ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 2 The applicant is a citizen of the People's Republic of China (PRC). He arrived in Australia in October 2012 on a tourist visa and applied for a protection visa. In that application he alleged religious persecution in the PRC on the basis of his professed Christianity. 3 An Interpol Red Notice (IRN) in relation to the applicant was issued on 12 March 2013. It states that the applicant had been charged under Art 193 of the criminal law of the PRC with diverting 60 million yuan from the account of a company of which he was legal representative to his private use and of conspiring with others in using three companies to defraud a fourth company of 15 million yuan. The IRN states that the applicant is a "fugitive wanted for prosecution". 4 On 6 March 2013, the applicant was invited to comment on information in the possession of the Minister's Department. That information was that the Australian Government had been notified by PRC authorities that the applicant was wanted by the Public Security Bureau in the PRC on suspicion of committing a serious economic crime, namely embezzlement of company funds in the amount of roughly equivalent to AU$6 million. It was said that Chinese authorities had also informed the Government that a criminal investigation had been initiated in the case and that the applicant's Chinese passport had been cancelled. 5 In a fax sent to the Department on 15 March 2013, the applicant explained that he denied embezzlement. He claimed that he was unable to pay a commission to a local government mayor for the latter's services in arranging a loan because a bank had reneged on a promise to give the applicant a business loan, and now the mayor wanted revenge. The mayor's desire for revenge is said to be the source of the criminal charges which the applicant denies. A civil judgment had been given against the applicant on 18 February 2013. 6 On 11 May 2018, the applicant was given notice of the intention to consider refusing to grant him a protection visa. The notice stated that the Department held information about the applicant's "criminal history" which suggested that he may not pass the character test. The information included the letter from the Department dated 6 March 2013, the applicant's response to that letter dated 15 March 2013 and copies of Chinese civil litigation documents which the applicant had given to the Department on 6 June 2013. 7 Before responding to the notice of 11 May 2018, the applicant submitted a freedom of information (FOI) request to the Department. Certain information was released to the applicant. 8 On 30 August 2018, solicitors writing on the applicant's behalf responded to the notice of 11 May 2018. Referring to the IRN, the solicitors argued that the applicant was being prosecuted in the PRC for, in effect, a failed business venture, that he maintained his innocence and that non-refoulement obligations were owed to him. The solicitors also referred to "the FOI documents" which revealed that the applicant had been charged. 9 On 25 January 2019, an officer of the Department recommended that Australia has protection obligations to the applicant under s 36(2)(aa) of the Migration Act. The officer had interviewed the applicant in November 2013 for the purpose of his report. The officer found that as a necessary and foreseeable consequence of the applicant being removed to the PRC, there is a real risk in the sense of there being a real chance, as well as it being more likely than not, that the applicant will suffer significant harm. The officer did not make any assessment in relation to the character test in s 501 and stated that such an assessment should be conducted to consider whether the applicant meets the character test in order to be granted a protection visa. 10 The applicant's claims to religious persecution in the PRC were rejected by the Departmental officer on the basis that his claim to be Christian was not believed. The finding that there is a real risk that he will suffer significant harm if he was removed to the PRC was based on the consequences that might be faced by the applicant because of the allegations in the IRN, i.e. the likelihood of torture by the police until he confessed and almost certain conviction followed by life imprisonment in appalling prison conditions. 11 On 6 May 2019, the Department wrote to the applicant enclosing a copy of Direction 79. That is a direction titled "Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" issued by the Minister on 20 December 2018 pursuant to s 499(1) of the Migration Act. The Department also informed the applicant of the existence of the IRN issued on 12 March 2013 and enclosed a copy of the IRN. 12 The applicant's solicitors responded to this correspondence on 24 May 2019. The response referred to the IRN and argued that it was based on "trumped up charges". The applicant conceded that a property development that he had been involved in had failed, and asserted that that was not because of any crime having been committed. Direction 79 was referred to and submissions were made based on its provisions. 13 On 3 June 2019, the Australian Criminal Intelligence Commission produced a report on the applicant for the purpose of "possible visa cancellation" which recorded that there were "no disclosable Court outcomes" in relation to the applicant. That is to say, the applicant has a clean criminal record in Australia.

