FUD18 v Minister for Home Affairs

RELEVANT FACTS 6 The relevant facts were for the most part not contentious. They were comprehensively addressed by the primary judge (Judgment at [1]-[27]) and have been summarised by Lee and Wheelahan JJ in this proceeding. It suffices to note the following. 7 First, Mr H applied for the visa currently in issue on 20 April 2011. There followed a period of appalling inaction and obfuscation on the part of the Minister's department, now named the Department of Home Affairs. It would seem that officers of the Department who were assessing the visa application took the view that Mr H had satisfied all the criteria for the visa, but nevertheless made no decision concerning the application because they became aware of the existence of an Interpol red notice. The content of the Interpol notice will be considered in more detail later. It suffices at this point to note that the existence of the notice did not itself provide any basis for refusing Mr H's visa application, at least when Mr H first made it. Paragraph 501(6)(h) was only inserted into the Act in December 2014: see Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) s 2 and item 12 in Schedule 1. Nevertheless, the officers appear to have delayed making a decision in respect of the visa application because of an apparent concern about the impact that such a decision would have on Australia's relations with Vietnam. 8 That is not to say that the officers raised with Mr H any issue or concern arising from the Interpol notice. Indeed, for many years it seems they told him next to nothing. They initially simply referred to the need to conduct character checks. At one point in late 2011, Mr H was invited to comment on media reports that he was the subject of an arrest warrant. Mr H responded to that invitation. 9 It was not until June 2018 that Mr H was told that the roadblock in respect of the approval of his visa application was that there was an Interpol red notice in force in relation to him. That only occurred after Mr H, no doubt exasperated by the Department's obfuscation, filed an application in the Federal Circuit Court of Australia in May 2018 in which he sought an order compelling the Minister to decide his visa application. That proceeding was eventually dismissed by consent because, shortly after it was commenced, the Minister gave Mr H notice that he intended to consider refusing Mr H's visa application on the basis that he did not pass the character test. That was said to be because it was reasonable to infer from an Interpol notice in force in relation to Mr H that Mr H "would present a risk to the Australian community, or a segment of that community": s 501(6)(h) of the Act. 10 Even when Mr H was eventually told that the Minister intended to consider refusing his visa application on the basis of an inference that was said to flow from the Interpol notice, he was not given a copy of the Interpol notice or even told what was in it. It is unclear exactly how the Minister could possibly have thought that Mr H could meaningfully respond to the notice given to him about the Minister's intention to consider the refusal of his visa application in the absence of any information about the Interpol notice. The Minister eventually purported to advise Mr H of the content of the notice in September 2018. It turned out, however, that even then the Minister, unbeknownst to Mr H and his advisers, omitted some of the content of the Interpol notice. Exactly why is unclear. A complete copy of the text of the Interpol notice was not provided to Mr H until after the primary judge delivered his judgment in this matter. 11 Second, the only reason that has ever been given to Mr H for the potential refusal of his visa application is that the Minister considers, or may consider, that Mr H does not pass the character test in s 501(6) of the Act because it is said to be reasonable to infer from the Interpol notice that he would present a risk to the Australian community, or a part of it. That is effectively all Mr H has ever been told. There has been no real elaboration. 12 Third, the critical features of the relevant Interpol notice are as follows. 13 The Interpol notice was published on 11 March 2011, over 10 years ago. It is said to be based on an arrest warrant issued on 18 February 2011 by "the investigative security agency of Vietnam". The arrest warrant is not annexed to the Interpol notice and a copy of it has not been provided to Mr H. The charge against Mr H was said to be "deliberately acting against the State's regulations on economic management, causing serious consequences" contrary to Article 165 of the Criminal Code of Vietnam. The factual allegations said to support that charge were summarised as follows: SUMMARY OF THE FACTS OF THE CASE: VIETNAM, Hanoi, from 01 January 2005 to 28 July 2010: While being the financial Director of [X] Corporation, [the appellant] had activities violating the State's regulation on economic management. It caused serious consequence [sic] to his Corporation (State Company). After committing crime, he fled away [sic]. Consequently, [the appellant] is wanted by the Police of Vietnam for deliberately acting against the State's regulations on economic management, causing serious consequences (stipulated in Article 165 - Criminal Code of Vietnam). 14 The notice does not identify the relevant regulations against which Mr H was alleged to have acted, or how Mr H was alleged to have acted against those regulations, or the serious consequences that were said to have been caused by Mr H's actions. It is entirely devoid of any meaningful particulars of Mr H's alleged offending conduct. 15 Something more should also be said at this point about Interpol notices. In short, they are simply a means of communication and cooperation between police forces in member countries. 16 The International Criminal Police Organisation, or Interpol, is an inter-governmental organisation which facilitates cooperation between police forces in member countries by enabling them to share and access data. One of the ways it does that is by issuing notices. There are different types of colour-coded Interpol notices. 17 The relevant Interpol notice in respect of Mr H is an Interpol red notice. Interpol red notices may be issued where a police force in one country wants a person to be located and arrested for prosecution or to serve a sentence. The Interpol notice in force against Mr H relates to his arrest for prosecution, not for the purposes of serving a sentence. While an Interpol red notice will not be published unless it complies with Interpol's constitution, Interpol performs only a very limited role in reviewing the information provided by a police force when seeking a red notice on the basis of a warrant for the arrest of a person for prosecution. It does not interrogate the accuracy, reliability or credibility of the allegations that form the basis of the arrest warrant. There is, therefore, no reasonable basis upon which it could be inferred or concluded that allegations made by a police force which are the subject of an Interpol red notice are somehow rendered more credible or reliable by reason of their inclusion in the notice. They remain mere allegations. 18 Fourth, the Interpol notice which has been published in respect of Mr H noted that the country at the request of which the notice had been published, Vietnam, had "given assurances that extradition will be sought upon arrest" of Mr H and that the notice was to be "treated as a formal request for provisional arrest". In Australia, however, a person cannot be arrested for the purposes of extradition on the strength of an Interpol red notice alone. Rather, the requirements of the Extradition Act 1988 (Cth) must be met. There was no evidence before the primary judge to suggest that in the 10 years since the Interpol notice was published, Vietnam had taken any steps or made any formal request to have Mr H arrested in accordance with the Extradition Act. More will be said about that later. 19 Fifth, in October 2018, after finally being provided with information about the content of the Interpol red notice, Mr H's lawyers provided a detailed submission in response to the Minister's notice to Mr H that the Minister intended to consider refusing his visa application on the basis of the existence of the Interpol red notice. The submission included detailed arguments as to why the Minister could not or would not conclude that it was reasonable to infer from the Interpol notice that Mr H would present a risk to the Australian community, or a segment of it, as well as detailed arguments as to why the Minister should not refuse Mr H's visa in the exercise of his discretion in any event, even if it was concluded that he did not pass the character test. 20 The submission made on Mr H's behalf annexed a number of documents, including: a detailed statutory declaration of Mr H which, amongst other things, addressed what were said to be the politically motivated allegations which had been levelled against him; a statutory declaration of a former officer of the Department of Foreign Affairs and Trade (DFAT) who had knowledge and experience in relation to Vietnam and who expressed the view that the allegations against Mr H were likely to be politically motivated; a detailed "expert report" of a lawyer which addressed, amongst other things, the nature and character of Interpol red notices, the apparent factual background to the allegations against Mr H, sourced from apparently reputable publications, and the author's opinion both that the allegations against Mr H are politically motivated and that any attempt by Vietnam to extradite Mr H would most likely fail; "country information" which, it would be fair to say, did not paint a very positive picture of the independence or fairness of the police and criminal justice system in Vietnam; and other material relating to Mr H's good character and his personal circumstances in, and ties with, Australia. 21 Sixth, in March 2019, Mr H lodged a complaint in respect of the Interpol notice with the Commission for the Control of INTERPOL's Files. Mr H contended that the charge that the relevant agency in Vietnam was pursuing against him was politically motivated. Article 3 of Interpol's constitution forbids it from undertaking any intervention or activities of a political, military, religious or racial character. Mr H essentially complained that the red notice issued against him was contrary to Article 3 because it was politically motivated. The Commission concluded, however, that the information provided by Mr H was not sufficient to establish that the case against him was politically motivated. 22 Seventh, by letter dated 21 March 2019, the Minister's solicitor advised Mr H that Interpol had published what was said to be an addendum to the red notice. Mr H was not (and still has not been) given a copy of that addendum, but was told in the letter that the addendum stated that Mr H was "wanted by the judicial authorities in Vietnam, on the basis that he is the perpetrator of the crime of embezzling property". No further details were or have been provided in relation to that allegation. It is entirely unclear whether that allegation is related in any way to the charge in the arrest warrant and Interpol notice or is a separate allegation. If it is a separate allegation, no particulars whatsoever of that allegation are given. It is, however, reasonable to infer that the addendum was largely a product of Mr H's attempt to have Interpol withdraw or delete the red notice. 23 Eighth, on 1 June 2020, after the primary judge delivered the judgment under appeal, an officer of the Department sent Mr H a letter which was said to provide Mr H with "further information" concerning the "possible" refusal of his visa application on character grounds. The letter referred to the notice previously given to Mr H in July 2018 relating to the Minister's intention to consider cancelling his visa application on the basis that he did not pass the character test by virtue of s 501(6)(h) of the Act. This time, however, the letter enclosed an actual copy of the Interpol red notice. As noted earlier, the terms of the notice revealed that what the Minister had told Mr H about the content of the red notice back in September 2018 was not entirely complete or accurate. No explanation has been forthcoming as to why certain parts of the notice were not included in the earlier information provided to Mr H concerning the content of the notice. 24 The officer's letter of 1 June 2020 also appeared to proceed on the basis of an erroneous assumption that the mere existence of the Interpol red notice suggested that Mr H did not pass the character test by virtue of s 501(6)(h) of the Act. The letter and its attachments also indicated that the other information which the decision-maker might consider included "findings or remarks" in the judgment of the primary judge, Interpol's "rules on the processing of data" and the "reasons and findings of Interpol (by the Commission) to not remove the [red notice] in force" against Mr H.

