section 189. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen. [70] I have noted that the obligation to remove [the appellant] would not apply if, following my refusal to grant him a Temporary Protection (subclass 785) visa, he is granted another visa. However, I am aware that as a result of a refusal decision under section 501(1), there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the appellant] will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless I determine, under section 48B of the Act, that section 48A of the Act does not apply to him). Application for a visa other than a protection visa will be subject to section 501E of the Act, which will apply to [the appellant] as a result of my refusal decision under section 501(1). [71] This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation. [72] I am mindful that even if I refuse to grant [the appellant] a Temporary Protection (subclass 785) visa, I have a personal non-compellable power in section 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the appellant's] favour, he will be liable to removal as soon as reasonably practicable in accordance with section 198 of the Act, including to Syria, having regard to section 197C. 294 The Minister then concluded by weighing up the relevant factors as follows: [76] In considering whether to refuse [the appellant's] visa, I considered the risk posed to the Australian community by [the appellant's] continued presence in Australia, taking into consideration the serious nature of the threats he has made. [77] I found that the Australian community could be exposed to significant harm should [the appellant] engage in conduct similar to that threatened. I could not rule out the possibility of [the appellant] engaging in serious conduct akin to that threatened. I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community. [78] Further, in light of the nature and seriousness of the claims and threats made by [the appellant] and the current global context, I considered that the Australian community would expect that [the appellant] would not be granted a protection visa. [79] I found the above considerations in favour of refusal outweighed the countervailing considerations in [the appellant's] case, including the potential harm for [the appellant] if he is returned to Syria, Australia's international non-refoulement obligations, and his mental health concerns. [80] I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient for me not to refuse the visa. In the present circumstances, I found that the risk posed by [the appellant] to the Australian community is unacceptable. DECISION [81] Having found that [the appellant] does not satisfy me that he passes the character test, and that the reasons for refusing his present visa application outweigh the reasons for not refusing it, I have decided to exercise my discretion to refuse to grant [the appellant] a Temporary Protection (subclass 785) visa under section 501(1) of the Act.

The notice of appeal 295 The originating application before the primary judge advanced six grounds of review. The amended notice of appeal now before this Court is narrower, and advances an overall first ground of asserted error on the part of his Honour in not finding jurisdictional error in the Minister's assessment of risk to the Australian community. The appellant seeks to make good that overall ground by reference to three further grounds of appeal, which effectively function as particulars to ground 1, citing particular paragraphs of his Honour's reasons for judgment as follows: [2] The primary judge erred in not finding that the respondent failed to consider relevant material, namely that the appellant had been living a peaceful existence in the Australian community for about 12 months from January 2013: [148]. [3] The primary judge erred in finding that a document provided by the respondent with his "Notice of intention to consider refusal of your visa application" [the 8 July 2015 request to be allowed to live in the community] was not information required to be taken into account by the respondent in determining to refuse the appellant's visa application: [147]. [4] The primary judge erred in not finding that the decision of the respondent, that the appellant does not pass the character test and that the reasons for refusing the appellant's visa application outweigh the reasons for not refusing it, was unreasonable: [100]. 296 Appeal grounds 2 and 3, which were part of judicial review ground 6 before the primary judge, concern the peaceful existence submission in the appellant's 8 July 2015 letter to the Minister, in relation to the period that he was in the community from early 2013 to early 2014. As already noted, the letter is dated almost a year before the appellant applied for a protection visa on 27 June 2016. The appellant asserted below, and continues to assert in this appeal, that this letter and the reference to a peaceful existence in the community, was a mandatory relevant consideration (ground 3) that was not taken into account as such (ground 2). 297 It is logical to deal with ground 3 first, because that concerns the threshold question of whether the 8 July 2015 letter was a mandatory relevant consideration, before turning to the question raised by ground 2 of whether that letter, and in particular the peaceful existence submission, was shown not to have been taken into account.