The Minister's decision 14 The Minister's decision to refuse the applicant's protection visa application under s 501(1) of the Migration Act was based on a submission made to the Minister by the Department of Home Affairs dated 3 October 2019. The Minister signed the submission on 14 October 2019 indicating that he wished to consider the case personally rather than refer it to a Departmental delegate. Of the four possible outcomes provided in the submission for the Minister to choose from, the Minister chose the "refusal outcome" which stated: [The applicant] has not satisfied me that he passes the character test. I have decided to exercise my discretion under s501(1) of the Act to refuse [the applicant's] visa. I hereby refuse [the applicant's] application for a Protection (Class XA) visa. My reasons for this decision are set out in the attached Statement of Reasons. 15 Attached to the submission was a draft statement of reasons which was adopted and signed by the Minister without amendment. The statement of reasons quotes from the IRN and summarises the allegations made in it. The statement of reasons summarises the applicant's account of the circumstances underlying the IRN and states that in considering whether it is reasonable to infer from the IRN that the applicant presents a risk to the Australian community, the Minister considered the seriousness of the alleged conduct and the representations made on the applicant's behalf regarding the nature and validity of the IRN. 16 The statement of reasons then contains the following paragraphs with regard to the Minister's conclusion on the risk that the applicant presents to Australian society: 19. Having considered all available information, I find that the arguments by [the applicant] and his representative do not invalidate the Interpol notice. I accept that not every Interpol notice supports a reasonable suspicion of risk, however I do not consider that this IRN falls into that category. 20. I note the large amounts of money involved in the allegations against [the applicant] and the seriousness of the alleged criminal conduct. In my view, fraud involving substantial quantities of funds is indicative of a level of sophistication in the criminal conduct. A perpetrator of this type of sophisticated fraud has the capacity and may continue to have the motivation to repeat the conduct such that it cannot be said there is no risk of reoffending. 21. I acknowledge that the allegations have not been proven, but note that [the applicant] has conceded he did take the money as a loan of which he did not repay as promised and as provided above in the civil litigation both he and his wife have been requested to repay the loan. I also note his representative's comments that in Chinese law he would be subjected to a life sentence if the charges are proven. It is therefore not without some substance that [the applicant] would be under suspicion of these charges. 22. On balance I am of the view that there is a serious and substantial issue to be addressed and, taken together with the possibility of reoffending, I infer that that [the applicant] poses a risk to a segment of the Australian community. Therefore I find that [the applicant] has not satisfied me that she (sic) passes the character test and she (sic) does not pass the character test by virtue of s501(6)(h) of the Migration Act. 17 Having reached that conclusion, the statement of reasons then goes on to consider whether the Minister's discretion to refuse the visa should be exercised by taking into account different discretionary considerations. 18 In that context, with regard to the expectations of the Australian community the statement of reasons includes the following: 33. In making my decision I have been mindful that the Australian community would expect that non-citizens who commit serious crimes in Australia or elsewhere can and should have their visa refused. 34. While it has not yet been conclusively established that [the applicant] has actually committed a crime, I consider that the Australian community would expect that a person facing serious charges should resolve those matters before their visa application is approved. 19 The statement of reasons states that the Minister accepts that his Department has found that the applicant is a person in respect of whom Australia has non-refoulement obligations. In relation to that, it then states the following: 37. I am aware that the statutory consequence of a decision to refuse to grant [the applicant] a Protection visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. 38. I am mindful that even if I refuse to grant [the applicant] a Protection visa, I have a personal non-compellable power in s195A 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 applicant]'s favour, he will be liable to removal as soon as reasonably practicable in accordance with s198 of the Act, including to China, having regard to s197C. 39. I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [the applicant]'s criminal offending in the making of my decision whether to refuse to grant him a Protection visa. 20 The statement of reasons ends with the following conclusion section, noting that the paragraph numbering is repetitive of earlier paragraphs and it is internally inconsistent: CONCLUSION 38. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Act and (2) all other evidence available to me, including information provided by, or on behalf of [the applicant]. 39. I concluded that [the applicant] does not pass the character test and he has not satisfied me that he passes the character test. 36. I find that the Australian community could be exposed to (significant) harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm. 40. I found the above consideration outweighed the countervailing considerations in [the applicant]'s case, including, his claims that he will suffer hardship and harm if returned to the People's Republic of China and international non-refoulement obligations, I have also considered the length of time [the applicant] has made a positive contribution to the Australian community and or the consequences of my decision for minor children and other family members. 41. In reaching my decision I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above. 42. Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant [the applicant]'s application for a Protection (Class XA) visa under s50l(l) of the Act.

The applicant's grounds of review 21 By a further amended originating application, the applicant advances the following grounds of review: 1. The Minister misconstrued and misapplied s. 501(6)(h) of the Migration Act. Particulars (a) The Minister made his decision on the basis that there was an Interpol notice in force in relation to the applicant from which was reasonable to infer that the applicant may or might (rather than "would") present a risk to the Australian community or a segment of that community. 2. The Minister acted in breach of the requirements of procedural fairness, or otherwise erred in the exercise of his jurisdiction pursuant to s. 501 of the Migration Act, in that he failed to consider material and information constructively before him. Particulars (a) Failure to consider the findings of the Minister's officer or delegate, who found that the applicant faced a real risk of significant harm were he to return to China, as follows; (i) That there is no presumption of innocence in the Chinese legal system, and that 99.9% of defendants in criminal proceedings are convicted. (ii) That there is a widespread practice of police in China to torture suspects to obtain confessions, and that he was satisfied that the applicant stood a substantial risk of being tortured. (iii) That the prison system in China is overcrowded, food is often inadequate, and many detainees depend on relatives to supply supplemental food, medicines and warm clothing, and that in many cases sanitation, and access to potable water were inadequate. 3. [deleted] 4. The Minister's decision was legally unreasonable. Particulars (a) There was no logical or rational inference available from the facts (paragraphs 20 and 21 of the Minister's decision) that, (i) The applicant did not repay a loan having been requested to do so, and, (ii) That a large sum of money was involved, and, (iii) That the applicant would be subject to a life sentence if the charges against him were proven, to the conclusion that it is "therefore not without some substance that [the applicant] would be under suspicion" of the charges that he faces. (b) The Minister's opinion that the Australian community would expect that the applicant would resolve the charges against him before his visa application was approved was unreasonable in that; (i) It must necessarily be implied that the opinion of the community would be formed on the basis of a knowledge of the law and the evidence in the matter. (ii) Resolution of the charges against the applicant would necessarily require him to return to China, which was the country in which he feared serious harm, and, (iii) Information actually or constructively before the Minister was to the effect that 99.9% of those charged with criminal offences were convicted. (c) The Minister could not have reasonably reached a conclusion that he may decide to grant to applicant a visa pursuant to s. 195A of the Migration Act in view of reasons that he gave for refusing the applicant's application for a Protection Visa. (d) Despite accepting that the allegations against the applicant had not been proven, the Minister based his assessment of the risk to the Australian community, or a segment of that community on the possibility of the applicant "reoffending". 22 Aside from deleting ground 3, the amendment that the applicant sought to make to the amended originating application filed on 29 January 2020 was the introduction of particular (d) to ground 4. 23 The Minister opposed the amendments with the exception of the deletion of ground 3. The opposition was not on the basis that the amendment prejudices the Minister in anyway, but only on the basis of the Minister's submission that the ground sought to be introduced is without merit. 24 In those circumstances, I consider that the appropriate course is to allow the amendments and then decide on the merit or otherwise of the new ground 4(d) in the ordinary course. The applicant should accordingly have leave to file the further amended originating application. 25 It will be observed that grounds 4(a) and 4(d) relate to the legal reasonableness of the Minister's reasoning in concluding that the applicant would present a risk to the Australian community or a segment of that community. Those grounds are closely related to ground 1 which is focused on whether it was open to the Minister to reasonably draw the inference that the applicant would present such a risk - all three grounds include considerations of reasonableness. It is therefore convenient to deal with those three grounds together.