RELIEF SHOULD BE REFUSED ON DISCRETIONARY GROUNDS 25 I agree with Lee and Wheelahan JJ that the relief sought by Mr H in this appeal should be refused on discretionary grounds. 26 The primary judge dismissed Mr H's application on the basis that Mr H had not established that it would not be open to the Minister to conclude that it was reasonable to infer from the relevant Interpol notice that Mr H would present a risk to the Australian community, or a segment of it. In my view, the primary judge should, in any event, have refused the relief sought by Mr H on discretionary grounds, though it does not appear that the Minister submitted as such. 27 The relief sought by Mr H before the primary judge included writs of prohibition and mandamus, as well as declaratory relief: see Judgment at [28]. 28 The writ of prohibition sought by Mr H was directed at restraining the Minister from refusing Mr H's visa application on the basis of the notice sent to Mr H in July 2018. That was the notice that advised Mr H that the Minister intended to consider refusing Mr H's visa application because he did not pass the character test by reason of s 501(6)(h) of the Act - that it was reasonable to infer from an Interpol notice that was in force in relation to Mr H that Mr H would present a risk to the Australian community, or a segment of it. 29 The writ of mandamus was directed at compelling the Minister to determine Mr H's visa application, though it would appear that Mr H indicated to the primary judge that he would not seek the issue of that writ unless the writ of prohibition was also issued: see Judgment at [29]. 30 The relevant declaration sought by Mr H was to the effect that it was not reasonable to infer from the Interpol notice that he would present a risk to the Australian community, or a segment of it. The other declaration sought by Mr H is not relevant to the appeal. 31 Mr H's amended notice of appeal sought essentially the same relief in the event that the appeal was allowed, though the writ of prohibition was worded slightly differently. The writ of prohibition sought on appeal was to the effect that the Minister be restrained from refusing Mr H's visa application on the basis that he "does not pass the character test under s 501 of the Migration Act 1958 because it is inferred for the purpose of s 501(6)(h) from the Interpol Red Notice 2011/13450 (including its addendum) issued in respect of [Mr H] that he would present a risk to the Australian community or a segment of that community".

Prohibition 32 There is no doubt that the issue of a writ of prohibition to restrain a decision-maker from proceeding to make a decision is discretionary. That was authoritatively determined by the High Court in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57. Mr H did not submit otherwise. Mr H submitted, however, that where the grounds for prohibition to issue have been established, the writ issues "almost as of right". Mr H relied on three paragraphs from the judgment of Gaudron and Gummow JJ in Aala, [43], [50] and [51], in support of that proposition. In fact, the statement of principle that was approved by Gaudron and Gummow JJ at [51] was the following statement of Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 (at 194): If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. 33 Gleeson CJ (at [5]) agreed with Gaudron and Gummow JJ in respect of the discretionary nature of prohibition and Kirby J (at [149]) also approved the statement of principle of Gibbs CJ in Ross-Jones. 34 There is no fixed list of circumstances in which the Court may refuse relief in the exercise of its discretion. Relevantly, however, the Court may decline to grant relief in the exercise of its discretion if a "more convenient and satisfactory remedy exists" or "no useful result could ensue": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, referred to with approval by Gaudron and Gummow JJ in Aala at [56]. Similarly, the Court may decline to intervene on the basis that the decision-maker may make a decision which would render academic the question whether a writ of prohibition should issue: R v Federal Court of Australia; Ex parte The Western Australian National Football League Inc (1979) 143 CLR 190 at 216. 35 This is a case where the primary judge should have refused to issue a writ of prohibition on discretionary grounds, even if the grounds for the issue of the writ may otherwise have been made out. It would equally be appropriate to refuse to issue the writ of prohibition sought by Mr H as a remedy on appeal even if it be found that the primary judge erred in concluding that Mr H had not demonstrated a ground for the issue of such a writ. That is so for a number of reasons. 36 First, it is by no means clear that the Minister will refuse Mr H's visa application. While there has been a lamentable and inexcusable delay in determining the application, at this point at least, the Minister has simply flagged an intention to consider refusing Mr H's visa on the basis that he may not satisfy the character test by reason of s 501(6)(h) of the Act. It is by no means certain that the Minister will refuse Mr H's visa application. 37 The Minister may ultimately determine that it is not reasonable to infer from the Interpol notice that Mr H would present a risk to the Australian community or a segment of that community if he was granted a visa. The Minister may be swayed by the submission made on Mr H's behalf in that regard. The Minister may equally be swayed by the evidence, in the form of statutory declarations, an expert report, and copies of country information that have been provided by Mr H in support of those submissions. Indeed, as discussed later, there are compelling reasons why, if careful attention is given to all relevant information and evidence, it would not be reasonable to draw that inference. 38 Equally, even if the Minister was not satisfied that Mr H passed the character test, he might nevertheless find that there are sound discretionary reasons why he should not refuse to grant Mr H a visa. The Minister may again be swayed by the submissions and material provided by Mr H in respect of that issue. 39 Either way, a decision by the Minister not to refuse Mr H's visa application would render academic the question whether a writ of prohibition should issue at this stage. Perhaps another way of putting this is that it cannot be said with any certainty at this stage that the Minister will, in fact, make the decision which Mr H contends would be legally unreasonable. There is therefore no immediate threat, or no strong probability, of any jurisdictional error. In those circumstances it is difficult to see why a writ of prohibition should issue. 40 Second, the basis upon which Mr H sought a writ of prohibition assumed, or was premised on the fact, that any decision by the Minister to refuse Mr H's visa would be based only on the information in the notice of intention to consider refusing the visa application which was sent to Mr H in July 2018. The relevant information in that notice was simply that Mr H might not pass the character test by virtue of s 501(6)(h) of the Act because an Interpol notice was in force in relation to him. No other information was specifically referred to. As noted earlier, however, in June 2020, following the judgment of the primary judge, the Department advised Mr H by letter that the decision-maker may also have regard to the judgment of the primary judge, the "Interpol rules" and the Commission's decision "to not remove" the Interpol red notice. 41 The difficulty for Mr H is that, as discussed in more detail later in the context of the construction issue, in determining whether it is reasonable to infer from the Interpol red notice that Mr H would present a risk to the Australian community or a segment of it, the Minister is not restricted to considering the information within the four corners of the Interpol notice itself. The Minister is permitted to have regard to other information that may bear on what inferences are available from the Interpol notice and its contents, in particular information which puts the issuing of the Interpol notice and the facts or allegations contained within it in context. That information would include, for example, information about Interpol's rules and practices and procedures, country information about the integrity and independence of Vietnam's police and criminal justice system and submissions and information provided by Mr H in respect of the notice and the allegations referred to in it. The Minister may also request further information from Mr H and other sources about those and other matters relevant to the inferences able to be drawn from the red notice and its contents. The critical point is that it is unclear, at this juncture, exactly what information the Minister might ultimately possess and have regard to when it actually comes to make the decision in respect of Mr H's visa application. 42 It must be said that the conduct of the responsible Ministers and the Department to date in respect of the consideration of Mr H's visa application does not instil great confidence that the Minister will endeavour to obtain, or will have regard to, any information beyond that to which the Minister has had regard thus far. Prior to the judgment of the primary judge, the correspondence that Mr H had received from the Minister or the Department suggested that the Minister proposed to do little more than rely on the content of the Interpol notice. Even following the primary judge's judgment, the information that the Department had indicated the decision-maker would or might have regard to was very narrow in compass. 43 As Mr H submitted, the history of the Department's consideration of Mr H's visa application spans some 10 years. It would perhaps be reasonable to infer in all the circumstances that the Minster is unlikely to attempt to obtain or have regard to any further information. Mr H went so far as to submit that it "is improbable that anything could change the unlawfulness of the Minister's [approach to the] decision". Mr H's scepticism and pessimism in that regard are perhaps understandable given the history of the matter. 44 The fact remains, however, that it is not known exactly what evidence or information will be before the Minister, or will be considered by the Minister, in determining what is reasonable to infer from the Interpol red notice. Despite Mr H's justifiable scepticism, it is, in those circumstances, difficult to conclude that any decision made by the Minister will necessarily be beyond jurisdiction because it could not reasonably be inferred from the Interpol red notice, having regard to all the available relevant or circumstantial information and evidence concerning the notice and its contents, that Mr H would present a risk to the Australian community or a segment of it. The availability of that conclusion will depend on the nature and extent of the additional information and evidence. 45 Third, even if the Minister does in due course conclude that it is reasonable to infer from the Interpol red notice that Mr H would present a risk to the Australian community or a segment of it and accordingly does not pass the character test and the Minister decides to exercise the discretion to refuse Mr H's visa application on that basis, Mr H nevertheless has a process or remedy available to him if he can demonstrate that the Minister's decision was beyond jurisdiction. He can seek relief in this Court pursuant to s 476A of the Act, including relief in the nature of a writ of certiorari setting aside the decision on the basis of jurisdictional error. In reviewing a decision actually made by the Minister, the Court would have available to it the Minister's reasons and a clear indication of the evidence and other material that was before the Minister and was considered and not considered, as the case may be, by the Minister in making the decision. 46 The availability of that process and potential remedy in respect of any adverse decision that may be made by the Minister strongly militates against the grant of relief in the nature of a writ of prohibition in respect of a possible or even likely decision by the Minister. While it seems somewhat ironic to say so, given the lamentable 10-year history of the Department's and the Minister's dealings in respect of Mr H's visa application, Mr H's attempt to prevent the Minister from making an adverse decision against him based on s 501(6)(h) of the Act is premature. 47 It does not appear that the Minister submitted to the primary judge that Mr H's application for a writ of prohibition should be refused on discretionary grounds. Nevertheless, Mr H sought effectively the same relief on appeal, though the terms of the proposed writ of prohibition differed slightly. That relief should be refused on discretionary grounds for the reasons given.