Ground 3 298 The primary judge primarily concluded (at [138] to [147]) that: (1) as the Minister was expressly required to have regard to all information in a visa application by s 54 of the Migration Act; (2) as the Minister was expressly required by s 55 to have regard to all further information provided by a visa applicant after such an application has been made; and (3) as the 8 July 2015 letter preceded the making of the protection visa application almost 12 months later, the 8 July 2015 letter, and in particular the peaceful existence submission, was not a mandatory relevant consideration and therefore could be, but was not required to be, taken into account. 299 The key relevant provisions in Part 2, Division 3, Subdivision AB, headed "Code of procedure for dealing fairly, efficiently and quickly with visa applications" are ss 51A and 54 to 57. They relevantly provide as follows: 51A Exhaustive statement of natural justice hearing rule (1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. … 54 Minister must have regard to all information in application (1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. (2) For the purposes of subsection (1), information is in an application if the information is: (a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55. (3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions. 55 Further information may be given (1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. (2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information. 56 Further information may be sought (1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa. (2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way. 57 Certain information must be given to applicant (1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or part of the reason: (i) for refusing to grant a visa; or (ii) for deciding that the applicant is an excluded fast track review applicant; and (b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and (c) was not given by the applicant for the purpose of the application. Note: Excluded fast track review applicant is defined in subsection 5(1). (2) The Minister must: (a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and (c) invite the applicant to comment on it. 300 The primary judge's reasoning concluded as follows (at [147]): Assuming that s 51A does not foreclose the possibility that mandatory relevant considerations might be implied, it is significant that: (a) ss 54 and 55 specifically identify what must be taken into account when considering a visa application; and (b) subdiv AB is expressed to be a "Code of procedure for dealing fairly, efficiently and quickly with visa applications". Sections 54 and 55 provide that the Minister must take into account all the information in the application and certain information received subsequently. The statutory language and context do not leave room for an implication that the Minister is required to consider material received before the visa application was made. 301 Ground 3 challenges that finding. Unless that challenge succeeds, ground 2 can go nowhere because there could not have been the jurisdictional error relied upon by the appellant in failing to consider the 8 July 2015 letter if it was not a mandatory relevant consideration. 302 The Minister, despite successfully having relied upon the argument before the primary judge that s 54 with s 55 was an exhaustive statement of what had to be taken into account, now abandons that reliance. He contends in other proceedings, and for consistency now in this appeal, that Subdivision AB has no application to visa refusal decisions on character grounds under s 501 of the Act. This was an indispensable, but not overt, part of the argument that was accepted by a majority of three out of five judges in Minister for Home Affairs v Ogawa [2019] FCAFC 98; 369 ALR 553 in finding, in that s 501 case, that s 56(1) compelled the Minister to have regard to all additional relevant information given by a visa applicant in response to an invitation by him. That conclusion was only possible if Subdivision AB, and thus s 56, applied to such a case. 303 The Minister applied for special leave to appeal to the High Court in Ogawa. That application was dismissed on 13 November 2019, a week after the hearing of this appeal: Minister for Home Affairs v Ogawa [2019] HCASL 375. The Minister did not advance any argument in this appeal that the presently constituted Full Court should depart from the Full Court decision in Ogawa insofar as it necessarily depended on Subdivision AB applying to a s 501 case. Absent a contrary High Court decision, the high threshold of finding that the majority decision in Ogawa was plainly wrong in proceeding upon that basis cannot readily be surmounted. Such a finding is not reasonably open and this Court therefore should proceed upon the basis that the practical effect of Ogawa is that Subdivision AB does apply to s 501. That then necessitates considering the appellant's arguments as to why the primary judge erred in finding that ss 54 and 55 operated so as to preclude the 8 July 2015 letter being required to be considered. 304 The appellant's initial written submissions (at [21]-[22]), and the second part of his reply submissions on this ground (at [11]) assert that the primary judge had found that ss 54 and 55 did not permit consideration of the 8 July 2015 letter. As is apparent from the last sentence of [147] reproduced at [300] above, his Honour's finding above was that the 8 July 2015 letter was not required to be considered, not that it was forbidden to be considered. On this conclusion by the primary judge, it was a matter for the Minister as to whether or not to consider the letter. 305 The appellant also submits that because the 8 July 2015 letter went to the issue of the risk to the Australian community, and that such risk was a mandatory relevant consideration because of the express terms of s 501(6)(d)(v), the peaceful existence submission within the letter was a mandatory relevant consideration. That cannot be accepted. The relevance of individual items of information is not elevated to being a mandatory relevant consideration merely because it may have some possible bearing on the application of a statutory test: see generally Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [41]-[49]. 306 The balance of the appellant's reply submissions on this topic assert that, when the Minister invites an applicant to comment or provide information, the documents contained within the request itself must be given the status of a mandatory relevant consideration. In this case, the appellant submits, although the 8 July 2015 letter did not form part of the appellant's protection visa application or response to the Notice, the fact that it was one of the attachments to the Notice means that it must be considered by the Minister as the decision-maker. 