Grounds 1, 4(a) and 4(d): Misconstruction and misapplication of s 501(6)(h); unreasonableness of the inference as to risk 26 As indicated, the Minister refused the applicant's application for a protection visa on the basis that the Minister was not satisfied that the applicant passes the "character test" as defined in s 501(6)(h) of the Migration Act. The relevant provisions are the following: 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). … (6) For the purposes of this section, a person does not pass the character test if: … (h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force. Otherwise, the person passes the character test. 27 The applicant draws attention to the use of the word "would" in paragraph (h) and submits that more than a mere suspicion is required. The word chosen by the legislature is not, for example, "might", i.e. "from which it is reasonable to infer that the person might present a risk". The applicant submits that there must be some evidence of a crime having been committed, or at least particulars of the offence which combined with the applicant's circumstances raise the necessary inference, i.e. that it is reasonable to infer from the Interpol notice that the applicant would present a risk to the Australian community or a segment of that community. 28 To date, there is no authority in this Court or the High Court that has considered the proper construction of s 501(6)(h). The Minister submits that "would" is used merely to reflect that the inquiry is with regard to something that might happen in the future and that it does not say anything about the probability of the risk occurring, its juxtaposition with "might" being a false dichotomy. 29 The Minister refers to the Explanatory Memorandum (EM) to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) that led to the enactment of s 501(6)(h) which (at [55]) states the following: 55. The purpose of new paragraphs 501(6)(g) and (h) of the Migration Act is to acknowledge that a person who is the subject of an adverse ASIO assessment or Interpol notice is likely to represent a threat to the security of the Australian community or a segment of that community. These amendments ensure that a person objectively does not pass the character test if either of these provisions apply to them, without the need to further assess them against the subjective criteria in subsection 501(6) of the Migration Act. 30 From this, the Minister submits that the provision envisages that he may legitimately infer from the fact that it is alleged that the person has behaved in the manner described in an Interpol notice that they would present a threat to the Australian community (or a segment thereof). That is to say, the fact of the Interpol notice and the allegations in it is sufficient to draw the inference that the person would present the risk that is referred to. 31 The Minister submits that no evidence of the crime is required before the requisite inference can be drawn and that it would be an unusual construction of s 501(6)(h) if such evidence was required, as the Minister would otherwise be expected to have a sophisticated level of understanding of foreign law. The Minister further submits that such a construction of the provision raises many questions including, from where would the Minister seek out such evidence of the alleged crime and from which provision(s) in the Migration Act can such a duty to seek out such evidence be derived? 32 Paragraph (h) is to be contrasted with some of the other provisions that were introduced at the same time. For example, paragraph (f) provides that if the person has, in Australia or a foreign country, being charged with or indicted for one or more of the crimes of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern, the person fails the character test. 33 In relation to that provision, i.e. paragraph (f), the EM (at [52]) states that the purpose of the provision "is to ensure that where a person has been charged with or indicted for one of these serious offences, the person objectively does not pass the character test". That is to say the mere charge or indictment for such a serious crime is sufficient to lead to failure of the test and therefore cancellation or refusal of the visa even though no conviction has been entered. 34 Another example is paragraph (g) which provides that if the person has been assessed by ASIO to be directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) then the person fails the character test. That is to say, the fact of the ASIO assessment determines the outcome without any residual assessment or inferential reasoning to a conclusion required by the Minister. The definition of security that is referred to encompasses the protection of, and of the people of, the Commonwealth and the several States and Territories of Australia from, as one would expect, a variety of serious threats including espionage, sabotage, politically motivated violence and so on, whether directed from or committed within, Australia or not. 35 There are two important distinctions between these provisions and paragraph (h). First, in respect of both paragraphs (f) and (g), the mere fact of the charge or indictment, in the one case, and the ASIO assessment, in the other, leads to the failure of the character test - there is no assessment to be made by the Minister. Secondly, the reason for that in paragraph (f) is the seriousness of the crimes. It may be inferred that the seriousness of the specified threats and the fact of an assessment having been undertaken and a conclusion reached by ASIO are the reasons for that outcome with reference to paragraph (g). 36 Paragraph (h) is different. First, as identified, an assessment has to be made by the Minister - the Minister has to "reasonably infer … from the Interpol notice" that "the person would present a risk to the Australian community". 37 Secondly, not all Interpol notices convey that a crime has even been committed, let alone by the person who is subject to the notice, and the crime as in this case may not be as serious as the crimes referred to in paragraph (f) and the threats referred to in paragraph (g). 