CEU22 v Minister for Home Affairs

order made by: WIGNEY, THAWLEY AND WHEELAHAN JJ DATE OF ORDER: 16 FEBRUARY 2024

1. The time for compliance by the respondent with r 36.24 of the Federal Court Rules 2011 (Cth) is extended to 20 October 2023.
2. The appeal be dismissed.
3. The appellant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 On 9 December 2021, the then Minister for Home Affairs (the Hon Ms Karen Andrews) decided to cancel the appellant's Class BS Subclass 801 Partner (Residence) visa under s 501(3)(b) of the Migration Act 1958 (Cth) on the basis that she suspected that the appellant failed the character test under s 501(6)(g) and the cancellation was in the national interest. She provided reasons for that decision (hereafter "R"). By virtue of s 501(5), the rules of natural justice do not apply to a decision under s 501(3) and, although not prohibited from affording natural justice, the Minister chose not to because she considered that the appellant posed a risk to the Australian community and that a "swift decision" should be made: R[6] to [8]. Nevertheless, the Minister did take into account information which the appellant had submitted to the relevant Department as part of his application for a Partner visa on 16 March 2014 as well as in response to a Notice of Intention to Consider Refusal dated 2 August 2017: R[9]. 2 The appellant unsuccessfully sought judicial review of the Minister's decision in this Court and appeals from the orders of the primary judge dismissing that application: CEU22 v Minister for Home Affairs (No 2) [2023] FCA 867 (hereafter "J"). 3 In breach of the Court's orders, the appellant filed 24 pages of written submissions, said to be necessary because of the "gravity" of the Minister's conduct, the "voluminous evidence" and the "complexity of [the] issues". The length of the appellant's submissions was not justified on any basis. It was inappropriate to have filed those submissions without having first sought leave. 4 The appellant argued the appeal by reference to three grounds: Grounds 1, 3 and 4. Grounds 2 and 5 of the notice of appeal were not pressed. The Minister submitted that none of the grounds pressed were good and also relied on a notice of contention, filed 24 days out of time. The appellant opposed leave being granted to rely on the notice of contention, noting that: under r 36.24 of the Federal Court Rules 2011 (Cth), a notice of contention must be filed within 21 days after service of the notice of appeal; and the Rules provided no express mechanism for an extension of time for the filing of a notice of contention, a fact which can be contrasted with many other rules where extension is expressly contemplated, for example, rr 36.05 and 36.23 which respectively contemplate an extension of time for filing a notice of appeal and a notice of cross-appeal. 5 A notice of contention differs from a notice of appeal and a notice of cross-appeal in that it does not seek to challenge any order of the court below. Rather, a notice of contention furnishes a mechanism for providing notice to an appellant of the respondent's contention that the orders from which the appellant appeals can and should, on the respondent's argument, be supported on grounds other than those upon which the primary judge relied. 6 The Court has power to dispense with compliance with the Rules and may extend a time fixed by the Rules: rr 1.34 and 1.39. Both of those rules can be applied in connection with the time limit of 21 days provided in r 36.24. An important consideration which arises in determining whether to extend time for the purposes of r 36.24 (or dispense with the time requirement in r 36.24) is the interest of the proper administration of justice in ensuring that the decision the subject of appeal has been made in accordance with law. Another consideration is whether sufficient time has been provided for the arguments on the notice of contention to be fairly addressed. This is not intended to be an exhaustive identification of potentially relevant considerations. 7 In the present case, there is no prejudice to the appellant of any relevant kind. The appellant was provided with the notice of contention many months before the hearing of the appeal and both parties have fully addressed the issues raised by it. Those parts of the notice of contention which are pressed do not lack merit. Accordingly, the Court extends the time for the respondent's compliance with r 36.24 until 20 October 2023, being the date the notice of contention was lodged for filing and deemed to be filed in accordance with r 2.25. 8 It is convenient to address the various issues by reference to the three grounds of appeal. It is not necessary to repeat the underlying facts in any detail. They are set out in the primary judge's reasons for judgment and are referred to below where relevant to the disposition of the appeal.

Relevant Background 9 In making her decision to cancel the appellant's visa, the Minister stated that she had decided to consider "non-refoulement issues in assessing whether cancellation is in the national interest", noting that the question of whether she was obliged to consider those issues as a mandatory consideration was the subject of (other) contested litigation: R[77]. 10 As noted at [1] above, the Minister took into account information which the appellant had earlier provided (in a different statutory context) and recorded that the appellant had stated that he feared harm because: (a) of the general security situation in Afghanistan; and (b) he was a former employee of the American Embassy in Afghanistan and feared repercussions from the Taliban if he returned to Afghanistan: R[78]. 11 The Minister concluded at R[79]: I accept that there is a risk of harm to persons living in Afghanistan from organisations such as the Taliban. However, there is not enough information for me to make a finding as to whether [the appellant] faces the same risk as do other people in Afghanistan, or whether he would be specifically targeted, such that non-refoulement obligations are owed. I therefore find that non-refoulement obligations are not engaged by this claim. 12 The primary judge stated at J[59]: … Reading that passage fairly, it is apparent that [the Minister] took the view that Australia's international non-refoulement obligations would not be engaged in respect of the applicant if the risks that he faced upon return to Afghanistan were not risks that he would face because he was "specifically targeted". 13 Neither party took issue with the primary judge's conclusion as to the meaning of the Minister's reasons on this topic at R[79]. Both parties agreed that what the Minister stated at R[79] was a statement about Australia's unenacted international non-refoulement obligations and not a statement about Australia's international non-refoulement obligations as enacted in Australian domestic law. 14 By Ground 1 of the appeal, the appellant contends that the primary judge erred in failing to find that the Minister misunderstood the nature of international non-refoulement obligations owed by Australia in relation to the appellant, resulting in jurisdictional error. Before turning to the appellant's submissions, something should be said about the primary judge's approach so far as it concerns this ground.