307 At the hearing of the appeal, the appellant's argument was developed as follows. He relies upon the following invitation to comment in the Notice. Although the appellant relies mainly on the first sentence, this section of the Notice has been reproduced in full in order to provide context: Invitation to comment Before the decision-maker considers whether to refuse to grant you a visa, you have an opportunity to comment or provide information on any factors you believe to be relevant to whether you pass the character test and, if the decision-maker considers that you do not, as to why your visa application should nevertheless not be refused. While you are under no obligation to do so, you may wish to comment or provide information, including, in particular, information regarding the following: • Your alleged statement to NSW Police on 12 January 2014 that you wished to return to Syria and blow yourself up and your subsequent statement on 20 April 2015 • Any links you have or have had with Al Qaeda or persons associated with Al Qaeda • Any links you have or have had with ISIL or persons associated with ISIL • The nature of any physical or weapons training you have received • The nature of your association with the Australian Caucasian man you met at the Chester Hill mosque referenced in Attachment 4 • Threats you have made whilst in immigration detention against other detainees and service provider staff • Any other information you wish to provide regarding your character, including information that may have already been provided to the Department. 308 The appellant submits that the first sentence of the invitation to comment reproduced above, by referring both to commenting upon and providing information in response to the Notice, is both an invitation to comment on the material provided pursuant to s 57(2)(c) and an invitation to "give" additional information under s 56(2). That submission should be accepted. 309 The appellant then submits that it is nonsensical that the Minister could give an invitation to comment on specified relevant information (s 57(2)(c)) and an invitation to give additional information (s 56(2)) without considering the information that he has sought a comment about or has invited further information to be given about. The request by the decision maker is said to "merge" with the reply by the appellant, such that the obligation in s 56(1) to have regard to any information provided in response to a request equally applies to information contained within that request. In support of his argument, the appellant notes that a visa applicant would otherwise have to again provide information that they are already aware is in the possession of the Minister and which the Minister has noted he is considering (necessarily going beyond the visa application itself which is required to be considered by s 54(1) and (2)(a)). Secondly, the appellant submits, the invitation to comment on specified material under s 57(2)(c) involves an implicit acceptance by the Minister that the material is "relevant information" (s 57(2)(a)) that the Minister considers would be the reason or part of the reason for refusing to grant a visa (s 57(1)(a)(i)). 310 The appellant's submissions cannot be accepted. Section 56 specifies that a Minister must have regard to information provided (relevantly here, in response to the invitation to comment in the Notice). The 8 July 2015 letter was neither provided in this manner nor referred to or otherwise relied upon in the appellant's response to the Notice. Further, a central problem with the appellant's argument in relation to both s 56 and s 57 is that the invitation to comment and provide information was not specifically in relation to the 8 July 2015 letter. Under the heading "Enclosures", the Notice had earlier noted only that the Minister may rely on the enclosures (reproduced above at [276]), thus including the 8 July 2015 letter, not that he would necessarily do so. The earlier section entitled "Invitation to comment" made no specific mention of the 8 July 2015 letter, but instead raised particular incidents that the appellant may have wished to comment upon (see [307] above). 311 The only indication that the Notice gave that the 8 July 2015 letter would be considered was in relation to the specific incidents summarised at [274] above that were of concern, some of which cited the attachment containing that letter as a source, but no more. There is no basis for the suggestion that the Notice specifically invited comment or further information upon the peaceful existence submission contained within the letter, or implicitly accepted that it was "relevant information" that would be central to the Minister's determination within the meaning of s 57. 312 The appellant's alternative argument in reliance on s 56, advanced following a question from the bench during the hearing of the appeal, depends upon characterising the 8 July 2015 letter as falling within the description of something that the appellant had given, in the sense of information that the Minister wanted to "get" (s 56(1)), or additional information that the Minister invited the appellant to "give" (s 56(2)) as part of the process after a visa application has been made. That argument relied upon two stages of argument in relation to the last sentence in the first paragraph of the response to the Notice, which is asserted to contain an implied reference to the 8 July 2015 letter. That paragraph is as follows: Our client, [the appellant], applied for a protection visa on 27 June 2016 and attended a protection visa interview on 8 July 2016. On 7 August 2017 [the appellant] received a 'Notice of intention to consider refusal of his TPV application' ('Notice of intention to refuse'). We now provide the following submission and accompanying documents in support of [the appellant's] visa application. We continue to rely on all evidence and submissions previously provided by or on behalf of our client. 