38 In that regard, the officer of the Department who on 25 January 2019 recommended that the applicant is a person in respect of whom Australia has non-refoulement obligations, stated the following in his report: Interpol notices (of several colours for various purposes) are international requests for cooperation or alerts allowing police in member countries to share critical law-enforcement information. Notices are published by Interpol's General Secretariat at the request of authorised entities. In the case of IRNs, the persons concerned are wanted by national jurisdictions for prosecution or to serve a sentence based on an arrest warrant or court decision. IRNs are used to assist national police forces in identifying and locating these persons with a view to their arrest and extradition or similar lawful action. While some Interpol member countries consider an IRN to be a valid request for provisional arrest for possible extradition, in Australia persons cannot be arrested on the basis of an IRN alone. Rather, the requesting country must seek the person's extradition in relation to the offences alleged against the person and an extradition arrest warrant would need to be issued by an Australian magistrate. Extradition requests are managed by the Attorney-General's Department (AGD). 39 Also, in the Departmental submission to the Minister, the Minister was advised of the following: In Australia, Red Notices do not provide lawful grounds for domestic policing agencies to arrest the subject individual. An Interpol Red Notice is not an international arrest warrant, and Interpol authorities cannot compel the law enforcement authorities in any country to arrest someone who is the subject of a Red Notice. Each member country decides what legal value it gives to a Red Notice and the authority of the law enforcement officers to make arrests. 40 It is thus apparent that there is a variety of colours of Interpol notices for different purposes, and that an IRN may be issued because the person the subject of the IRN is wanted for the purposes of being prosecuted, as in this case, or because they have already been convicted and are wanted for the purpose of serving their sentence. So, even leaving aside the other colours of notices that deal with other matters including missing persons and identifying bodies - notices that could not give rise to a reasonable inference of risk, an IRN may indicate that a crime has been proven against the person, but it may only indicate that a crime is alleged against the person. Clearly, each could lead to very different conclusions with regard to whether the person has actually committed a crime and whether they might commit another crime in Australia such as to present a risk to the Australian community or a segment thereof. 41 The Interpol notice system is essentially a coordinated system of sharing information between national police services - see the discussion in FUD18 v Minister for Home Affairs [2019] FCA 1858 at [40]-[51] per Thawley J. There is nothing to say that because an allegation is recorded in an Interpol notice it is any more reliable, or any more likely to be the truth, than an allegation made by the national police service that generated the notice. 42 In enacting s 501(6)(h), Parliament must be taken to have known that there are different types of Interpol notices and that they might convey different information that may or may not be relevant to, or that may have different degrees of cogency in, an assessment of whether the person who is the subject of the notice would present a risk to the Australian community or a segment of that community. 43 It follows that the mere fact of an Interpol notice being in force cannot be sufficient, on its own, to lead to the inference reasonably being drawn. There must be something in the notice from which the relevant inference can reasonably be drawn. In the case of a conviction in another country of a serious crime, that on its own may be sufficient. But in the case of charges or an indictment against someone, that may not be sufficient. Each case will turn on its own facts and circumstances. 44 The Minister submits that an Interpol notice is not just any document containing unsupported allegations - it is official documentation requesting the location and arrest of someone for the purposes of prosecution. Whilst that is true, the fact of the allegations being officially made says nothing on its own about whether the allegations are credible. Aside from any other considerations, their credibility may depend on who makes them or the circumstances in which they are made. For example, someone facing political persecution in a foreign country might well be the subject of trumped up allegations of criminal conduct in an IRN as an element of that persecution. 45 As to how credible the allegations must be before the relevant inference can reasonably be drawn, account must also be taken of the meaning of the word "would" in paragraph (h). "Would" is used here as a modal auxiliary verb to the verb "present". "Might" could have been used. That the choice of "would" rather than "might" has some significance is suggested by the use of "might" in many sections of the Migration Act where "would" could otherwise have been used, e.g. ss 24, 116(1)(e), 129(1)(e), 134B(b), 140XG(1), 268BK(1), 268CL(2), 370(2), 371(3), 432(2), 433(3), 487C(1) and 503(3). 46 Particularly significant is s 116(1)(e) which includes this wording: "the Minister may cancel a visa if he or she is satisfied that … the presence of its holder in Australia is or may be, or would or might be, a risk to … the health, safety or good order of the Australian community or a segment of the Australian community." As with s 501(6)(h) read with s 501(1), this employs the language of the Minister being satisfied and the notion of risk to the Australian community. However, rather than requiring that the risk "would" be present, it covers the bases of "may be, or would or might be". 47 Similarly, s 134B(b) provides that the Minister must cancel a visa held by a person if an assessment by ASIO contains advice that ASIO suspects that the person "might be" a risk to security. 48 These contrasts drive one to the conclusion that "would" in s 501(6)(h) has the effect of requiring a higher probability than if "might" had been used. That is to say, from the Interpol notice it must be reasonable to infer that the person would present, not might present, a risk to the Australian community or a segment of that community. The use of "would" conveys that it is expected that the risk will materialise. That should be taken to mean more probable than not. Here, "risk" is used as a noun meaning "a thing regarded as a threat or source of danger": OED Online (Oxford University Press, March 2020). It is not an expression of possibility, as in "to present a risk of danger". 49 The result is that the information derived from the Interpol notice that is relied on by the Minister to conclude that a person does not pass the character test as expressed in s 501(6)(h) must be such as to allow the reasonable inference to be drawn that, if the person was granted a visa or if their visa was not cancelled, they probably would present a risk to the Australian community or a segment of that community. If the inference cannot reasonably be drawn, then the person passes the character test (see the words at the end of sub-s (6)). 