The primary judge's approach 15 The primary judge may have understood the appellant's argument at trial as starting from the premise that the Minister was obliged to consider Australia's international non-refoulement obligations, with the consequence that - if there was no such obligation - the appellant's case must necessarily fail. That interpretation of the primary judge's reasons flows in particular from J[35], [37], [38], [42] and [57]. 16 The primary judge summarised the issues raised by the appellant's case at J[35] in the following way: The following questions arise, then, for the court's consideration, namely: (1) when assessing whether it was in the national interest to cancel the applicant's Visa, was Ms Andrews obliged properly to consider the prospect that he might be returned to Afghanistan in breach of Australia's international non-refoulement obligations; (2) if she was so obliged, did Ms Andrews consider that question or did she, instead and by reason of having misunderstood the nature of Australia's non-refoulement obligations, consider something else; (3) if she did not consider what she was obliged to consider, was that failure material to a point that bespeaks jurisdictional error; and (4) what, if anything, can be made of Ms Andrews' failure specifically to address, in her reasons for favouring cancellation of the applicant's Visa, the prospect that he might be subjected to prolonged or indefinite detention? 17 At J[37], the primary judge stated: As has been rehearsed, the applicant identifies two sources of what he says was Ms Andrews' obligation to consider the prospect that he might be returned to Afghanistan in breach of Australia's international non-refoulement obligations. The first is that she chose to consider that question; the second is that the subject matter, scope or purpose of s 501(3) of the Act implicitly required it. 18 The primary judge addressed the first contended source of the "obligation" to consider Australia's international non-refoulement obligation from J[38] to [42], stating at J[38] and [42]: I do not accept that Ms Andrews was obliged correctly to consider Australia's international non-refoulement obligations merely because that was an issue that she opted to consider. A question or issue upon the consideration of which the proper exercise of a statutory power is not conditioned doesn't become a mandatory relevant consideration merely because a decision maker chooses to consider it. An error that leads a decision maker to misunderstand the significance of something that he or she was not, in any event, obliged to consider is not an error of jurisdiction. … Ms Andrews' decision to consider the significance of Australia's international non-refoulement obligations did not suffice to make them a mandatory relevant consideration. Any misunderstanding that attended that consideration is insufficient to taint the decision as the product of jurisdictional error. 19 In relation to the second contended source of the obligation to consider Australia's international non-refoulement obligation, the primary judge concluded that it was not a consideration rendered mandatory by the terms of the statute: J[43] to [56]. This is no longer controversial. 20 As to the first issue identified at J[35(1)] - namely whether there was an obligation to consider Australia's international non-refoulement obligations - the primary judge rejected the proposition that the Minister "laboured under-or failed to discharge-any obligation to consider Australia's international non-refoulement obligations": J[57]. 21 The primary judge then turned to the second issue identified at J[35(2)], namely: whether, if there was an obligation to consider Australia's international non-refoulement obligations, the Minister misunderstood the nature of those obligations, recording at J[58] that it was not strictly necessary to consider this issue because of his conclusions on the first issue. The primary judge concluded at J[60] to [62] that, had it been necessary, he would have accepted that the Minister erred because a "generalised risk of harm - that is to say, for example, a risk that applies generally to those within the territory of a country to which a person might be removed following the cancellation of his or her visa - is … capable of engaging Australia's international non-refoulement obligations".

Summary of appellant's arguments on appeal 22 The appellant submitted that the Minister's choice to take into account Australia's international non-refoulement obligations, required her to correctly interpret those obligations: AS[15]. The appellant abandoned the argument that Australia's international non-refoulement obligations were a mandatory consideration by implication from the text of the statute: AS[15]. 23 The appellant submitted that, although Australia's international non-refoulement obligations were not a mandatory relevant consideration, the Minister was required to proceed upon a correct understanding of the law and did not, referring to Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57]. 24 The appellant then submitted that, because Australia's international non-refoulement obligations informed: (a) the national interest, if the Minister misunderstood those obligations (which she did), then what she considered was not the national interest but something else; (b) the discretion under s 501(3), if the Minister misunderstood those obligations (which she did), then what she considered was not the discretion but something else: AS[17]. 25 During oral submissions, the appellant submitted that any factual or legal error made by a decision-maker was a jurisdictional error if it was material to the decision in the sense materiality was described in Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737. According to the appellant, it is the materiality of an error (rather than the nature of the error) which makes it jurisdictional.