313 Both stages of this argument had to succeed for this to prevail. The first stage of the appellant's argument is that the last sentence "We continue to rely on all evidence and submissions previously provided by or on behalf of our client" is not to be read as being confined to evidence and submissions previously provided by or on behalf of the appellant in support of his protection visa application, but rather should be taken to be referring to any evidence and submissions provided to the Minister's Department at any earlier time on any other topic. The former more confined interpretation would not include a reference to the 8 July 2015 letter, and thus the peaceful existence submission, as it preceded the protection visa application by almost a year. The latter broader interpretation would include a reference to the 8 July 2015 letter. Although nothing ultimately turns on the difference due to the conclusion reached about the second stage of this argument, the former understanding of the last sentence (that is, excluding a reference to the 8 July 2015 letter) is to be preferred for the following reasons: (1) the evident purpose for the presence of the last sentence is to make sure that the new statement from the appellant dated 30 August 2017 was not to be taken to be implicitly abandoning any prior protection visa claim by reason of failing to repeat it, including in particular his 27 June 2016 statement containing a non-exhaustive summary of his protection claims in support of his protection visa application and the other supporting material that he had provided or caused to be provided - no other purpose for the sentence is readily apparent; (2) the reference to "continue to rely" speaks of a continuation of the visa application process, to which the Notice related, not to any unrelated process, even if there might have been scope for some commonality of information; (3) it is to be expected that the migration agents were aware of what had already taken place in that visa application process, even if not all documents previously provided were in their possession; (4) it is to be expected that the migration agents would only be referring to material directly relevant to the protection visa application to which the Notice was directed and to which that response was directed; (5) the response itself makes no reference to the 8 July 2015 letter, which had already been attached to the Notice; (6) the migration agents are inherently unlikely to be referring to an open-ended prior body of pre-visa application material which may include information not known to those agents, and which might conceivably be harmful to the appellant's case for the grant of a protection visa; and (7) had the contrary broader understanding of what was referred to been at all apparent, it seems likely that this would have been seized upon in the proceeding before the primary judge or in this appeal proceeding, prior to it being raised by this Court at the appeal hearing. 314 The second stage of the appellant's alternative argument is that the sentence "We continue to rely on all evidence and submissions previously provided by or on behalf of our client" falls within the s 56(2) concept of to "give". This argument must fail because the requirement to have regard to information that a visa applicant gives cannot properly be understood to extend to information that a visa applicant does not give, but only refers to. The whole point of the regime for information reflected in ss 54, 55 and 56 is to limit it to information that has actually been given, and then to require the Minister to have regard to it. 315 This ground of appeal must fail because the primary judge was plainly correct. The statutory language and context leave no room for finding that pre-visa application information provided by a visa applicant of the kind contained in the 8 July 2015 letter is a mandatory relevant consideration in considering such an application.

Ground 2 316 Strictly speaking it would not matter if this ground succeeded, because even if it was shown that the peaceful existence submission in the 8 July 2015 letter relied upon was not considered, that could not vitiate the Minister's decision given the absence of any obligation to consider it. However the ground has been raised and should be dealt with. 317 The primary judge concluded, in the alternative (at [148]), that in any event: (1) the appellant had not established that the 8 July 2015 letter was not taken into account; (2) the peaceful existence submission in the 8 July 2015 letter was not materially different from submissions that were taken into account; and (3) the substance of the matters said not to have been taken into account (of which the peaceful existence submission in the 8 July 2015 was only a part) was reflected in the material otherwise overtly before the Minister and it had not been demonstrated that material was not considered. Each of those points were expanded upon by his Honour in some detail (at [149]-[163]). 318 The appellant does not engage with the first point made by the primary judge above, namely that it was not demonstrated that the peaceful existence submission in the 8 July 2015 letter relied upon was not taken into account. It is worth noting that letter itself and other aspects of its contents were expressly referred to in the Minister's reasons at [9] and [13]. This poses a formidable hurdle to any successful argument that not specifically referring to the peaceful existence submission means that it was not considered, as opposed to being insufficiently material or different from other information to warrant any separate mention. This is a sufficient basis on its own for ground 2 to fail. 319 The balance of the appellant's submissions rely upon the asserted importance of the peaceful existence submission in the 8 July 2015 letter to submit that this was sufficient to demand not just that the reference be considered, but that it be given such weight and importance as to demand an active intellectual process be applied to it, and presumably some analysis of it in the Minister's reasons. This overstates the significance of the peaceful existence submission and encroaches upon the obligation not to engage in merits review. It does not address the primary judge's second conclusion (at [148], summarised at [317(2)] above) that the peaceful existence submission in the 8 July 2015 letter was not materially different from submissions that were taken into account going to the question of risk, which was accepted to be low, let alone establish any error in that conclusion. Even assuming that the Minister was obliged to have regard to the peaceful existence submission in the 8 July 2015 letter, that does not mean it was required to be expressly manifested in the reasons for refusing to grant the visa. This is especially so when the appellant did not see fit to mention it in his response to the Notice, and the substance of the submission going to his low risk to the Australian community was able to gleaned from other material that was referred to. 320 This ground must fail because the appellant has not established any error on the part of the primary judge.