50 In the present case, the Minister's conclusion that it was reasonable to infer that the applicant would present a risk to the Australian community was based on the following (with reference to paragraphs [20]-[21] of the Minister's reasons, quoted at [16]) above): (1) large amounts of money being involved in the allegations against the applicant and the seriousness of the alleged criminal conduct on the basis that fraud involving substantial quantities of funds is indicative of a level of sophistication in the criminal conduct; (2) a perpetrator of that type of sophisticated fraud has the capacity and may continue to have the motivation to repeat the conduct such that it cannot be said there is no risk of reoffending; (3) the applicant conceded that "he did take the money as a loan" which he did not repay as a consequence of which "it is therefore not without some substance that [the applicant] would be under suspicion of these charges" ; and (4) if found guilty he would be subject to a life sentence in the PRC (presumably indicating the seriousness of the crime). 51 The last sentence of paragraph [21] of the Minister's reasons - i.e. that it "is therefore not without some substance that [the applicant] should be under suspicion of these charges" - is to be understood to mean that because of the preceding matters, there is some substance to the charges. 52 On the basis of those factors, the Minister reached the conclusion expressed in paragraph [22] (also quoted at [16] above). That is to say, the Minister concluded on balance "that there is a serious and substantial issue to be addressed and, taken together with the possibility of reoffending, [the Minister inferred that the applicant] poses a risk to a segment of the Australian community." 53 In my view, the Minister's reasoning does not satisfy the statutory requirement. My reasons for that conclusion follow. 54 From what is stated in the IRN, it cannot reasonably be inferred that the applicant would present a risk to the Australian community, or a segment of that community. The IRN records no more than unproved allegations against the applicant and that he is wanted in the PRC for trial. There is nothing in the notice from which it can be inferred that there is a reasonable case to be made against the applicant, or even any evidence at all in support of the charges recorded in the notice. 55 Moreover, it is illogical and unreasonable to conclude on the basis of unsubstantiated allegations against someone that there is a risk of the person reoffending; until there is a reasonable basis to infer that the person offended in the first instance, there cannot be any reasonable basis to infer that they might reoffend. 56 In this instance, the Minister did not say anything about, for example, being able to rely on criminal allegations from the PRC as having credibility because of his knowledge or information provided to him of the working, credibility or reputation of the PRC criminal justice system. To the contrary, the Departmental officer's recommendation relies on country information to make a number of damning findings about that system. 57 That country information includes a United Kingdom Home Office Operational Guidance Note dated 1 January 2014 which in turn cites the United States Congressional-Executive Commission on China (CECC) 2013 Annual Report as stating that there is no presumption of innocence in the PRC and the criminal justice system is biased towards a presumption of guilt. It states further that according to the Supreme People's Court, in 2011 the combined conviction rate for first and second instance criminal trials was 99.9%. The CECC notes that most defendants in the PRC face significant bias in the criminal justice system and do not have adequate legal assistance. It states that one recent study found that approximately 95% of the criminal cases surveyed relied on defendant confessions and that the vast majority of defence efforts failed to challenge confessions. The country information also states that torture remains widespread in the PRC. The inescapable inference from the Departmental officer's recommendation is that torture is widely used in the PRC to obtain false confessions. 58 The Departmental officer's recommendation which sets out, and accepts, that damning information about the PRC criminal justice system does not appear to have been directly before the Minister - it is not one of the documents annexed to the Departmental submission which he signed indicating his agreement to the refusal of the applicant's visa. However, the submission includes the statement that the applicant is a person in respect of whom Australia has been found to owe protection obligations. That is a reference to the Departmental officer's recommendation. Thus, the author of the submission to the Minister had access to the recommendation, and certainly the recommendation and the country information documents referenced in it were in the Departmental files relating to the matter of the applicant's application for a protection visa which is the very matter in which the Minister's decision was made. 59 In Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24, Gibbs CJ, in dealing with a situation where the relevant Minister had made a decision requiring his satisfaction with regard to a particular state of affairs on the basis of a report presented to him by officials, stated (at 30-31) that the Minister cannot be expected to personally read all the relevant papers that relate to the matter. It would not be unreasonable for the Minister to rely on a summary of the relevant facts furnished by the officers of their Department. No complaint could be made if the departmental officers, in this summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to their attention a material fact which they are bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that they will have failed to take that material fact into account and will not have formed their satisfaction in accordance with the law. 60 Gibbs CJ went on to hold (at 31) that "the material in the possession of the Department must clearly be treated as being in the possession of the Minister." Although that case dealt with mandatory relevant considerations, which is not pertinent to the present consideration of the material in the possession of the Department that is relevant to the weight to be attached to what is stated in the Interpol notice, the finding with regard to material in the possession of the Department necessarily being treated as being in the possession of the Minister is equally applicable to the present case. 61 In the same case, Mason J stated (at 45) that it would be a strange result to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the decision, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. 