Declaratory relief and mandamus 48 Mr H also sought relief in the nature of a declaration and a writ mandamus. 49 The declaratory relief should be refused for the same discretionary reasons as those given in relation to the writ of prohibition. 50 The main difficulty with the declaration sought by Mr H is that the question whether it is or is not reasonable to infer from the relevant Interpol red notice that Mr H would present a risk to the Australian community or a segment of it will depend on all the available information and evidence that may bear on the inferences able to be drawn from the notice. As has already been noted, in determining whether it is reasonable to draw the relevant inference, the Minister is not confined to information within the four corners of the Interpol notice in question. The Minister may have regard to circumstantial or contextual evidence that bears on the inferences able to be drawn. To give but one example, the Minister could plainly have regard to any reliable country information concerning the integrity and independence (or lack thereof) of the police force and criminal justice system in Vietnam. The problem is that, at this stage at least, the precise nature and scope of the material that the Minister may ultimately have regard to in determining what, if any, inference is available from the Interpol notice, is not known. 51 As for the writ of mandamus, the main problem for Mr H is that he effectively did not press for that relief before the primary judge. Rather, he indicated that he would only seek the issue of that writ if the primary judge issued the writ of prohibition which he sought. On appeal, however, Mr H sought to press his claim for a writ of mandamus on the basis of an argument that was not put to the primary judge. He should not be permitted to do so. 52 In any event, there is no sound basis for the issue of a writ of mandamus. While the delay in the past has been lamentable, there was no evidence to suggest that the Minister was likely to delay the making of a decision in Mr H's case once this appeal is determined.