Ground 4 321 This ground of appeal takes issue with the primary judge's conclusion, at [100], that there was a rational basis for the Minister to find that the appellant did not pass the character test. The appellant also asserts that his Honour erred in finding there was no legal unreasonableness in the Minister exercising his discretion to refuse the grant of the visa, and concluding that the factors in the appellant's favour and the detriments he faced were outweighed by the serious consequences if the identified risk to the Australian community materialised. 322 While the appellant focuses on the primary judge's reasons at [100], that paragraph needs to be considered in the context of the preceding paragraphs, including in particular [97]-[99], which followed a detailed consideration of the Minister's reasons by his Honour. Those four paragraphs are as follows: [97] As is evident from its terms, a main purpose of s 501 is protection of the Australian community - see also: Stretton at [15] (Allsop CJ). The breadth of the discretionary power to cancel a visa under s 501(2) on character grounds was examined by Griffiths J in Stretton at [65] to [71]. The power to refuse to grant a visa under s 501(1) is similarly broad. Sections 501(1) and 501(6)(d)(v) are to be read in the context of the purposes of the Act as a whole. One such purpose is expressed in s 4 as: "to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens". The concept of the "national interest" is necessarily broad. [98] The applicant accepted in oral argument that it was open to the Minister to conclude that the applicant posed a low threat in the sense that there was a low chance of the relevant conduct occurring. The nature of the consequences to the Australian community if the relevant conduct occurred were not suggested to be other than potentially serious. [99] The Minister was faced with a difficult decision, balancing the low threat of serious harm to the Australian community with potentially life-threatening consequences to the applicant. Not everyone would agree with the result as a matter of merit. This Court's role is limited to ensuring that the Minister acted within the bounds of legality: Stretton [12] to [13] (Allsop CJ). There must be a point at which a perceived risk is so unlikely, or the nature of the risk is so trivial, that a decision to refuse a visa under s 501(1), on the basis that the Minister was not satisfied that a visa applicant passed the character test by reason of s 501(6)(d)(v), would be legally unreasonable in circumstances where the consequences of the decision are of the kind they are here. It has been accepted that "proportionality" has a role to play in the sense that an obviously disproportionate response might be a pathway to a conclusion that the decision was unreasonable: Stretton at [57] (Griffiths J), citing Li at [74]; see also Stretton at [15] and [21] (Allsop CJ). That concept obviously cannot become a back door way of introducing merits review, as was made clear in Li and Stretton. [100] Here, there was a rational basis for the Minister to conclude that there was a low risk of relevant conduct occurring and that, if the applicant were to carry out in Australia a threat of the kind he had made in the past, the consequences would or could be extremely serious. The Minister's decision that, in those circumstances, a protection visa should not be granted, notwithstanding the heavy considerations which weighed against such a conclusion, was one a decision-maker could reach without committing jurisdictional error on the basis of legal unreasonableness. 323 The explanation of the statutory framework identified by the primary judge at [97] was not questioned on appeal. Moreover, the concessions made by the appellant in oral argument before his Honour, and the way in which the case was conducted by the appellant, noted by his Honour at [98], were not sought to be withdrawn, or challenged as being inaccurately recorded, respectively. This appeal therefore had to be decided upon the basis that it was open to the Minister to conclude that there was a chance, albeit low, of the threatened conduct occurring in Australia, and that if that was to occur it would be potentially serious. 324 Sections 501(1) and (6)(d)(v), have been cast by the legislature in wide terms, with low thresholds, referable to the broad concept of "national interest". A visa applicant does not pass the character test if found to meet a threshold as low as "a risk" of representing a "danger to the Australian community". Representing a danger of this nature expressly includes merely "being liable to become involved in activities that are disruptive to, or in violence threatening harm to", the Australian community, but can also occur "in any other way". With a minimum threshold for "danger" being as low as being liable to be disruptive to the Australian community, and potentially even lower in some other way, the Minister has a very wide area within which to exercise a genuinely free discretion: Li at [66]. 