62 Also in Peko-Wallsend, Brennan J (at 66) stated that a Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision. 63 Also pertinent to the point is DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCAFC 209 at [51]-[55] per Kenny, Moshinsky and Bromwich JJ, and the authorities there cited. It was held that where the Minister reaches a conclusion on the basis of Departmental advice given to him when the Department had in its possession in relation to the same matter information which shows that advice to be doubtful, then the Minister's acceptance of the advice cannot be protected by the fact that he did not personally have that information. 64 In the present case, it was accepted by the Minister that he could rely on the allegations in the IRN from the PRC as having some substance, whereas the Department had in its possession in relation to the same matter information which showed that advice to be doubtful. Given the information in the knowledge of the Department in the context of the same matter under consideration by the Minister, and thus constructively within the knowledge of the Minister, allegations as to criminal conduct emanating from the PRC police authorities could not reasonably be taken at face value. No reasonable inference could accordingly be drawn by the Minister as to the risk presented by the applicant simply from the IRN itself. 65 Insofar as matters outside the IRN are concerned, the Minister acknowledged that the allegations have not been proven, that the applicant maintained his innocence of the crime of which he is accused and that he had a clear police certificate from Australia. The only matter that the Minister apparently regarded as inculpatory is the fact that the applicant accepted that he had taken "the money as a loan" which he had not repaid (see [21] of the Minister's reasons quoted at [16] above). The applicant's acceptance of an unpaid debt was part of his explanation of his innocence and is at best neutral insofar as commission of the offence is concerned. The applicant did not accept that the money that is the subject of the charges in the IRN is the same money as the loan. 66 The applicant points to the fact that the companies that are identified in the IRN, as the borrowers and the lender, are different from the companies that the applicant refers to in his exculpatory statement in which he admits that there is a loan that he did not repay. On that basis the applicant submits that the acknowledgement of an unpaid loan cannot serve to support any of the allegations in the IRN. 67 The IRN identifies the lending company (A Co) and three borrowing companies (B Co, C Co and D Co) that were allegedly "used" by the applicant in collusion with three other people. However, the applicant's explanation of his financial circumstances says that the lending company was a bank (E Bank Co), although another bank (F Bank Co) is also mentioned. The applicant states that he was the borrower in order to fund the operations of two companies (G Co and H Co) which are different from any of the borrowing companies named in the IRN. The one company (H Co) would appear to possibly be the same as the company referred to in the IRN as the "secured party" as they have very similar although not identical names. (I have anonymised the companies in order to protect the applicant's identify.) 68 It is also to be noted that the Chinese court documents that were included in the documents furnished to the Minister, including a judgment against the applicant, reflect the applicant as borrower and the lender as yet another company (I Co). 69 The short point is that there is no apparent tie-up between the allegations in the IRN, on the one hand, and the applicant's explanation and what is revealed by the court documents provided by him, on the other. That serves to reinforce the point that the applicant's admission of an unpaid debt cannot logically serve to support the allegations in the IRN or the Minister's conclusion that there is "some substance" to the applicant being "under suspicion of these charges". 70 In the circumstances, the Minister could not reasonably have inferred from the IRN that the applicant would present a risk to the Australian community or a segment of that community, as required by s 501(6)(h). Ground 1 of the judicial review should accordingly be upheld. 71 To the same effect, it was legally unreasonable, in the sense discussed at [90]-[95] below, to conclude that the charges against the applicant are not without substance on the basis of the applicant having accepted that he had not repaid a loan when he was obliged to do so, in particular when there is no apparent connection between the events underlying the fraud charges and the loan in question (other than the applicant's explanation that the charges are trumped up at the instigation of someone involved in the circumstances of his failure to repay the loan). The conclusion lacks "an evident and intelligible justification"; there is "no logical connection between the evidence and the inferences or conclusions drawn". Ground 4(a) should accordingly succeed. 72 Also, it is similarly legally unreasonable to reach a conclusion as to the risk presented by the applicant on the basis of the possibility of him reoffending when there is not reasonable basis to draw the inference that he offended to begin with. Ground 4(d) should accordingly succeed. 73 On those bases I conclude that the Minister's decision is infected by jurisdictional error and falls to be set aside. 74 I am aware of the decision in Applicant M117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 where it was held by Kenny J (at [58]) that untested allegations of criminal conduct in an Interpol Red Notice emanating from China were sufficient basis for the Minister to cancel a visa on character grounds. There are, however, at least two material distinctions between that case and this. First, that case concerned a decision under s 501(3) where the Minister was required to form a "reasonable suspicion" that the applicant did not pass the character test. That is a far lower threshold than what I have concluded is required under s 501(1) read with s 501(6)(h). Secondly, the Minister also acted on other information that she had received relating to the applicant's character (see the judgment at [19]).