THE CONSTRUCTION ISSUE 53 It is strictly unnecessary to consider the other issues that were raised by the appeal given the finding that the appeal should be dismissed because the relief sought should be, and should have been, refused on discretionary grounds. It is, however, desirable and of some utility to address those issues, particularly since there is at least some prospect that Mr H will commence further proceedings in this Court should the Minister ultimately refuse his visa application. 54 One of the main issues that was ventilated in the parties' submissions on appeal was the proper construction of s 501(6)(h) of the Act. The construction issue arose because the primary judge's conclusion concerning the proper construction of s 501(6)(h) differed in some respects from the findings made by Stewart J in ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 569. The judgment in that matter was handed down shortly after the primary judge handed down his judgment, though it does not appear that Stewart J's attention was drawn to the judgment of the primary judge. 55 Subsection 501(1) of the Act provides that 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". The "character test", for the purposes of s 501(1), is effectively defined in s 501(6), which provides a long list of circumstances in which a person does not pass the character test. As has already been made clear, one of those circumstances is the circumstance in s 501(6)(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". 56 The primary judge made the following points concerning s 501(6)(h) of the Act. First, read with s 501(1), s 501(6)(h) "directs attention to whether it is reasonable to infer from an Interpol Notice that, if the visa were not refused the person would present a risk": Judgment at [43]. Second, "the question whether a person would present a risk necessarily allows consideration of possibilities because it involves a consideration of what might or might not occur in the future": Judgment at [44]. Third, "the provision is not framed in terms of an inquiry into the probabilities of a person doing some specific act" and "[a]ll other things being equal, it is more difficult to reach a conclusion that a particular risk will eventuate than that a risk is present": Judgment at [45]. Fourth, in contrast to s 501(6)(d) and (g), "the provision does not identify any specific area or topic of risk" and "the area of risk … is unconfined by the express words of the provision": Judgment at [46]-[48]. 57 The construction of s 501(6)(h) of the Act favoured by Stewart J in ERY19 differed from primary judge's construction in two potentially important respects. First, his Honour noted that, unlike a number of other sections in the Act, s 501(6)(h) employed the word "would", as opposed to "might". The word "would" required a "higher probability" than the word "might" and conveyed that "it is expected that the risk will materialise" (emphasis in original): ERY19 at [48]. Second, Stewart J considered that the word "risk" is used in s 501(6)(h) "as a noun meaning 'a thing regarded as a threat or source of danger'" and was "not an expression of possibility, as in 'to present a risk of danger'": ERY19 at [48]. His Honour then concluded as follows (at [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)). 58 Perhaps not surprisingly, Mr H contended that Stewart J's construction of s 501(6)(h) in ERY19 should be preferred to the construction arrived at by the primary judge. In Mr H's submission, the word "risk" in s 501(6)(h) means "threat or source of danger" and the expression "would present a risk" means "would probably present a threat or danger to the community". It followed, so Mr H submitted, that the primary judge erred in finding that s 501(6)(h) allows for the consideration of "possibilities" (Judgment at [44]) and that this error infected his Honour's reasoning and conclusion. 59 Equally unsurprisingly, the Minister embraced the primary judge's construction of s 501(6)(h) and submitted that Stewart J's construction in ERY19 was wrong. In the Minister's submission, Stewart J's construction was not supported by the text, statutory context or purpose of s 501(6)(h) of the Act and that, in finding that the use of the word "would" indicated that it was "more probable than not" that the person presented a threat or source of danger, his Honour set that test "too high". 60 The question of construction is by no means straightforward. Subsection 501(6) contains a mishmash of objective facts and subjective circumstances that, if found to exist, mean that a person does not pass the character test. The distinction between the rival interpretations of s 501(6)(h) by the primary judge and Stewart J is fairly fine. There are reasonable arguments in support of each of the interpretations. While I do not necessarily embrace all of what Stewart J said about s 501(6)(h), on balance I would incline towards the construction arrived at by Stewart J. It follows that there is some merit in Mr H's submission that elements of the primary judge's reasoning and conclusions were premised on an incorrect reading and interpretation of s 501(6)(h) of the Act. 61 Before addressing the proper construction of s 501(6)(h), I should perhaps note that the judgment of Stewart J in ERY19 was the subject of an appeal by the Minister. That appeal was dismissed. The Full Court's judgment in that appeal was handed down on the same day as the judgment in this matter. My reasons in respect of the construction issue in this matter are essentially the same as my reasons in respect of the construction issue in the appeal in ERY19. My reasons are included in both judgments for ease of reference. 62 Turning then to the construction issue, it now effectively goes without saying that, when it comes to construing a statutory provision, the starting point is the text of the relevant provision, though the text must be considered in its statutory context and having regard to the provision's apparent purpose: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]; s 15AA of the Acts Interpretation Act 1901 (Cth). Taking that approach, the following points emerge. 63 First, with the possible exception of the reference to an "Interpol notice", the text of s 501(6)(h) of the Act uses words and phrases which are ordinary English words and phrases which should be given their ordinary meaning. 64 Second, the word which has mainly given rise to the rival or conflicting constructions of s 501(6)(h) of the Act is the word "risk". The difficulty is that, like many words, the word "risk" may have different meanings depending on the context in which it is used. To give but one example of a dictionary definition, the Shorter Oxford English Dictionary (fifth edition, 2002, Oxford University Press) defines the meaning of "risk", when used as a noun, as including: "[d]anger; (exposure to) the possibility of loss, injury, or other adverse circumstance"; "[a] chance or possibility of danger, commercial loss, or other risk"; and "[a] person considered a liability or danger; a person exposed to risk". The current online version of the Oxford English Dictionary similarly includes the following two meanings of the noun "risk": first, "([e]xposure to) the possibility of loss, injury or other adverse or unwelcome circumstance" (first meaning); and second, "[a] person or thing regarded as likely to produce a good or bad outcome in a particular respect", or "[a] person or thing regarded as a threat or source of danger" (second meaning). 65 It is apparent that the primary judge considered that the word "risk" when used in s 501(6)(h) had the first meaning, whereas Stewart J in ERY19 (at [48]) considered that "risk" in s 501(6)(h) had the second meaning. The distinction between these different meanings of "risk" is in some respects quite fine, but it is potentially important. The first of the two meanings essentially directs attention to whether there is a possibility or probability of some event happening in the future; or, as the primary judge put it (at [44]), "allows consideration of possibilities because it involves a consideration of what might or might not occur in the future". The second meaning is directed to the character of a person; whether they are a threat or source of danger, or at least a person likely to produce a bad outcome. 66 Third, there are some textual and contextual considerations which would suggest that the word "risk" in s 501(6)(h) bears the second of the two meanings - the meaning essentially adopted or accepted by the Stewart J - that the relevant person (the visa applicant) was a threat or source of danger to the Australian community. 67 One contextual consideration is that, if "risk" was to bear the first meaning - "(exposure to) the possibility of loss, injury or other adverse circumstance" - it might reasonably be expected that the nature of the possible loss, injury or adverse circumstance would be identified in the provision. As the primary judge acknowledged, however, s 501(6)(h) does not identify any specific act that might occur in the future. 68 That may be contrasted with the use of the word "risk" in s 501(6)(d) of the Act. The test in s 501(6)(d) is that "in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would" engage in certain types of conduct, including "engage in criminal conduct in Australia", or "harass, molest, intimidate or stalk another person in Australia", or "vilify a segment of the Australian community" et cetera. As can be seen, the word "risk" in the context of s 501(6)(d) clearly bears the first of the two meanings of "risk" referred to earlier; the possibility or probability of something occurring in the future. The risk is that the person would or might do one or more of the identified acts in s 501(6)(d) in the future. 69 Paragraph 501(6)(h) was inserted in the Act after s 501(6)(d) of the Act. If the word "risk" in s 501(6)(h) means, in effect, the possibility that the person might do something in the future which is harmful to the Australian community, it is difficult to see how it adds at all to what is already in s 501(6)(d) of the Act. The drafter, it seems, deliberately chose to frame s 501(6)(h) in quite different terms, presumably so that it had some separate operation or application to s 501(6)(d). The test in s 501(6)(h) is not that there is a risk that the person would engage in certain conduct in the future, but that the person "would present a risk". The words "would" and "risk" in the two subparagraphs are inverted: "a risk that the person would" in s 501(6)(d) and "would present a risk" in s 501(6)(h). That suggests that the word "risk" in s 501(6)(h) is used to denote "danger", or to focus on an assessment of the character of the person; that the person is a threat or source of danger. Construing s 501(6)(h) in that way gives it some separate work to do. 70 These textual and contextual considerations suggest that the "test" in s 501(6)(h) is whether it is reasonable to infer from an Interpol Notice that, if the visa applicant is granted a visa and thereby permitted to enter or remain in Australia, he or she would present a risk, in the sense of a danger or threat, to the Australian community or a segment of it. That is, the test is directed to determining whether the visa applicant is a particular type of person (a danger or threat to the community), as opposed to determining whether there is a risk, in the sense of possibility or probability, that the visa applicant would or might engage in some unspecified harmful conduct if granted a visa. 71 Fourth, s 501(6)(h) must of course be considered in the context of s 501 as a whole, and in particular s 501(1). Subsection 501(1) of the Act gives the Minister a discretion to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test. In many cases, the enlivenment of that significant discretion may have serious implications for a visa applicant. One can readily see a proper basis for enlivening the discretion where it is reasonable to infer, relevantly from an extant Interpol notice in relation to a visa applicant, that the visa applicant would present a danger to the Australian community or a segment of it. It is, in contrast, more difficult to see a basis for enlivening the jurisdiction simply on the basis that it is reasonable to infer that there is a possibility that the person might engage in some unspecified conduct that might expose the Australian community, or a segment of it, to some unspecified loss, injury or adverse consequence. 