325 Because s 501(6)(d)(v) does not refer to any particular level of risk, be it high, low, remote or negligible, it is an evaluative exercise for the Minister to conduct as to whether any such risk exists, and if so, what the consequences might be. A conclusion of legal unreasonableness in the assessment of whether the degree of risk posed is above zero is inherently going to be very difficult to find, even in quite a factually extreme case. Correspondingly, when it comes to the exercise of the discretion to grant the visa sought, despite not being satisfied that the visa applicant has passed the character test, it is for the Minister to determine whether that degree of risk is acceptable or not, including whether it is outweighed by countervailing considerations. 326 In the exercise of a statutory power which requires reaching a state of satisfaction, in this case refusal to grant a visa under s 501(1) if the Minister was not satisfied that the appellant passed the character test, an implied condition is that this state of mind be arrived at rationally, including that findings of fact be based on evidence that is rationally probative of the fact in issue: BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [40]. While this challenge was brought upon the basis of asserted legal unreasonableness, not irrationality per se, the assessment of whether the material before the Minister was capable of supporting the impugned conclusions reached is much the same. Legal capacity of such material, rather than its weight, goes to the lawfulness of the exercise of power, not the merits of that exercise of power. It is akin to the difference between the role of a tribunal of law in deciding whether evidence has the legal capacity to prove a fact, such that there is a case to answer, and a tribunal of fact in assessing evidence to determine whether a fact in issue has been proven. Thus, in a criminal jury trial, "if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision" and may only be taken away from the jury by a directed verdict "if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty": Doney v The Queen (1990) 171 CLR 207 at 214-15. It hardly seems likely that an administrative decision-maker has less latitude to evaluate material that lacks quality than a jury deciding the question of whether guilt of a serious criminal offence has been established. 327 The legal capacity of the material before the Minister to support the conclusions reached will not necessarily be lacking if it is weak, or capable of a benign explanation, or might support a different conclusion, because that is merely something about which reasonable minds may differ, perhaps even vociferously: see BFH16 at [29], citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [96] and [130], and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47]. 328 The appellant's submissions attack both: (1) the reasoning process by the Minister, especially at [46] and [61], reproduced above; and (2) the outcome, especially at [79], reproduced above and again below. 329 Before considering the specifics of those submissions, it is helpful to recall the observations by Allsop CJ on this topic in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1: [8] The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court's function is a supervisory one as to legality: see Li at [30], [66] and [105]. … [11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power. [12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised. [13] The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power. 330 As the Chief Justice observed in Stretton in [8], the role of this Court in conducting judicial review of the Minister's decision is supervisory and cannot involve substituting the Court's view as to how a discretion should be exercised for that of an administrative decision-maker, including in particular substituting its view of what is reasonable for that of the Minister: see also Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [66]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [59]. The issue therefore is whether the arguments advanced in support of this ground of appeal go beyond a challenge to the merits of the evaluative exercise carried out by the Minister, so as to substantiate a finding of legal unreasonableness. 331 While the relationship between the reasoning process as to the character test, and the conclusion reached as to the ultimate refusal to grant the visa, should not be rigidly set (Stretton, above, at [13]), the two were addressed separately by the appellant, the second effectively as an alternative in the event that the challenge to the first did not succeed. It is therefore convenient to address them separately, while acknowledging their interplay and overlap.