Consideration 26 Although it could have been more clearly expressed, the appellant's case at trial included the contention that the Minister's decision involved jurisdictional error because, having chosen to take into account Australia's international non-refoulement obligations in deciding what was in Australia's national interest, she misunderstood those obligations thereby erring in a way going to jurisdiction. The appellant pleaded (and argued) that the Minister's "choice [to consider non-refoulement obligations] required the Minister to correctly understand the content of Australia's international non-refoulement obligations": particular 1(b) of Ground 1 in the amended originating application. This case did not depend on the Minister being obliged to consider Australia's international non-refoulement obligations. The case was not squarely addressed, presumably because the primary judge understood the appellant to accept that Australia's international non-refoulement obligations had to be a mandatory consideration either because of the Minister's "choice" or because it was a mandatory consideration properly implied from the subject matter, scope or purpose of s 501(3) of the Act: J[37]. 27 To say that a decision is affected by jurisdictional error is to say that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [29]. 28 The statutory limits of decision-making authority conferred by statute are determined as an exercise in statutory interpretation; non-compliance with express or implied statutory conditions of a conferral of decision-making authority can (but need not) result in a decision that exceeds the limits of the decision-making authority conferred: MZAPC at [30]. 29 Ordinarily, it is an implied condition of a statutory conferral of decision-making authority that a decision-maker must proceed by reference to correct legal principles, correctly applied: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]. The High Court has stated that this implication arises under s 501(3). In Graham at [57], the High Court observed that the satisfaction of the Minister necessary to fulfil the conditions in s 501(3) must be formed on a "correct understanding of the law": The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister's satisfaction as to which is the subject of the second condition of s 501(3) [the national interest test], although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself". 30 Two matters should be noted about the Minister's reasons in the present case. First, the Minister did not misunderstand Australia's international non-refoulement obligations as enacted. Parliament has determined how Australia's treaty obligations with respect to non-refoulement are to be enacted in domestic law. The domestic law contains Parliament's interpretation of how Australia's international non-refoulement obligations are to operate: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [9(3)], [16], [32] per Kiefel CJ, Keane, Gordon and Steward JJ. 31 Parliament's interpretation of how Australia's international non-refoulement obligations are to operate is found in s 36(2)(aa) of the Act and associated provisions. If the appellant were to apply for a protection visa, that application would be determined in accordance with that law. As a matter of domestic law, a non-refoulement obligation is not owed under s 36(2)(aa) - the 'complementary protection criterion' - where the risk of harm in question "is one faced by the population of the country generally and is not faced by the non-citizen personally": s 36(2B)(c). 32 The appellant submitted that, as a matter of domestic law, a non-refoulement obligation was owed where the risk of harm falls within the general risk identified in s 36(2B)(c) because that provision only applied to exclude a general risk of harm from s 36(2)(aa) and not from s 36(2)(a). 33 It may be accepted that s 36(2)(aa) supplies the definition of "significant harm" which is a term used in s 36(2)(aa) and not a term used in s 36(2)(a). However, s 36(2)(a) - the 'refugee criterion' - is directed to a "well-founded fear of persecution" of the individual and not to the general security risk faced by the general population, which was the generalised risk upon which the appellant relevantly relied. 34 The second matter to note about the Minister's reasons is that the Minister appreciated that Australia's unenacted non-refoulement obligations might not be fully encompassed by what has been enacted into domestic law. This is what the Minister intended to convey at R[82] by the words: "I am aware that Australia's international non-refoulement obligations may not be fully encompassed by the visa criteria in s 36(2)". 35 On one view, R[79] indicates that the Minister was considering Australia's international non-refoulement obligations as enacted into domestic law. This interpretation is supported by: (a) a comparison of R[79] (which speaks of "non-refoulement obligations") and R[82] (which speaks of "Australia's international non-refoulement obligations"); and (b) the fact that the Minister plainly understood that enacted obligations might not fully cover the unenacted obligations. 36 Uninstructed by the respondent's oral submissions, one might have thought that this was the contention raised by [1] of the notice of contention, which provides: In addition to the reasons given by the primary judge for rejecting Ground 1, the primary judge should also have found, contrary to [60]-[62] of the reasons, that there was no error in the reasoning of the Minister in her assessment of Australia's non-refoulement obligations. 37 This also appears to be the argument put in the respondent's written submissions at RS[7]. However, during oral submissions the Minister: (a) accepted that R[79] was speaking about Australia's unenacted international non-refoulement obligations; and (b) did not contest that the unenacted non-refoulement obligations could apply to a generalised risk of harm. 38 If R[79] was referring to non-refoulement obligations as enacted into domestic law, R[79] does not support the existence of any misunderstanding of legal principle and Ground 1 must fail. 39 If R[79] was referring to unenacted non-refoulement obligations and contains a misunderstanding of the kind identified by the primary judge, and accepted by the Minister in oral submissions, then Ground 1 must also fail, for the following reasons. 40 Whilst it is an implied condition of the conferral of decision-making authority in s 501(3) that the decision-maker must proceed on a "correct understanding of the law" (Graham at [57]), Australia's unenacted international non-refoulement obligations are not domestic laws the subject of that implied condition. That is because an international treaty can only operate as a source of rights and obligations under domestic law if, and to the extent that, the treaty has been enacted by Parliament - see: Plaintiff M1 at [20]. 41 For the reason just mentioned, Australia's unenacted international non-refoulement obligations also cannot be a mandatory relevant consideration under s 501(3), as the appellant conceded - see: Plaintiff M1 at [29] (addressing s 501CA(4), but with reasoning which is necessarily applicable to s 501(3)). 42 As noted at [26] above, the appellant's case was in essence that - because the Minister chose to consider Australia's international non-refoulement obligations - her choice required her to understand those obligations correctly. 43 The Minister's misunderstanding of Australia's unenacted non-refoulement obligations was not of a kind which establishes an excess of jurisdiction on any of the appellant's arguments: In considering what was in the national interest and making her decision, the Minister chose to take into account what she understood to be Australia's unenacted international non-refoulement obligations, albeit considering a full assessment could be made later in the context of a protection visa application. The Minister was mistaken about the content of those unenacted obligations in the way identified by the primary judge. The Minister's error was not about something which was a mandatory consideration and the error does not otherwise reveal a misunderstanding about the statutory task; rather, it was an error about something the Minister took into account in undertaking the statutory task required of her. The Minister's error about the content of Australia's unenacted non-refoulement obligations was not shown to be anything other than an error within jurisdiction. 