72 As I have said, the distinction between the competing interpretations of s 501(6)(h) is in some respects a fine distinction. To say that a person would be a threat or danger to the Australian community in some respects involves an assessment of the probability that they may engage in some harmful conduct in the future. The difference, it seems to me, reduces to one of probabilities. Construing s 501(6)(h) as requiring a reasonable inference that the person would present a threat or danger to the Australian community would tend to require a higher degree of satisfaction that the person would be likely to engage in harmful conduct than if it were construed as simply requiring a reasonable inference that there is a risk, in the sense of possibility, that the person would engage in some unspecified conduct in the future. 73 As fine as the distinction may be, the upshot of my consideration of s 501(6)(h) of the Act is that there is some merit in Mr H's contention that the primary judge's construction of s 501(6)(h) was erroneous. In particular, in my view his Honour erred in finding the expression (at [44]) "would present a risk" allows for the "consideration of possibilities because it involves a consideration of what might or might not occur in the future". That sets the bar too low. There is also some merit in Mr H's contention that the primary judge's erroneous construction of s 501(6)(h) of the Act materially infected his Honour's reasoning and conclusion that Mr H had not discharged his onus of establishing that any finding by the Minister that it was reasonable to infer from the Interpol red notice that Mr H would present a risk to the Australian community or a segment of it would be legally unreasonable and involve jurisdictional error. 74 There are two other issues concerning the proper construction of s 501(6)(h) of the Act that arose in this appeal. The first, to which some reference has already been made, is whether the relevant inference, for the purposes of s 501(6)(h), must be drawn from the existence and terms of the relevant Interpol notice alone, or whether it is permissible for the decision-maker to have regard to other information and material. The second is whether the test in s 501(6) is an objective test. 75 The submissions of Mr H and the Minister in respect of the first of those two issues progressively converged to the point where there ultimately appeared to be very little in dispute. 76 It may readily be accepted that s 501(6)(h) of the Act requires that the inference that the person "would present a risk to the Australian community or a segment of that community" must be drawn from the Interpol notice which is in force in relation to the person and not from any extraneous facts or circumstances. It follows that in considering whether the inference is reasonably available, regard cannot be had to facts and circumstances that do not bear at all on the relevant Interpol notice or the allegations contained within it. For example, regard could not be had to an entirely separate or independent allegation against the visa applicant, or entirely separate or independent facts or circumstances relating to that person. 77 It is, however, permissible for the decision-maker to have regard to facts and circumstances that bear in some material way on the inferences able to be drawn from the existence of the Interpol notice and the allegations referred to in it. Were it otherwise, there would be little point in the Minister inviting a visa applicant to comment on the Minister's intention to consider refusing the visa application on the basis that the visa applicant did not pass the character test in s 501(6)(h) of the Act. This ultimately appeared to be common ground. Mr H submitted, for example, that other material could be considered "to inform the use that is to be made of the information contained in the notice, by confirming or denying, or bearing upon the credibility or reliability of, that information". The Minister similarly submitted that other "evidence could be considered which informed whether the matters referred to in the notice, or giving context to it being in force" would allow the relevant inference to be reasonably drawn. 78 It was also ultimately common ground between the Minister and Mr H that, in determining whether it was reasonable to infer from the Interpol red notice in force against Mr H that he would present a risk to the Australian community, it was open to have regard to Interpol's rules and regulations concerning the issuing of red notices, the Commission's decision that the red notice issued in respect of Mr H complied with Interpol's rules, the addendum to the red notice and, perhaps most significantly, the evidence or information supplied by Mr H in response to the Minister's notice of intention to consider refusing Mr H's visa. The evidence or information supplied by Mr H included information that was capable of casting doubt on the independence and objectivity of the police and criminal justice system in Vietnam. It was therefore, to use the Minister's formulation, evidence which "informed whether the matters referred to in the notice, or giving context to it being in force" would allow the inference to be reasonably drawn. 79 The second issue is whether the test in s 501(6)(h) is a subjective or objective test. The issue is of some considerable importance as because it would bear significantly on the basis upon which a finding by the Minister that s 501(6)(h) was enlivened could be challenged in judicial review proceedings. 80 I agree with Lee and Wheelahan JJ that the better view is that the test posed by s 501(6)(h) is objective. 81 Some of the paragraphs in s 501(6) obviously involve objective facts. The clearest example is s 501(6)(a), which is that the person has a substantial criminal record as defined in s 501(7) of the Act. A person either does, or does not, have a substantial criminal record. Other paragraphs of s 501(6) that clearly involve objective facts include (aa), (ab), (e), (f) and (g). Other paragraphs in s 501(6) clearly involve the Minister's subjective assessment as to the facts. The clearest examples are s 501(6)(b) and (ba), which provide that a person does not pass the character test if "the Minister reasonably suspects" something about the person; that they are a member of a particular type of group, or that they have been involved in certain types of conduct. 82 Paragraph (h) of s 501(6) is different to most of the other paragraphs in s 501(6) of the Act. That is because it involves or poses the question whether it is reasonable to infer a particular fact. That question is not, however, posed in terms of whether the Minister has drawn that inference, or whether the Minister is satisfied that it is reasonable to infer the relevant fact. 83 Mr H submitted that the test in s 501(6)(h) is objective because the inference drawn from the Interpol notice is required to be "reasonable". In Mr H's submission, that means that the relevant facts or circumstances must be such that a reasonable person would infer from the Interpol notice that the person would be a risk to the Australian community. The Minister submitted that the test was subjective. That was essentially said to be because s 501(6)(h), read with s 501(1), involved an evaluative exercise because the Minister had to determine whether it was reasonable to draw the required inference. It was submitted, however, that the Minister did not himself (or herself, as the case may be) have to draw the inference. 84 It is obviously correct that, as the relevant decision-maker, the Minister must in the first instance determine whether it is reasonable to draw the required inference. That, however, does not mean that the test in s 501(6)(h) is subjective. The same can be said in relation to other paragraphs of s 501(6) that plainly involve objective facts. If, for example, it is said that a person does not pass s 501(1)(a) because the person has a substantial criminal record, the Minister must evaluate the facts and decide whether the person does or does not have a substantial criminal record. That does not make the test in s 501(1)(a) subjective. A person either does, or does not, have a substantial criminal record. 85 The same can be said of s 501(6)(h). The requirement that the relevant inference to be drawn from the existence of an Interpol notice must be "reasonable" injects an element of objectivity into the test. It either is, or is not, reasonable to infer from the Interpol notice that the person would present a risk to the Australian community or a segment of it. The existence of the extant Interpol notice, considered in the light of, or in the context of, all of the relevant surrounding facts and circumstances, must be capable of satisfying a reasonable person, or inducing a reasonable person to conclude, that the person in question would be a risk to the Australian community, or a segment of it: cf Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200; [2021] HCA 1 at [36]; George v Rockett (1990) 170 CLR 104 at 113, 115. The inference is either reasonable in that respect, or it is not. Of course, the question whether the inference is reasonable in that respect may be difficult and minds may differ in relation to the answer. That does not, however, mean that the test is subjective. 86 It would follow that, in a judicial review challenge to a decision by the Minister to refuse a visa application as a result of a finding that the visa applicant did not pass the character test in s 501(6)(h) of the Act, it would be open to the applicant to contend that the material before the Minister concerning the relevant Interpol notice was not capable of satisfying a reasonable person, or inducing a reasonable person to conclude, that the applicant would be a risk to the Australian community, or a segment of it. That is, the position is no different to the position that would exist if the visa refusal was premised on a finding that the visa applicant did not pass the character test in s 501(6)(a). There could be no doubt that in such a case it would be open to the applicant to contend that it was not open to the Minister to conclude that the applicant had a substantial criminal record. 87 There are some indications that the primary judge did not construe s 501(6)(h) as involving an objective test as just described. Rather, the primary judge appears to have approached the question raised by Mr H's application as being whether any decision by the Minister that Mr H did not pass the test in s 501(6)(h) would necessarily be unreasonable in the legal sense: Judgment at [52] and [56]. That may, however, have been a product of the fact that Mr H's application involved a pre-emptive strike in respect of a possible decision by the Minister and the fact that the main arguments advanced by Mr H centred on legal unreasonableness. It also does not appear that the question whether s 501(6)(h) involved an objective or subjective test was squarely raised before the primary judge, though his Honour did observe that "[w]hat inferences should be drawn is a matter for the Minister": Judgment at [62]. Nor is it an issue squarely raised by Mr H's grounds of appeal. It is, in all the circumstances, unnecessary to make any conclusive finding concerning this issue, particularly given the finding that the appeal must be dismissed on discretionary grounds in any event.