Ground 2: Failure to consider information in the possession of the Department 75 The applicant submits that the Minister was in breach of the requirements of procedural fairness or erred in the exercise of his jurisdiction in that he failed to consider material information that was constructively before him. The information in question is contained in the recommendation of the Departmental officer who recommended on 25 January 2019 that Australia has protection obligations towards the applicant under s 36(2)(aa) of the Migration Act (referred to at [9]-[10] above). The information in question concerns there being no presumption of innocence in the PRC legal system with 99.9% of the defendants in criminal proceedings being convicted, the widespread torture of suspects by police, and poor prison conditions. These facts are said to be relevant to the exercise of the Minister's discretion, and in particular with regard to the practical hardship that will face the applicant in the event of the refusal of his visa application. 76 In the context of ground 1, I have already considered this information insofar as it is relevant to the Minister's conclusion that the IRN is sufficient to ground a reasonable inference that the applicant would present risk to a segment of the Australian community. As will be seen, that is a quite different context to ground 2. 77 The applicant submits that the officer's report and recommendation had to be considered by the Minister, in the sense of directing an active intellectual process to it. The applicant relies on Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [46]-[47] and Tickner v Chapman [1995] FCA 987; 57 FCR 451 at 462 and 495. 78 Tickner v Chapman concerned what is required of a Minister when a statute requires that the Minister "consider" specified information before making a decision. The Minister was required to make the relevant decision personally. In that context, Black CJ (at 462) stated that "consideration of a document such as a representation or a submission … involves an active intellectual process directed at that representation or submission." 79 Kiefel J (at 495-496) stated the following: To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them. 80 This treatment of the obligation to personally "consider" the matter was taken up in Carrascalao (at [38]-[39]) in the context of a decision by the Minister under s 501(3) of the Migration Act. By s 501(4), such a decision may only be exercised by the Minister personally, although the language of "consider" is not used. Griffiths, White and Bromwich JJ (at [46]) took the view that the meaning of the word "consider" as set out in Tickner v Chapman and the requirement for a decision-maker to engage in an active intellectual process in giving consideration to the relevant matters or criteria should also be applied in the context of s 501(3). It was held that the ordinary meaning of the word "consider" requires the Minister to engage in an "active intellectual process" in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3). 81 It was further held (at [47]) that whether or not there was an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. 82 The error in the applicant's approach is not with regard to the nature of the task that was required to be undertaken by the Minister, but rather with regard to what was required to be the subject of that task. There is no reason why the report of the Departmental officer had to be considered by the Minister. Section 501(1) of the Migration Act confers a discretionary power on the Minister to refuse to grant to a person a visa if they do not satisfy the Minister that they pass the character test. That subsection does not expressly require any particular matters to be considered by the Minister other than that which is stated therein, i.e. whether or not they satisfy the Minister that they pass the character test. In the present case, that brings in the matters required to be considered under s 501(6)(h), i.e. whether there is in force an Interpol notice in relation to the person from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community. 83 The Minister accepts that, in exercising the power under s 501(1), he was required to afford the applicant procedural fairness. Procedural fairness in this context relevantly required the Minister to have regard to a "substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 at [24] per Gummow and Callinan JJ (Hayne J agreeing at [95]). In the context of the exercise of power under s 501(1), what must be "considered" by the Minister is any mandatory relevant consideration, in the sense described in Peko-Wallsend, and any claims, in the sense described in Dranichnikov, advanced by the applicant. 84 As the Minister correctly submits, the power in s 501(1) does not require, whether as an incident of the duty to afford natural justice or otherwise, consideration of all of the material in the Department's possession that could potentially be relevant to its exercise. 85 The applicant made no claim in his visa application or in subsequent correspondence and submissions that there is no presumption of innocence in the Chinese justice system, that 99.9% of defendants in criminal proceedings are convicted or that prison conditions are overcrowded and otherwise appalling. These are therefore not matters that the Minister was obliged to consider. 86 The remaining matter relied on by the applicant is that there is a widespread practice of police in the PRC to torture suspects to obtain confessions, and that the Departmental officer was satisfied that the applicant stood a substantial risk of being tortured. However, the Minister accepted that his Department had found that the applicant is a person in respect of whom Australia has non-refoulement obligations. That necessarily implies that the Minister accepted that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm (s 36(2)(aa)). Moreover, such harm could be arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment (s 36(2A)). 87 It thus adds nothing to the Minister's consideration of the applicant's circumstances, such as to enable the Minister to make a proper and lawful decision under s 501(1), to give character and texture to the particular nature of significant harm that the applicant is said to face in China, namely torture. 88 Review ground 2 must accordingly fail.

Ground 4: Legally unreasonable 89 On this ground, the applicant identifies four independent bases upon which it is said that the Minister's decision was legally unreasonable. I have already dealt with two of those in the context of ground 1. 90 Before addressing each of the remaining grounds, it is just as well to identify some applicable principles. 91 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Crennan and Bell JJ (at [135]) explained that "a decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn." 92 In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 it was held by Hayne, Kiefel and Bell JJ (at [67]) that the legal standard of reasonableness must be the standard indicated by the true construction of the statute as the question to which the standard of reasonableness is addressed is whether the statutory power has been abused; (at [68]) the legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - such that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified; and (at [76]) that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. 93 In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 it was observed by Allsop CJ, Robertson and Mortimer JJ (at [45]) that where the decision-maker gives reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergences, or the factors, in the reasons said to make the decision legally unreasonable. Whilst not deciding the point, it was suggested (at [47]) that where reasons are given the "intelligible justification" (identified in Li) must lie within the reasons the decision-making gave for the exercise of the power - at least, when a discretionary power is involved. 94 In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408, Gageler J (at [53]) explained that the requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power; the implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds. His Honour also observed that whatever room might remain for argument about the most appropriate expression of the standard of legal reasonableness, the nature of legal unreasonableness should be taken to be settled by the explanation of it in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36 per Brennan J, and (at [59]) that in the discernment of unreasonableness "there are no talismanic words that can avoid the process of judgment". 95 The explanation in Quin to which Gageler J referred (see [51]) was that "acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action" and that within the bounds of legal reasonableness the repository has genuine free discretion. 96 I now turn to each of the remaining independent bases relied upon by the applicant.