44 The appellant's submission that the Minister did not consider the national interest and did not consider the discretion in s 501(3) must be rejected. The Minister clearly considered both. In considering both of those matters, the Minister made an error within jurisdiction about the content of Australia's unenacted international non-refoulement obligations. This was not an error of (domestic) law. The appellant's submission that any factual or legal error which is material to the decision is a jurisdictional error because it is material must be rejected. 45 Lengthy submissions were advanced by the parties in relation to a number of cases, including: Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12, particularly at [114]; MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; 282 FCR 285, particularly at [21] to [28]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181, particularly at [83], [86] and [101]-[102]; and Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; 288 FCR 23. It is unnecessary to address each of them. It is sufficient to note that each turns on the particular statutory scheme being considered, the particular arguments being advanced and the particular facts. Each of them predated Plaintiff M1 in which the High Court pointed out that a number of Federal Court cases had proceeded on incorrect reasoning: at [32]. 46 On the other hand, it is desirable to mention the decision of the Full Court in HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133; (2022) 294 FCR 13 which was decided after Plaintiff M1. 47 The Minister contended the decision in HRZN was fatal to the appellant's argument on this appeal and the appellant contended that it was not, and in oral submissions, that - if it theoretically was - this Court should not follow HRZN because it was plainly wrong. 48 In HRZN, the decision-maker (being a tribunal) had considered Australia's unenacted international non-refoulement obligations when it was not obliged to do so and had then misunderstood those obligations: at [17], [20]. The appellant in HRZN submitted that, once the tribunal chose to consider the non-refoulement claims, it could not misunderstand those claims: at [43]. The appellant submitted that Plaintiff M1 was distinguishable because the decision-maker in that case did not consider non-refoulement obligations at all: at [58]. The Court rejected these submissions saying at [67]: … It is clear from the plurality reasons in Plaintiff M1 that the consideration by the Tribunal of the non-refoulement claim, based on unenacted international obligations (which was not a mandatory consideration) cannot give rise to jurisdictional error, even though the Tribunal misunderstood the legal content of those obligations. That conclusion follows from the plurality reasons at [20] and [29]: "such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error" with the necessary consequence that the misunderstanding of the Tribunal in this case, whilst an error of law, was not a jurisdictional error. Rather, it was an error within jurisdiction. 49 The Court stated at [72] that the Tribunal's "misunderstanding of Australia's unenacted international non-refoulement obligations was not a jurisdictional error, but one within jurisdiction". As with all decisions, the reasons in HRZN must be read in context, in particular in light of the case which was advanced. Whilst it might have been expressed in different ways, the import of [67] and [72] is that the Tribunal's error about the content of unenacted non-refoulement obligations, which was not a mandatory relevant consideration, did not establish jurisdictional error on the grounds contended. Rather, the Tribunal's error was within jurisdiction. That conclusion is not plainly wrong. 50 It might be observed that the description in HRZN at [67] of the Tribunal's misunderstanding of an unenacted international obligation as involving an "error of law" is perhaps undesirable because it does not make clear that unenacted non-refoulement obligations are not "law" for domestic purposes or for the purposes of the implied condition of a statutory conferral of decision-making power that the decision-maker act in accordance with law. 51 As noted at [30] and [39] above, the content of unenacted international treaty obligations can only be introduced as law by Parliament enacting those obligations into domestic law, not by the Executive facilitating entry into a treaty. The Tribunal's error in HRZN was about the content of a treaty obligation. 52 An error is not necessarily an error within jurisdiction merely because the error is about something which is not a mandatory relevant consideration. However, to succeed on an application for judicial review, the appellant must establish that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in some way. The appellant did not conduct the case on the basis that the Minister's error established legal unreasonableness or that the decision was irrational or that the Minister's error gave rise to some ground of jurisdictional error other than in the specific way mentioned. 53 It follows that Ground 1 must be dismissed. It also follows that Ground 2 of the Minister's notice of contention - contending that any error was immaterial - need not be decided. Notwithstanding - if it is correct that the Minister made an error about the content of Australia's unenacted non-refoulement obligations and if that had been shown to give rise to a decision made in excess of jurisdiction - the error is likely to have been shown to be material because it is possible that the Minister might have made a different decision. 54 The Minister submitted that the only realistic possibility was that the questions about non-refoulement would have been deferred even if the Minister had not made the conceded mistake. That conclusion might be thought to be likely when one reads the reasons in context. But that is not the test. The Minister chose to take non-refoulement obligations into account at the point in time in which she did, presumably because it informed her decision as to what was in the national interest and how she should exercise her discretion and, on that basis, it is at least possible that she may have reached a different conclusion if she had correctly understood the content of the unenacted obligations.

GROUND 3 55 As identified in written submissions, Ground 3 was that the primary judge erred by failing to find that the decision was affected by three jurisdictional errors, namely that: the Minister failed meaningfully to read and consider the materials before her: Ground 3(b); the Minister failed meaningfully to consider the merits of the case: Ground 3(c); and it might reasonably be apprehended that the Minister might have made the decision otherwise that on the merits of the case: Ground 3(d). 56 The primary judge addressed these issues at J[75] to [113].

Grounds 3(b) and (c) 57 The evidence at trial included that: At 11.30am on 7 December 2021, Luke Morrish of the Department sent an email to the Minister's office, attaching various documents, including a "decision page", a draft statement of reasons, an index and 29 supporting documents (the Brief): J[16]. The Brief was printed on 7 December 2021 and delivered to the Minister's office: J[17]. Before being considered by the Minister, the documents attached to Mr Morrish's email underwent formatting changes, including by the addition of the words "OFFICIAL: Sensitive Personal Privacy" to the header and footer of each page: J[18]. Mr Muir, a public servant in the Department, was cross-examined extensively on the differences between the two versions of the Brief. His evidence included that the formatting changes were standard practice. The Minister signed the signature pages of the documents on 9 December 2021. On 10 December 2021, the signed pages were scanned and emailed back to the Department: J[82]. Mr Muir's evidence included that it was Departmental practice, and agreed with the Minister's office, that the Minister would return a scanned copy of anything that she had annotated, but if nothing had been signed or annotated it would not be scanned and returned. Mr Muir was cross-examined extensively on this issue. On 16 December 2021, a Departmental officer confirmed, in a response to a query as to whether the hard copy of the Brief could be shredded, that it could. Mr Muir's evidence included that hard copies of signed submissions and briefs were routinely destroyed after a period of approximately two months: J[12]. Mr Muir's evidence on this issue was not challenged during cross-examination. 