A REASONABLE INFERENCE? 88 It is neither necessary nor desirable to finally or conclusively determine whether it would be reasonable to infer from the Interpol red notice which remains in force in relation to Mr H that he would present a risk to the Australian community or a segment of that community. It is not necessary because the appeal should in any event be dismissed on discretionary grounds. It is not desirable because the Minister has not decided (and may never decide) that it would be reasonable to draw that inference. There are therefore no reasons from the Minister in respect of that issue and, most importantly, it is not known exactly what evidence, information or other materials might ultimately be before the Minister if and when he comes to decide this question. 89 That said, it would be somewhat remiss of me not to make the following points which tend to suggest that it would not be reasonable to draw the required inference from the Interpol notice, at least on the basis of the evidence as it presently stands. 90 First, the charge against Mr H as recorded in the Interpol notice is expressed in very general terms and is devoid of any meaningful particulars. The charge is: "deliberately acting against the State's regulations on economic management, causing serious consequences". There are no details concerning the relevant regulations and no details of the "serious consequences". 91 Second, the summary of the facts in the Interpol notice do not advance things greatly. Indeed, they provide virtually no further details. The only additional detail is that the alleged offence was committed "from 01 January 2005 to 28 July 2010" and that the serious consequences are alleged to have been to "his Corporation", that is Mr H's corporation, which is said to be a "State Company". 92 Third, nor does the addendum assist. Indeed, the addendum is at best ambiguous and confusing. It is entirely unclear whether the allegation of embezzling property referred to in the addendum somehow relates to the charge referred to in the Interpol red notice, or whether it is a separate allegation. If it relates to the existing charge, it really adds nothing. If it is a separate allegation, it is unclear whether it is the subject of a separate arrest warrant. The allegation is also entirely devoid of any particulars. 93 Fourth, the charge identified in the red notice should be approached on the basis that it is, at this stage, no more than an allegation by the relevant investigatory agency in Vietnam. Article 2(1) of the Constitution of Interpol stipulates its aim is "[t]o ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the 'Universal Declaration of Human Rights'" (UDHR). Interpol's website states that a person who is the subject of a red notice based on an arrest warrant is entitled to the presumption of innocence: see UDHR Article 11(1). 94 Fifth, the arrest warrant is said to have been issued in Vietnam on 18 February 2011 and the Interpol notice was issued, apparently on the strength of the arrest warrant, on 11 March 2011. It is also abundantly clear that the Vietnamese authorities and Interpol have been aware that Mr H has been residing in Australia. Australia is the only country listed in the Interpol notice as a country likely to be visited by Mr H. Yet, despite the fact that the warrant and Interpol notice have been in force for over 10 years and despite the fact that the authorities have known that Mr H has been in Australia during those 10 years, no attempt whatsoever has been made by the Vietnamese authorities to have Mr H arrested by the police in Australia for the purposes of extradition. That is the apparent purpose for which the Interpol notice was issued, yet nothing has been done in that regard. 95 Sixth, the inactivity by the Vietnamese authorities in terms of seeking to have Mr H arrested and extradited must be considered in light of the fact that Mr H contends that the charge against him is politically motivated and that there is at least some evidence which might tend to support that claim. That evidence includes independent country information which, at the very least, is capable of casting some doubt on the objectivity and independence of the police and criminal justice system in Vietnam. 96 It is both unnecessary and undesirable for present purposes to refer to the evidence concerning those matters. For the most part it is included in the material provided to the Minister on Mr H's behalf following the June 2020 notice from Minister which advised Mr H that the Minister intended to consider refusing Mr H's visa application on the basis of s 501(6)(h) of the Act. It suffices to note that a report from DFAT noted that the police in Vietnam are controlled by the Ministry of Public Security and operate with significant discretion and little transparency and that the courts at all levels in Vietnam are controlled by the Communist Party of Vietnam. It of course should be noted in this context that the Commission found that it was not satisfied that the charge against Mr H was politically motivated. While the result of that finding was that the Interpol notice remains on foot, the Commission's finding could not reasonably be regarded as being determinative of the issue whether the charges are in fact politically motivated. 97 The point is that it may well be open to infer that Vietnam's inactivity over the last 10 years, in terms of seeking the arrest and prosecution of Mr H, reflects the fact that the Vietnamese authorities recognise that the charge against Mr H may not withstand the judicial scrutiny in Australia that would inevitably result if Mr H was arrested and an extradition request was made. That may be because Mr H's claim that the charge is politically motivated has substance, or it may simply be because the Vietnamese authorities recognise that there are other issues or problems concerning the allegations. Indeed, in the absence of any further evidence or information, it is difficult to draw any other inference. 98 Sixth, another point that flows from the fact that over 10 years has passed since the offence referred to in the Interpol notice was allegedly committed by Mr H is that there is no evidence or information to suggest that Mr H has engaged in any unlawful or harmful conduct during that period. Indeed, such evidence as there is suggests quite to the contrary. Mr H has lived a blameless life in Australia during that period. This consideration alone significantly detracts from the availability of an inference that, if granted a visa, Mr H would present a risk to the Australian community. One might reasonably expect that if Mr H was in fact a risk to the Australian community, that risk would somehow have manifested itself during the 10-year period that Mr H has resided in Australia with his family. It has not. 99 Seventh, even putting to one side the age and somewhat dubious nature of the charge and the arrest warrant that provides the basis for the Interpol notice, the inference to be drawn from the allegation made against Mr H by the Vietnamese authorities is in any event fairly weak. The offence allegedly committed by Mr H in Vietnam arose from his occupation of a senior position in a Vietnamese state-owned corporation. The allegation is, in essence, that he somehow abused that position. The reality is that Mr H is unlikely to ever occupy a similar position in Australia. Even if there is some substance in the allegations against him, those allegations provide a fairly flimsy basis for inferring that he is likely to engage in, or be in a position to engage in, similar conduct in Australia in the future. 100 The last correspondence the Department sent to Mr H tended to suggest that the Minister, or the Department, was taking a narrow and most likely erroneous approach in considering whether it is reasonable to infer from the Interpol notice that is in force against Mr H that he would present a risk to the Australian community or a segment of it. The correspondence tended to suggest that the Minister or the Department considered that the existence of the Interpol notice itself was sufficient to found the inference and that the decision-maker would only have regard to limited information: the notice, Interpol's rules, the Commission's decision and the judgment of the primary judge. In my view, the Minister should be under no illusion that if that approach is persisted with it may well be productive of jurisdictional error.