Ground 4(b): Community expectation 97 The applicant submits that the Minister's opinion that the Australian community would expect that the applicant would resolve the charges against him in China before his visa application was approved is legally unreasonable. This is with reference to paragraph [34] of the Minister's reasons (quoted at [18] above). 98 The basis for the applicant's submission is that resolution of the charges against him would necessarily require him to return to China, but the Departmental officer concluded that if the applicant was removed to China he would face significant harm there. That harm includes that he would be tortured there by the police in order to extract a confession and that country information indicates that 99.9% of those charged with criminal offences are convicted. It was thus legally unreasonable to conclude that the Australian community would expect the applicant to "clear his name" in the PRC before pursuing his protection visa application in Australia. 99 The applicant submits that it is patently absurd for the Minister to consider that members of the community, informed of the nature of the case and the evidence, would expect the applicant to resolve the criminal charges against him before his visa application is approved. He could not do that without returning to the PRC to face the charges and were he to do so he would, on the evidence, be almost certain to be convicted and face the very harm in respect of which the Departmental officer found that Australia owes him protection obligations. 100 The Minister responds to the submission by referring to Direction 79 which, as indicated, is a direction made under s 499 of the Migration Act. That section empowers the Minister to give directions to a person or body having functions or powers under the Migration Act with regard to the performance of those functions or the exercise of those powers. Direction 79 has the stated purpose of guiding decision-makers performing functions or exercising powers under s 501 to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under s 501CA of the Migration Act (para 6.1(4) of Direction 79). 101 The difficulty is that the Minister does not refer to Direction 79 in his reasons and he does not purport to apply it. Also, the parties were agreed that such a direction binds the Minister's delegates and other decision-makers under the Migration Act but it does not bind the Minister. See Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 at [76]. There is therefore little to be gained by referring to Direction 79 in seeking to justify the Minister's reasoning in this case. 102 With reference to FYBR v Minister for Home Affairs [2019] FCAFC 185; 374 ALR 601 at [62]-[79] and [87]-[106], the Minister submits that community expectations are not judged by reference to considerations which are subjective to a visa applicant, but rather are to be understood and applied normatively and judged by reference to the Government's views. That submission suffers from two defects. First, what was said in FYBR about community expectations was with regard to construing the predecessor to Direction 79, Direction 65, and was not said in abstract. As indicated, those directions simply do not apply to the Minister himself. 103 Secondly, and in any event, the Minister's reasoning on the point in question is that the community would expect that a person who is facing serious charges abroad would first resolve those charges before pursuing a protection visa application in Australia to finality. That is a normative principle, but its application to this particular case, and no doubt many others, is illogical, irrational, capricious and absurd for the very reasons identified by the applicant. The community could not reasonably, in the applicable sense, expect that someone must return to their home country to clear their name of charges against them where it is accepted that they cannot do so without suffering significant harm (in the sense defined in s 36(2A) of the Migration Act) before pursuing their protection visa application in respect of which it is accepted that Australia owes them non-refoulement obligations to protect them from that very harm. 104 In the circumstances, in my view the Minister's reasoning with regard to community expectations fails the test of legal reasonableness - it lacks any intelligible justification. However, that does not amount to jurisdictional error unless it is material in the sense that if the error was not made that could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] per Bell, Gageler and Keane JJ. 105 In my judgement, the error in this instance is not material. The critical part of the reasoning culminates in paragraph [22] where the Minister concluded that the applicant had not satisfied him that he passes the character test. Thereafter the Minister considered any discretionary factors to not deny the applicant a visa. If the error in question had not been made, that could not have served to cause the Minister not to refuse the visa. That is demonstrated in the concluding section of the reasoning, quoted at [20] above, where the Minister restates the conclusion with regard to the applicant failing the character test and then considers countervailing considerations. Had the Minister not made the error in question that could not have strengthened the countervailing considerations. 106 In the circumstances, I consider that this particular basis for the legal unreasonableness ground of review fails.

Ground 4(c): Section 195A 107 With reference to paragraphs [37]-[39] of the Minister's reasons (quoted at [19] above), the applicant submits that the Minister could not have reasonably reached a conclusion that he may decide to grant the applicant a visa pursuant to s 195A of the Migration Act in view of the reasons that the Minister gave for refusing the applicant's application for a protection visa. This ground relies on BAL19 v Minister for Home Affairs [2019] FCA 2189 at [42] per Rares J. 108 There his Honour reasoned that once the Minister personally refused to grant the applicant a protection visa on the basis that he was a risk to the Australian community or a segment of that community, knowing that Australia actually owed non-refoulement obligations in respect of the applicant, no reasonable occasion could arise for the Minister to exercise his non-compellable powers to allow the applicant to apply for another substantive visa, absent a substantial and indefinite period of further immigration detention in which a change would occur and, in fact, had occurred to the risk on which the Minister had acted. 109 The Minister submits that BAL19 is clearly wrong on this point and should not be followed. It is in any event currently subject to an appeal to the Full Court. 110 In view of my conclusion on grounds 1 and 4(a) and (d), it is not necessary for me to decide the point. In the circumstances of there being a pending appeal no useful purpose would be served by me doing so. Therefore, as requested by the parties, I decline to decide the case on this point. 111 It is to be noted that it was not contended in this case that s 501(1) of the Act does not apply to applications for protection visas as held in BAL19. Again, in view of my conclusion that the Minister's decision must be set aside on other grounds, it does not matter in this case whether BAL19 is upheld on this point and I am not called upon to decide whether the point should in any event be applied in the present case.

Conclusion 112 For the above reasons, the Minister's decision to refuse the applicant a protection visa under s 501(1) of the Migration Act, with reference to s 501(6)(h), falls to be set aside. There is no apparent basis why the Minister should not pay the applicant's costs. 113 As the applicant is currently in immigration detention, he also sought an order that he be immediately released from that detention. I have not heard the Minister on this aspect of the relief that is sought, but in any event the Minister would be expected to ensure the immediate release of the applicant if there is no other lawful basis to continue to hold him in detention. In those circumstances, the relief that the applicant seeks would not be necessary. 114 In case there is some need for the applicant to pursue this aspect of the relief that he seeks, I propose to make no decision on it and give the applicant leave to apply to have the matter listed again in the event that he wishes to pursue this aspect. I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.