58 In rejecting the submission that the Minister had failed "meaningfully" to consider the material or the merits, the primary judge found as a matter of fact that the Minister had: received the entirety of the Brief (comprising 244 pages and including the relevant decision documents), both electronically and in paper form: J[80]; and considered that material (personally): J[87] to [89]. 59 The appellant had submitted that the Minister had no more than a couple of hours to consider the material: J[88]. The primary judge considered this proposition was "by no means clear" and found, in any event, that what was required for a proper consideration of the material was not as significant a burden as the appellant would have the court find and "was certainly not so significant that the court could properly infer that the material went relevantly unconsidered": J[89]. 60 None of the findings referred to in the two paragraphs above have been shown to be erroneous. Indeed, none were squarely challenged by the notice of appeal. 61 At trial and on this appeal, the appellant relied upon the decision of Colvin J in McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258 and the decision of the Full Court, dismissing an appeal from that decision: [2022] FCAFC 199; 292 FCR 595. The High Court has heard an application for special leave to appeal the orders of the Full Court, and has reserved its decision. No one suggested that this should delay the decision in this appeal. 62 The appellant relied in particular on a comparison of the particulars provided in McQueen with the much larger number of particulars relied upon by the appellant in the present case: AS[41], [44] to [46] and [65]. The appellant submitted that Particular 3(a) in the present case "pleads most of [the] 15 bases [in McQueen] and about 50 additional bases" (appellant's emphasis): AS[41]. Particular 3(a) comprised 15 pages of the 21 page amended originating application, constituted by paragraphs numbered from i to lxvii, many of which comprised numerous subparagraphs. It is reproduced at J[76]. The appellant submitted it contained 65 assertions or "bases", but that may be an underestimate: AS[43]. Contrary to what seems to be the assumption underlying this submission, the fact that the appellant's case contained more particulars or assertions than were contained in McQueen did not make the appellant's case better than that in McQueen. The appellant also submitted on appeal, as he did at trial, that the factual similarities between the present case and McQueen were "numerous": AS[44]. The primary judge concluded that the circumstances in McQueen "were markedly different as a whole": J[95]. 63 The primary judge's task did not require a laborious comparison of the facts before him with the facts in a different case, any more than it required a totting up of the number of particulars in each. The primary judge had to assess the issues before him, on the facts before him, in the particular statutory context raised by the issues. This is what he did. 64 On appeal, the appellant quibbled with whether or not the circumstances of the present case were markedly different from those in McQueen. For example, the appellant contended at AS[67] that the summary given to the Minister in the present case "was much less complete than the one in McQueen". It is not clear why that is so or why it matters. The real issue, so far as concerns the primary judge's findings of fact, is whether there is any proper basis for this Court, on an appeal by way of rehearing, to interfere with those findings. None has been demonstrated. 65 The appellant noted that the Full Court in McQueen at [63] to [70] rejected the argument that self-serving statements in reasons (for example such as the statement "I have considered the representations made") were sufficient to dispel the inference that the Minister considered merely the summary of those representations: AS[48]. The appellant submitted that the same applies to the "self-serving statement" at R[9] that the Minister "personally did so". 66 All that is stated at R[9] is that the Minister had taken certain identified information into account. The primary judge in the present case did not rely on a statement by the Minister in the materials she signed that she had personally considered the representations which had been put. The reasoning of the Full Court in McQueen at [63] to [70] is not directly applicable. 67 The appellant submitted that the Full Court in McQueen at [71] and [72] rejected the suggestion that, merely because Mr McQueen's representations were part of the material given to the Minister, there should be a presumption that he directly looked at them: AS[48]. It is important to understand the context in McQueen (a s 501CA(4) case) and what the Full Court actually stated. The Full Court described the circumstances at [72] as "somewhat bizarre" and then stated: … There is nothing "natural" about the [decision-making] process disclosed by the evidence. In circumstances of no objective urgency or pressing expedition and after long Departmental delays, the Minister gives himself not much more than a 24 hour period in which to make a decision with profound effects for Mr McQueen's life, a period during which the Minister drove (or was driven) from Canberra to Sydney and which included a period of time overnight, and where the Minister has sworn that he made his decision inside his residence in Sydney but then for some reason the proof of the decision is a photograph taken on the lap of a person in a car. If the process had been interrogated further, perhaps a clearer picture would have emerged. In these circumstances, there is no room for any presumptions or assertions about what is, or is not, a "natural" decision-making process. 68 In the present case, the primary judge stated at J[95] and [96]: Although there are discrete parallels [with McQueen], the circumstances here are markedly different as a whole. The urgency that attended the Cancellation Decision has already been explained. There is nothing unorthodox about it, nor anything else that should incline the court safely to infer the want of consideration that the applicant alleges. As I have noted - and without intending any disrespect - the applicant's contention proceeds more by way of conspiracy theory than an orthodox invitation to infer. It is, on that score, prudent to note what might otherwise be presumed. In circumstances where a department has prepared a document for Ministerial review, the court will usually infer that the Minister read it: Stambe v Minister for Health (2019) 270 FCR 173, 190 [74] (Mortimer J); Makarov v Minister for Home Affairs (2021) 286 FCR 412, 435 [88] (Logan, Banks-Smith and Anderson JJ). It is then, an unusual course to infer to the contrary; and one that should require a compelling evidential foundation that rises well beyond conspiracy theory. 69 The primary judge was not prepared to infer that the Minister did not consider the material provided to her: J[95]. The appellant bore the onus of proof in that respect. 70 The circumstances established by the evidence were not such that an inference should be drawn that the Minister did not read the material put before her. This conclusion does not depend on any "presumption" in the Minister's favour; rather, it is a conclusion based on the particular circumstances established by the evidence. The evidence unequivocally established that the Minister received the Brief. She had sufficient time available to consider the Brief. The reasons she signed conveyed that she had considered the material. There was a degree of urgency. There were no particular circumstances which individually or cumulatively gave significant weight to an inference that the Brief was not considered. 71 The appellant made a number of submissions about what should be inferred. A new one, sought to be raised for the first time on appeal and addressed later in these reasons, was that "it is safe to infer" that an unspecified form of unproven misconduct on the part of the Secretary of the Department "cascaded down to those directly or indirectly reporting to him" and that this "cascading effect corroborates the inference that the Department … did not place the [r]easons before [the Minister], except for the pages for her to sign": AS[72]. On appeal, the appellant submitted that the Minister only signed the signature pages despite not having the whole of the relevant documents before her. The same contention was made at trial as part of a case which the primary judge described as the "stuff of wild conspiracy". The primary judge then stated at J[86]: The applicant's contention would have the court accept that Ms Andrews received and read only part of what was emailed; and, worse, was then moved to mark some of it in ways that falsely suggested that she had received and considered it all. It suffices to note that I would require evidence much clearer than what here exists before making such a serious finding against anybody, much less a former Minister of the Commonwealth. 