CONCLUSION AND DISPOSITION 101 The appeal should be dismissed for the reasons given earlier. The relief sought by Mr H, in particular the writ of prohibition, should be refused in the exercise of the Court's discretion. 102 Mr H should pay the Minister's costs of the appeal. I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

A Introduction and Background 103 This is an appeal from orders made by a judge of this Court declining to make an order restraining the Minister for Home Affairs (Minister) from refusing to grant the appellant a Return (Residence) (Class BB) Five Year Resident Return (subclass 155 visa) (subclass 155 visa) and a declaration that it is not reasonable to infer from an Interpol Red Notice (IRN) issued in relation to him that he would present a risk to the Australian community or a segment of it on the basis of character grounds pursuant to s 501(6)(h) of the Migration Act 1958 (Cth) (Act): FUD18 v Minister for Home Affairs [2020] FCA 48; (2020) 168 ALD 474 (primary judgment or J). 104 This judgment is being delivered contemporaneously with Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133 (ERY19 Appeal), which concerned similar issues. Where relevant, reference is made to parts of that judgment to avoid repetition. 105 The facts underlying the dispute are detailed comprehensively by the primary judge (at J [1]-[27]). The appellant largely agreed with that summary, but noted some additional points of factual significance. Combining these two sources, the narrative can be summarised as follows: (1) The appellant is a Vietnamese citizen. In September 2000, the appellant's wife was granted a subclass 126 Independent visa by the Australian Embassy in Ho Chi Minh City. The appellant and his daughters were granted the same visas as members of the family unit. They came to Australia shortly thereafter and the appellant's wife and two daughters remained in Australia until they were granted Australian citizenship in September 2004. The appellant did not become an Australian citizen and spent the majority of his time in Vietnam where he was a senior executive of a large State-owned corporation. The appellant's subclass 126 Independent visa expired in September 2005. (2) In July 2010, the appellant returned to Australia on a subclass 456 Business (Short Stay) visa and has lived permanently in Australia with his family since that time. In August 2010, the appellant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) visa (Partner visas) and was granted a Bridging A visa on the basis of that application. (3) In February 2011, the Investigative Security Agency of Vietnam issued an arrest warrant for the appellant and in March 2011, an IRN was published in relation to the appellant (although this was not brought to the appellant's attention until much later). (4) In April 2011, the appellant lodged an application for a subclass 155 visa; the criteria for which the appellant contended are "not demanding". It appears that the Minister's department (Department) had, from the day that the appellant applied for the visa, assessed him as satisfying those criteria. This is evident by what appears to be the decision-maker's notes which record: "I am satisfied to grant RRV to the client based on personal ties". Despite this, inaction prevailed. (5) The evidence reveals that within weeks of the decision-maker's note, the Department was alive to the IRN (although it should be noted that the existence of the IRN at this time did not itself provide any basis for refusing the appellant's visa application, because 501(6)(h) was only inserted into the Act in December 2014). (6) Between 2011 and 2016, the appellant's solicitor followed up the Department to seek an outcome on the visa application. The Department continually responded that it was waiting for an assessment by the character section or that the decision was in progress. It appears that a real issue of concern from the outset was the potential impact of granting the visa on Australia's bilateral relationship with Vietnam. (7) In May 2018, seven years on, the appellant filed an application in the Federal Circuit Court of Australia seeking to compel the Minister to make a decision in relation to his visa application. (8) In June 2018, a delegate of the Minister notified the appellant of his decision to refuse the application for the Partner visas. Relatively contemporaneously, the delegate of the Minister wrote to the appellant advising him that the Minister intended to consider refusing to grant the subclass 155 visa on the basis that he "may not pass the character test by virtue of s 501(6)(h) of the [Act]". (9) In July 2018, the Federal Circuit Court made consent orders dismissing the application which had been filed in that Court, given that the utility of those proceedings had ended. (10) Also in July 2018, there was an exchange of emails between the appellant's solicitor and a delegate of the Minister, in which the appellant's solicitor contended that s 501(6)(h) could not be made out given the Minister had not provided the IRN to the appellant. This resulted in the Minister re-issuing the notice, notifying the appellant that, among other things, he was subject "to an active [IRN] which remains in effect" and inviting him to comment on any factors he believed to be relevant to whether he passed the character test. Once again, however, the IRN was not provided to the appellant (the Department claiming its contents were protected under s 503A of the Act). (1) In August 2018, the appellant wrote to the Department seeking further information in respect of the IRN, advised that he intended to challenge the IRN and submitted that it would be appropriate for the Department to give an undertaking that it would not make a decision until after a decision had been made as to whether or not to remove the IRN. The appellant subsequently commenced these proceedings. (2) In September 2018, a copy of the IRN was provided to the appellant and the appellant was invited to provide further information to the Department. (3) In October 2018, the appellant provided further information to the Department, including, among other things: (a) submissions which included a contention that the charges made against him in Vietnam were politically motivated, supported by an "expert report" of a lawyer; (b) statutory declarations prepared by the appellant's family and friends addressing the appellant's character; (c) documents relating to the appellant's life, family and religious activities in Australia; and (d) various items of country information, including concerning the connexion between the communist party and judiciary in Vietnam. (4) This proceeding was listed for hearing before the primary judge on 9 April 2019, however, was adjourned pending the outcome of a request lodged by the appellant seeking to have the IRN "deleted" by Interpol. (5) In March 2019, the Minister's solicitor advised the appellant that Interpol had published an "addendum" to the IRN on 8 August 2012 (Addendum). The appellant was not (and still has not been) given a copy of that Addendum, but was told that it "arises from new information supplied by [the] National Central Bureau of Hanoi" and stated the appellant, among other thigs, was "wanted by the judicial authorities in Vietnam, on the basis that he is the perpetrator of the crime of embezzling property". (6) The request for deletion was finalised by Interpol in July 2019 and reasons were provided (Interpol Decision), but was unsuccessful, and the IRN remains in force.

B PROCEDURAL MATTERS 106 It is necessary to note three further procedural developments which occurred at the commencement of the appeal. First, without objection, leave was granted for the appellant to rely on an amended notice of appeal. 107 Secondly, the Court granted leave for the appellant to adduce a further version of the IRN that was provided to him by the Minister in the period between the primary judge's delivery of judgment and the appeal. It is unnecessary to detail at any length the procedural history leading to the different notices being disclosed by the Department to the appellant. In summary, as explained above, the Department claimed initially that although it could disclose the existence of the IRN to the appellant, its contents were protected from disclosure pursuant to s 503A of the Act. The Department later confirmed that permission had been granted to disclose the contents of the IRN in full and, as noted above, in September 2018, a copy was provided to the appellant. The appellant was subsequently assured that the entirety of the IRN has been disclosed. 108 As it transpired, this was not the case, and in the period between the primary judge's delivery of judgment and the appeal it became apparent to the Department that there were some differences in the IRN provided to the appellant and that which it presumably held in its records. The substantive differences (excluding capitalisation) are marked-up in red below: 109 The appellant argued that these differences are material in the sense that they could have affected the primary judge's decision. Counsel for the Minister said that this submission took the Minister by surprise, and sought an adjournment to call evidence as to the previous failure to provide the full IRN, despite the Department reassuring the appellant that the IRN in its entirety had been disclosed. 110 In the end, and despite this being a somewhat surprising turn of events which has not been explained, this issue of the IRN turned out to be somewhat of a tempest in a teacup. When it became apparent that the primary judge had proceeded on a false premise, the bench asked the appellant whether he proposed to amend his notice of appeal to seek an order that the judgment be set aside on the basis that the primary judge proceeded on an error of fact. The appellant assured the Court "that there [would not] be an application to amend the amended notice of appeal" and accepted that reliance on the revised IRN was to apprise the Court of its contents and bolster the contention that it was not reasonably open for the Minister to draw an inference in accordance with s 501(6)(h): T44.42-3. With this position clarified, the Minister was content to proceed. 111 Thirdly, the Court was apprised of the fact that the Minister had given an undertaking not to make an adverse decision until at least 28 days after the delivery of judgment by the Full Court. A similar undertaking was also given in relation to the proceeding below.

C The proceeding before the primary judge 112 Relevantly, before the primary judge, the appellant sought a writ of prohibition restraining the Minister from refusing his application for a subclass 155 visa and a declaration that it is not reasonable to infer from the IRN that the appellant would present a risk to the Australian community or a segment of it. In support of this relief, the appellant contended that a decision to refuse his visa application on the basis of s 501(6)(h) would necessarily involve jurisdictional error or would be legally unreasonable. 113 In addressing these contentions, the primary judge engaged with the following issues: (1) the proper construction of s 501(6)(h) and whether, from the IRN itself, the appellant had discharged the onus of establishing that it was not legally open for the Minister to draw an inference in accordance with the section; and (2) whether, in drawing the inference, the Minister was confined to the IRN itself and those things it was conceded could be considered. 114 In respect of these two issues, his Honour found: (1) after making various observations in relation to the construction of s 501(6)(h) (J [42]-[48]), the appellant had not discharged the onus of establishing that it was not legally possible to conclude from the IRN that the appellant would present a risk to the Australian community or a segment of it (J [49]-[63]); and (2) although not strictly necessary to decide, his "tentative" view (J [65]) was that s 501(6)(h) did not prohibit consideration of "facts extraneous to the notice" (J [75]), including the Interpol Decision, in drawing the requisite inference, because the inference need not be drawn "only" from the notice (J [77]). 115 For completeness, we note that a mandamus was also sought below requiring the Minister to determine the appellant's visa application, supported by a ground of review which asserted that the Minister had refused or unreasonably delayed making a determination. The appellant, understandably, did not press for a mandamus in the absence of prohibition: J [88]. While not strictly necessary to determine, his Honour expressed the view that since the institution of the Federal Circuit Court proceeding in May 2018, and in light of the fact that the appellant sought for the Minister not to make a decision under s 501(1), "it cannot be said that the Minister has unreasonably delayed by not making a decision": J [93].