(1) The reasoning process on the character test 332 As to the challenge to the Minister's reasoning process on the character test, the appellant submits that there was no logical basis for the Minister to infer, based on the threats made by him while delusional due to his bipolar disorder, that he posed "more than a remote chance" of carrying out those threats. This was in the context where there were no charges against him in relation to the conduct and it was not apparently doubted that he was not considered a security threat by ASIO or police. The only evident risk, according to the appellant, was that his mental condition would again deteriorate and he would make further threats, not that he would carry them out. It is that additional step of the Minister finding that there was a risk that the threats made might be carried out in Australia that is characterised by the appellant as being legally unreasonable. 333 An important aspect of the argument advanced both before the primary judge and on appeal concerned the finding by the Minister that the appellant had made two separate threats to blow himself up. The first threat was made at the time of the altercation on 12 January 2014, which the appellant said he would carry out in Syria, being a reaction to being told that his mother had been killed. The second threat was recorded as having been made on 20 April 2015 during a telephone call by the appellant to the Department's Global Feedback Unit (known as the GFU). 334 As to the first threat, the primary judge reasoned at [47], correctly in my view, that it is "perfectly logical to reason that there is a risk that a person who is willing to blow themselves up might carry out such an act in a place different from that which they had specifically identified in the threat". 335 As to the second threat, the appellant unsuccessfully sought to persuade the Minister that he was only referring to the prior threat made on 12 January 2014, not making a fresh threat to blow himself up. The Minister's finding that this was a new threat was not required to be established to any curial standard. It could be established even by interpreting the arguably unclear or imprecise record of the Department in an unlikely way, provided that interpretation was available. The primary judge reasoned at [48], again correctly in my view, that this could reasonably be understood as a new threat by the appellant to blow himself up in Australia. 336 Those findings about the threats made by the appellant to blow himself up were important to the Minister's risk assessment, including as to seriousness. Reasonable minds can differ as to how that risk should have been assessed, both in terms of the likelihood of the threat being carried out, and the seriousness of the consequences for the Australian community if it were to be carried out. Even the most emphatic disagreement with the reasoning in relation to that conclusion, identifying holes in the reasoning and shortcomings in the evidence or other material upon which the reasoning is based, does not necessarily or even readily render it legally unreasonable. 337 The Minister's reasoning and conclusion in relation to the appellant not satisfying him that he passed the character test may be seen to squarely meet the requirement in s 501(6)(d)(v) of a finding of a certain kind of risk. The Minister's evaluative finding was that there was a low likelihood, found to be more than minimal or remote, of the threatened activity in fact taking place in Australia. The Minister found that the possibility and thus risk of this taking place could not be excluded, and if it did occur could result in significant harm to the Australian community. 338 That was a very pessimistic approach to take, and could be seen as overly cautious, but the language of s 501(6)(d)(v) is cast in terms that authorised the Minister to be highly protective of the Australian community when it came to granting or refusing a visa when character is in issue. The problem with the appellant's argument as to the reasoning process, apart from apparently departing from the concession recorded in the primary judge's reasons at [98] without first obtaining leave to do so, is that it does not engage with the substance of the Minister's reasons, as analysed by his Honour. 339 Taking the appellant's threats to blow himself up seriously, the Minister was entitled to reason that once made, such a threat could possibly be carried out in Australia, even if that was not very likely. Some degree of risk that the appellant would carry out his threats, however low, was still rationally able to be found by the Minister, as the primary judge effectively concluded. I therefore consider that it was a conclusion that was open to the Minister as a matter of subjective assessment, even if the available information about the appellant's prior conduct did not have to be read and understood in that way. That a different conclusion could have been reached by assessing the material in the way that the appellant contends should have been done amounts to no more than inviting impermissible merits view. That is because it focuses on the weight to be given to the evidence, not its legal capacity to support the conclusion reached. It was not legally unreasonable for the Minister to find a low possibility and thus risk that threats of this kind might be carried out. In substance, this argument, if accepted, would have the effect creating a threshold higher than provided for by the legislature of "a risk". 340 I am therefore not satisfied that the necessary threshold of legal unreasonableness has been surmounted in relation to the reasoning of the Minister in finding that the low risk existed, nor in the assessment of the material relied upon to reach that conclusion, any more than it ultimately was at the appeal stage in Stretton.