72 Contrary to the appellant's submission, there was an abundance of evidence to support the primary judge's conclusion that the Minister was given the whole Brief and considered it. She received it both electronically and in paper form. 73 The various inferences for which the appellant contends are not ones which should be drawn. In particular, the idea that unspecified and unproved misconduct on the part of a Secretary of a Department would "cascade down" to infect the rest of the Department including, specifically, those who provided a particular Brief to the Minister is, to be blunt about it, silly. 74 It should be noted that, whilst the appellant complained about the manner in which the primary judge sought to summarise the voluminous particulars contained in the amended originating application, the appellant did not clearly articulate which specific matters were not considered adequately and how that was material to the primary judge's reasons or conclusions. 75 At several points in his lengthy submissions, the appellant submitted that evidence was improperly destroyed - see, for example: AS[51] to [52], [54], [56], [57], [68] and [72]. However, the primary judge held at J[85] that what occurred was standard practice. No error was shown in his Honour's reasoning to this conclusion. 76 In a similar vein, the appellant criticised the primary judge's finding at J[82] that all but the signature pages were destroyed: A[53]. The primary judge found that the signature pages were preserved by being scanned and returned to the Department: at J[82] to [83]. Again, no error has been shown in the primary judge's reasoning or conclusions. The appellant sought to make much of the fact that only some pages displayed punch holes: AS[54] and [55]. However, in accordance with what the evidence indicated was standard practice, this was because the Minister's office sent back to the Department the individual pages that had been marked and/or signed: J[82] and [85]. 77 The primary judge's conclusion that the Brief was received and appropriately considered by the Minister (personally) has not been shown to be attended by error. Grounds 3(b) and (c) must be dismissed.

Ground 3(d) 78 Particular 3(d) to Ground 3 at trial was: A reasonable layperson informed of the relevant facts, including those described in particular 3(a), might apprehend that, by reason of pre-judgment or otherwise, the Minister might have made the decision otherwise than on the merits of the [appellant's] case. 79 As noted in Particular 3(d), reliance is placed on Particular 3(a), being the voluminous particulars relevant also to Grounds 3(b) and (c) of the trial and appeal, referred to above. Counsel for the appellant emphasised the following assertions in his written submissions at AS[68], drawn from Particular 3(a): (a) [the Minister] allegedly received a Brief (including the Submission) which the Respondent (disturbingly, especially in light of the overarching obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and the model litigant expectations) says was destroyed; (b) the evidence suggests that she did not even receive the entire Brief; (c) the Brief was prepared back to front, for [the Minister] to first indicate how to exercise the power and only then sign the Reasons justifying that exercise; (d) there was no invitation for her to make any comments on the Brief (nor did she) or to personally consider and understand the materials before her; (e) she adopted without a single question or change or comment a Brief with multiple instances of errors, contradictions and oddities; (f) the evidence shows that the Decision was "required" to be made "urgently" and before 14 December 2021, when any such urgency was for [the Minister] alone to decide, which raises the question of who demanded urgency and why. It should be inferred that the Decision was "taken in accordance with an overriding rule or policy or at the direction or behest of others". 80 The matters emphasised by the appellant in written submissions do not demonstrate an apprehension of bias on any basis: As to (a), first, the fact that the hard copy of the brief was destroyed says nothing about the decision-making process that led to the decision. Second, there was no error on the part of the primary judge in not drawing an adverse inference from the fact it was destroyed, particularly in circumstances where the evidence indicated that this was in accordance with usual practice. As to (b), the primary judge's conclusion that the Minister did receive the brief has not been shown to be incorrect. As to (c), the brief was not "prepared back to front". There is nothing unusual in a brief indicating a conclusion up front with reasons for that conclusion then being expressed. In the present context, it is wholly unsurprising. As to (d), the absence of an express invitation to make comments on the brief or personally to consider the materials is both irrelevant and unsurprising. One would not expect a brief given to a Minister in relation to the exercise of a power which that Minister could only exercise personally to explain to the Minister that it is given to her for her consideration and that she is free to comment on it. As to (e), there is nothing particularly surprising about the Minister adopting and signing the reasons. That demonstrates that she agreed with them. As to (f), the primary judge concluded at J[81] that it was preferable for a decision to be made promptly. That conclusion has not been shown to be wrong. In this regard, it is noted that, at AS[47], the appellant appears to challenge the factual finding made by the Minister in relation to the date on which ASIO's recommendation was received. The appellant submitted that the Minister's reasons at R[15] "assert" that the Department only received ASIO's recommendation 14 days after it was issued. The appellant submitted this was "implausible", because the recommendation was that the appellant represented a risk to security and that it "is more likely that the Department received the recommendation on 16 or 17 November 2021". As the respondent submitted, this challenge was not raised by the appellant's application for review before the primary judge, was not raised by the appellant's notice of appeal and lacks any evidentiary foundation. 81 The appellant also referred to the following passage in Re Romato; Ex Parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [24]: There is no suggestion that the Acting Deputy Director was not duly authorised under s 15 of the Act to consider and determine the applicant's application for an ETP. He being duly authorised, it is he who must consider and determine the application. He will commit a reviewable error if he acted under dictation: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54. The usual circumstance in which a person acts under dictation is where a third person has given a direction as to the manner of exercise of the power as in the Ansett Transport Industries case. However, at common law, dictation can also occur where a decision-maker felt obliged to decide a matter in a particular way because of another's conclusions in relation to the matter even though the other person had given no direction that such an approach should be followed: Evans v Donaldson (1909) 9 CLR 140. 82 The reason for the appellant's reference to this case is obscure. There was no proper basis to infer that the Minister "felt obliged" to make her decision in accordance with someone else's conclusion. 83 The appellant submitted that J[110] to [112] "refer only to bias, ignoring altogether that Particular 3(c) [sic 3(d)] pleads that the apprehension arises 'by reason to pre-judgment or otherwise'": A[70]. There is nothing in this complaint. The primary judge articulated his reasons by reference to the submissions which had been made - see: J[110]. His Honour considered and dealt with the substance of the case which was pleaded and put. 84 Ground 3(d) should be dismissed.

Application to adduce further evidence 85 As mentioned at [71], the appellant sought to adduce new evidence on appeal. The appellant submitted that the former Secretary of the Department, Mr Michael Pezzullo AO, was removed from office due to misconduct. This was the topic of the proposed new evidence. 86 Counsel for the appellant submitted that "it is safe to infer … that [Mr Pezzullo's] misconduct cascaded down to those directly or indirectly reporting to him" and that this "cascading effect corroborates the inference that the Department" did not place the entire Brief before the Minister, but only the pages requiring signature. He submits that the "cascading effect" also corroborates what counsel describes as a "strong" inference that "the critical evidence which was destroyed would have confirmed that [the Minister] did not receive all relevant pages": AS[71] and [72]. 87 Finally, the appellant submitted that the fact that Mr Pezzullo AO was removed from office as a result of findings of misconduct was a matter of public knowledge and judicial notice of that fact should be taken irrespective of whether the new evidence is admitted: AS[73]. 88 The respondent felt the need to respond to these submissions, soberly and correctly submitting at RS[47]: First, the material relied upon by the appellant is largely inadmissible and does not demonstrate that Mr Pezullo [sic] AO engaged in misconduct, or (if he did) what the nature of that misconduct was. Second, this Court is not in a position to make any determination as to the occurrence of any misconduct of any particular kind. Third, even if such a process was possible, it is nonsensical to suggest that such evidence could affect the outcome of the present case in the way suggested in light of the other evidence before the primary judge. Further, … the circumstances of Mr Pezzullo AO's removal from office is not a matter of public knowledge. There is no basis for the Court to take judicial notice of any matter. 89 No further time should be wasted on an application which should never have been made.

GROUND 4 90 The part of Ground 4 which was pressed was that the primary judge erred by failing to find that the person who made the decision "was not the (or a) Minister" (appellant's emphasis) because Ch II of the Constitution impliedly requires that only one person be appointed as a Minister to administer a given Department or to the relevant Ministerial office. 91 On the basis of this implied limitation, the appellant argued that the Hon Karen Andrews' appointment as Minister for Home Affairs was terminated by the later appointment of the Hon Ben Morton MP on 30 March 2021 and the Hon Scott Morrison MP on 6 May 2021 "to administer" the Department of Home Affairs. The appellant contended that Ms Andrews, whose appointment as Minister had been implicitly terminated by the later appointments, could not exercise the power in s 501(3)(b) with the result that her decision to cancel the appellant's visa was invalid. 92 The instrument of appointment for Mr Morton dated 30 March 2021 stated: I, DAVID JOHN HURLEY, Governor-General of the Commonwealth of Australia, pursuant to section 64 of the Constitution, hereby appoint BEN MORTON, a member of the Federal Executive Council, to administer THE DEPARTMENT OF HOME AFFAIRS. 93 The instrument of appointment for Mr Morrison dated 6 May 2021 stated: I, DAVID JOHN HURLEY, Governor-General of the Commonwealth of Australia, pursuant to sections 64 and 65 of the Constitution, hereby direct and appoint SCOTT JOHN MORRISON, a member of the Federal Executive Council, to administer THE DEPARTMENT OF HOME AFFAIRS and THE DEPARTMENT OF TREASURY. 94 Section 64 of the Constitution provides: 64. Ministers of State The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth. 95 Section 65 of the Constitution provides: 65. Number of Ministers Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs. 96 In Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391, it was held that the appointment of more than one person to administer a Department of State is not a circumstance that offends s 64 of the Constitution, as the primary judge correctly held at J[123]. 97 The proposition that more than one person may be appointed to administer a Department of State was recently endorsed (in obiter) by the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 97 ALJR 214 at [24]: Section 64 of the Constitution requires that Ministers be appointed to administer departments, although it permits several Ministers to be appointed to administer the one department. 98 As he did at trial (see J[120]), the appellant relied on appeal on the reasons of Gummow and Hayne JJ in Re Patterson at [208] to [209] where their Honours stated (references omitted): The issues which thus arise in the past have attracted differences of opinion between distinguished constitutional lawyers. In 1981, the Senate Standing Committee on Constitutional and Legal Affairs reported into the constitutional qualifications of members of Parliament. In Ch 6 of that Report extracts were set out from opinions held by the Attorney-General's Department from Mr G E Barwick QC and Mr D I Menzies QC. In his Opinion, Sir Garfield Barwick stated: "The office of a Queen's Minister of State is not described as such in the Constitution. Its identity is to be gathered from sections 64 and 65. The Governor-General may appoint officers who hold office during pleasure. If such an officer is a Minister of State, his office is that of a Minister of State. The office is that of administering a Department of State. It is that office to which [s 44(iv)] does not apply. Not only is the singular used in the text of the sub-section, but in the nature of things it seems to me the office of administering a Department is a single office. The form of the sections (64 and 65) further suggests that the office should be occupied by one incumbent, though there may be some room logically for admitting the possibility of a joint occupancy of the office of officers jointly responsible for the administration of the department in question. In my opinion, however, the right construction of the Constitution requires that there should be a sole occupant of the office, and but one officer responsible for the administration of a department. But, whatever the propriety of that view, it is to my mind certain that an officer assisting the Minister who occupies the office of administering a Department of State cannot be said himself to occupy the office itself. The very description of 'assistant' denies the possibility." Sir Douglas Menzies took a contrary view. He said that he did not read s 64 of the Constitution as: "requiring that only one person may be appointed to administer a department and I consider that the Governor-General could appoint a number of officers to administer a department and in particular the Department of Defence. I would see no objection to one Member of Parliament being appointed Minister of Defence and other members appointed Assistant or Junior Ministers of Defence provided that the appointment in each case is to administer the Department. In my opinion to administer a department includes to take part in the administration of a department. The division of labour among the Ministers would I think properly be a matter ultimately for arrangement by the Prime Minister who is responsible for advising the Governor-General to make the appointments. Any officer so appointed could of course participate in the sum provided by Parliament under s 66 without incurring any disqualification under s 44." (Emphasis added.) The balance of academic opinion has supported the construction given to s 44 by Sir Douglas Menzies. 