(2) The outcome in refusing the grant of the visa 341 As to outcome, being the ultimate exercise of the discretion to refuse the grant of the visa sought, the substance of the appellant's argument is one of asserted disproportionality between the finding of a low level of risk to the Australian community on all the evidence, and the ultimate conclusion reached at [79] of the Minister's reasons, reproduced again for convenience: I found the above considerations in favour of refusal outweighed the countervailing considerations in [the appellant's] case, including the potential harm for [the appellant] if he is returned to Syria, Australia's international non-refoulement obligations, and his mental health concerns. 342 Establishing legal unreasonableness in relation to an outcome may be more difficult than for a process of reasoning. The appellant was required to demonstrate that the Minister's ultimate decision to refuse to grant him a visa was not within the range of possible lawful outcomes: Stretton at [11], reproduced at [329] above. That is, the outcome itself had to be an unlawful exercise of the power. 343 The appellant submits that the Minister's finding of, at most, a low likelihood of the threatened conduct occurring, produced the disproportionate outcome of the protection visa being refused. The outcome is said to be disproportionate due to the necessarily greater weight given to the need to protect the Australian community in light of the "nature and seriousness of the claims and threats" made when due regard is had to the Minister's findings or awareness that: (1) the conduct giving rise to the risk was caused by mental illness and he has no recorded criminal history; (2) he has never perpetrated any harm or violence against any person, apparently accepting submissions that he had never been charged with any offence and was cleared by police and ASIO; (3) he had already spent five years in detention; (4) the Minister's Department had found he had a well-founded fear of persecution if he was returned to Syria including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance; and (5) notwithstanding Australia's non-refoulement obligations he was be liable to deportation on refusal of his protection visa application. 344 This aspect of the challenge is confined to the question of whether it was legally unreasonable for the Minister to balance the identified low risk (and potentially dire consequences if realised) against the other factors, including the identified individual and cumulative detriments, and conclude that the former should dominate, leading to the adverse exercise of the discretion. 345 The appellant submits that, in the circumstances listed above, the exercise of the discretion to refuse the visa for the reasons given was so unjust, arbitrary or disproportionate as to be beyond power, relying on Stretton. As the primary judge noted, Stretton makes it clear that although "disproportionality" may be a pathway for finding legal unreasonableness, it cannot be used to conduct impermissible merits review: see in particular Allsop CJ at [21] and Griffiths J at [57]-[58]. 346 Once the Minister had made the risk assessment leading to the conclusion that the appellant failed the character test, it was for the Minister to assess and weigh the competing considerations as to the exercise of the discretion to nonetheless grant the visa sought. It was for the Minister to decide whether or not the risk and its potential consequences, if realised, did or did not outweigh the appellant's compelling circumstances and the detriments he may face, including in particular those identified by the appellant on judicial review and in this appeal. 347 Each of the factors relied upon by the appellant before the primary judge, and on appeal, summarised above, are doubtless matters that could have resulted in a different conclusion being reached in the exercise of the discretion. The competing considerations could, on the merits, have been weighed and assessed differently, giving dominant weight to the factors favouring the grant of the visa, instead of it being refused. However that evaluative exercise was for the Minister, and not for the primary judge, as his Honour acknowledged. Neither individually, nor cumulatively, did the features the appellant relied upon compel a finding that the result arrived at was legally unreasonable. However harsh the conclusion reached by the Minister, it was, in these circumstances, within his lawful authority. 348 If an appeal on the merits had been permitted, that might well have produced a different outcome. To find, as the appellant asserts, and in the way this has been argued, that this conclusion was so unjust, arbitrary or disproportionate as to be beyond power by reason of legal unreasonableness, called for the primary judge, and for this Court in conducting an appeal by way of rehearing, to evaluate the competing considerations and decide which should prevail. For the primary judge, and for this Court, to focus on the weight that should have been given to the different features was nothing more than impermissible merits review. 349 It follows that the appellant's assertion that the conclusion reached was so unjust, arbitrary or disproportionate as to be legally unreasonable does not rise higher than emphatic (and understandable) disagreement, emphasising the significance of his circumstances, past, present and future. The appellant has not been able to rise above merits review to successfully argue not just that a different conclusion could have been reached on all the material, but that in the lawful exercise of power, the conclusion reached was not available. It does not establish any error in the primary judge's ultimate conclusion at [100], reproduced at [322] above, that the high threshold of legal unreasonableness had not been demonstrated. 350 I am therefore unable to accept that, in effect, the Minister's decision could only lawfully be made in favour of the grant of the visa to the appellant. I am therefore unable to agree that any of these three conceptually similar pathways relied upon - unjust, arbitrary or disproportionate - have been shown to infect the Minister's decision to refuse to grant the visa. I do not accept that legal unreasonableness in the conclusion reached as to the exercise of the discretion - that is to say, as to the outcome reached - has been established, such that the primary judge erred.

(3) Conclusion on ground 4 351 No error on the part of the primary judge has been established, such that this ground of appeal must also fail.

Conclusion 352 As each ground of appeal must fail, the Minister's notice of contention concerning the non-disclosable information does not arise for consideration. 353 The appeal should be dismissed with costs. 354 I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.