99 In these paragraphs, Gummow and Hayne JJ describe and endorse the view of Sir Douglas Menzies that multiple persons could validly be appointed to administer a department. 100 The appellant submitted, on appeal as at trial, that their Honours expressed the obiter view that the same Ministerial office could not be occupied by more than one incumbent at the same time: AS[78]; J[121]. This submission should be rejected. Their Honours were not considering that issue at all, as the primary judge correctly observed at J[121]. It is true that Gummow and Hayne JJ posited a hypothetical scenario in which a Minister of Defence was assisted in the administration of a department by Assistant or Junior Ministers of Defence, but this does not equate to a view that an office can only be held by one Minister. 101 In Zoeller v Attorney-General (Cth) (1987) 76 ALR 267, Beaumont J considered an argument that the appointment of the Hon Michael Duffy to act as the Minister administering the Department of Foreign Affairs and Trade at the same time as the Hon William Hayden (who was on leave for medical reasons) was invalid on the basis that "only one Minister can administer each Department of State" and that "it was not lawful to appoint two Ministers (Mr Hayden and Mr Duffy) to administer the one Department of Foreign Affairs and Trade": at 278. Beaumont J rejected any such implied limitation to s 64, stating at 278-9: There is nothing in the terms of s 64 which would require it to be read down in the manner suggested by the applicant. The language is general enough and there is no logical reason to restrict the administrative arrangements which might be desirable in the interests of good government. On the contrary, there is every reason to suppose that flexibility was desirable and therefore intended to be conferred. Nor, in my view, is the principle of responsible government any obstacle: both Ministers would remain answerable to Parliament. In my opinion, to confine the operation of s 64 in the way contended for by the applicant would require explicit language. In the absence of such language, the provisions should be liberally construed so as to afford a proper opportunity to the Executive to introduce administrative arrangements which are appropriate in the particular circumstance. 102 As the respondent submitted, in Re Patterson at [210], Gummow and Hayne JJ set out this part of Beaumont J's reasoning and expressly endorsed it at [211], stating: This reasoning should be accepted. The Court should favour a construction of s 64 which is fairly open and which allows for development in a system of responsible ministerial government. 103 Although not entirely clear, it appears that the appellant was submitting that it is permissible to appointment a "Minister" and an "Assistant Minister" to administer a Department of State, but not two persons designated as "Minister". If that is so, the submission should be rejected. 104 It is permissible for more than one Minister to be appointed to administer a Department of State. There is no implied limitation of the kind for which the appellant contends. It is not mandated or suggested by the terms or structure of the Constitution. It is an unlikely implication given the Constitution is framed so as to avoid inflexibility and to permit development and adaptability - see: Re Patterson at [14] to [17] (Gleeson CJ). 105 The appellant submitted that Zoeller did not directly address the present case. The appellant submitted that the issue in the present case was whether more than one person could be appointed to the same office - Minister for Home Affairs - not whether more than one Minister occupying different offices could be appointed to administer the same department. This submission misunderstands s 64 of the Constitution and what occurred in this case. The Governor-General's power in s 64 is to appoint officers to "administer" departments. The second paragraph of s 64 provides, in effect, that those officers become "Ministers of State for the Commonwealth" by reason of the appointment to administer the department. What occurred in this case is that two existing Ministers (Mr Morton and Mr Morrison) were appointed to "administer" the Department of Home Affairs, in addition to a third Minister (Ms Andrews). 106 It is noted that the instrument of appointment in relation to Mr Morrison referred to both s 64 and s 65 of the Constitution. The appellant did not directly refer to this or rely upon it in support of his arguments. Section 65 of the Constitution empowers the Governor-General to direct a Minister of State to hold an office. However, notwithstanding the reference to s 65 in the instrument appointing Mr Morrison to administer the Department of Home Affairs, the instrument did not direct Mr Morrison to hold any office. Accordingly, in appointing Mr Morrison to "administer" the Department of Home Affairs, the Governor-General was exercising the power in s 64 and did not exercise the power in s 65. The appellant referred to a webpage from the Parliament of Australia's website a copy of which was made on 20 January 2023. This stated that Mr Morrison was Minister for Home Affairs from 6 May 2021 to 23 May 2022. An ex post facto statement of this kind cannot alter the fact that Mr Morrison was only appointed to administer the Department of Home Affairs. 107 The appellant submitted that the principle of responsible government in Ch II implies a revocation in the case of a subsequent appointment of another person to the same office. That is not what occurred here. In the present case, multiple Ministers were appointed to administer the same Department. It follows from the conclusion that it is permissible to have more than one "Minister" administering a Department of State that the subsequent appointment of a second Minister to administer the same department does not impliedly revoke an earlier appointment. There is nothing about the terms or circumstances of the appointments of Mr Morton and Mr Morrison that suggest a revocation of Ms Andrews' appointment was either implicit or desired. The appointments of Mr Morton and Mr Morrison did not automatically bring with them the cessation of Ms Andrews' appointment to administer the Department of Home Affairs or her position as Minister for Home Affairs. 108 Ms Andrews' appointment was made public in the Ministry List published on the Parliament's website from 30 March 2021 to 23 May 2022, covering the time the decision was made. There is no doubt that she was appointed as Minister for Home Affairs to administer the Department. As noted, her appointment was not impliedly revoked. She was sufficiently accountable to Parliament given her appointment was known. 109 Ground 4 should be dismissed.

CONCLUSION 110 The appeal should be dismissed with costs. I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Wigney, Thawley and Wheelahan.