D The appeal 116 Five grounds of appeal were advanced by the appellant, largely mirroring those grounds advanced below. They can be summarised by reference to the following three propositions: (1) the primary judge misconstrued and misapplied the statutory test for the drawing of a reasonable inference under s 501(6)(h) of the Act (Construction Ground); (2) the primary judge erred in finding that the appellant failed to establish that it was not legally possible to conclude from the IRN that he would present a risk to the Australian community or a segment of it (Unreasonableness Ground); and (3) the primary judge erred in finding that the condition in s 501(6)(h) of the Act could be satisfied if an inference that the person the subject of an IRN would present a risk to the Australian community or a segment of it was reasonably to be drawn from the IRN together with facts extraneous to the notice (Extraneous Material Ground). 117 Added to these grounds of appeal is, in our view, a determinative issue relating to the relief sought on the current appeal; namely, whether the Court should exercise its discretion to grant relief when a decision of the Minister to grant or refuse the appellant's visa application has not yet been made. Given its importance, we propose to deal with the issue of discretion first and then turn briefly to consider each of the grounds of appeal.

E Discretion 118 By his amended notice of appeal, among other things, the appellant seeks the following relief: 4. A writ of prohibition issue restraining the [Minister] from refusing the Appellant's Application for [a] Return (Residents) (Class BB) Five Year Resident Return (Sub-Class 155) Visa (Visa application) on the basis that the Appellant does not pass the character test under s 501 of the Migration Act 1958 because it is inferred for the purpose of s 501(6)(h) from the Interpol Red Notice 2011/13450 (including its addendum) issued in respect of the Appellant that he would present a risk to the Australian community or a segment of that community. 5. A declaration pursuant to s 21 of the Federal Court of Australia Act 1976 [(Cth)] that it is not reasonable to infer from Interpol Red Notice 2011/13450 (including its addendum) that the Appellant would present a risk to the Australian community or a segment of that community. 6. A writ of Mandamus requiring the [Minister] by himself or a delegate determine the visa application. 119 It is convenient to deal with the orders for prohibition and a declaration first, before turning to consider whether a mandamus should issue.

Prohibition and Declaration 120 What is significant is that, unlike in ERY19, the appellant is not challenging any decision of the Minister to refuse the grant of a visa, but is seeking to prevent, in the future, the Minister from refusing to grant him a visa on the basis that he does not pass the character test by reason of s 501(6)(h). The Minister made the submission that it is not known what further information may be received and relied upon in relation to the appellant's visa application, making it difficult to sustain an argument that, even if the Court were satisfied now that the appellant passes the character test, there is no basis upon which it could, in the future, reasonably be concluded that the appellant fails the character test by reason of s 501(6)(h).

Legal principles 121 It is trite to observe that the jurisdiction of this Court to issue prerogative writs contained in s 75(v) of the Constitution is discretionary: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (at 101-9 [43]-[60] per Gaudron and Gummow JJ, with whom Gleeson CJ agreed at 89 [5]; see also 137 [149] per Kirby J). In the exercise of discretion, a Court may decline to grant relief if a more convenient and satisfactory remedy exists or no useful result could ensue: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 (at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ). As Justice Gibbs (as his Honour then was) observed in R v Federal Court of Australia; Ex parte Western Australia National Football League Inc (1979) 143 CLR 190 (at 216): [P]rohibition is discretionary (at least where lack of jurisdiction is not patent) and in some cases it would be convenient to defer the hearing of an application for prohibition until further proceedings had been taken in the tribunal against which prohibition was sought. This might be because a decision in favour of one party would render academic the question whether prohibition should be granted, or because it would assist [the High Court] in discharging its ultimate responsibility if evidence were taken in the tribunal below. Those examples are not intended to be exclusive. See also the remarks of Barwick CJ (at 206-7) and Mason J (as his Honour then was) (at 230-1). 122 The prohibition sought in this case is "anticipatory" or "pre-emptive" in nature as the proposed order precedes a determination by the Minister to either grant or refuse the appellant a visa. The fact that the relief sought by the appellant is pre-emptive in nature goes to the Court's discretion to grant the relief: see Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) (at 484-50 [12.60]). Indeed, the authorities suggest that when an order in the nature of prohibition is sought in relation to future conduct, there must be more than a risk of procedural unfairness; there must be a strong probability that procedural unfairness will result: see Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420 (at 450-1 [131]-[133] per McColl JA and at 451-2 [137]-[145] per Sackville AJA, with whom Meagher JA agreed at 451 [135]). While the Court in Lewis was talking in terms of quia timet relief, both McColl and Sackville JJA drew on the law in relation to prohibition as analogous. 123 For example, in R v Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 (at 117-8), Dixon CJ, Williams, Webb and Fullager JJ said that a writ of prohibition would not issue to restrain the holding of an inquiry into an employer's registration "unless and until it appears … that there can be no basis for the exercise of the power conferred by [the statute] or that an erroneous test of liability of the employer to the cancellation of his registration will be applied or that some abuse of authority is likely" (emphasis added).

The appellant's submissions 124 The appellant advanced a number of submissions on the issue of prematurity, which can be summarised as follows. 125 First, that the writ of prohibition sought is limited to restraining the Minister from refusing the appellant's visa application on one basis only: that the appellant does not pass the character test by virtue of s 501(6)(h) because it is to be inferred from the specific IRN before the Court that he "would present a risk to the Australian community or a section of that community". It was said that a writ issued in such terms would not restrain the Minister from refusing the visa application on any other basis and that the possibility of other grounds for refusing the appellant's visa may come to light between the date of judgment and the time the Minister makes a determination cannot stand in the way of prohibition issuing if the appellant's claim for relief is otherwise made out. 126 Secondly, it was said that the Court should infer that it is presently in as good a position as it will ever be in to determine the legality of the threatened visa cancellation. Reference was made to the fact that the history of decision-making spans some ten years and that it is improbable anything could change the unlawfulness of the Minister's decision between the date of judgment and the date of determination of the visa application. The appellant submitted that there was no further step he could take through Interpol and it is implausible that any other step would be taken to alter the position under s 501(6)(h). 127 Thirdly, in any event, it was said that where the grounds for prohibition to issue have been established, the writ issues "almost as of right": citing R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 (at 194 per Gibbs CJ), cited in Aala (at 106 [51] per Gaudron and Gummow JJ). The appellant also contended that he is "a party aggrieved" because if the Minister's decision is to be made beyond jurisdiction, the effect would be that the appellant (who holds a bridging visa) would be placed in immigration detention until he succeeds in obtaining final relief setting aside the decision, without any discretion conferred on the Minister to release him from detention; a result said to follow from the operation of ss 501E, 501F and 189 of the Act.

Consideration 128 We have reached the conclusion that a writ of prohibition should be refused in the exercise of the Court's discretion for the following reasons. 129 First, it is presently unclear what information will be before the Minister at the time when he comes to make his decision, and moreover, what that decision will be. Given this Court's findings (expanded upon below) that the Minister is not restricted to considering the information within the four corners of the IRN, it may be the case that the material before the Minister morphs between now and when the decision is ultimately made. We appreciate that the process has dragged on for an inexplicable period of ten years and that the material before the decision-maker is highly unlikely to change, but we cannot be satisfied that any decision would be legally unreasonable when the material upon which the decision is to be made could possibly change. Further, it may be the case that when the Minister comes to determine the appellant's visa application, he concludes that it is not reasonable to infer from the notice that the appellant poses a risk to the Australian community or a segment of it, or chooses not to exercise the discretion in s 501(1) to refuse the visa. Such a decision would render academic the question of whether a writ of prohibition should issue. 130 Secondly, as explained above, the Minister has not yet exercised the power to refuse the appellant's visa pursuant to s 501(1) and there is no indication that procedural unfairness will result in allowing the usual decision-making process to run its course. Indeed, s 501(1) is not a provision of the Act which provides that the rules of natural justice do not apply: cf, for example, s 501(3). As McColl JA observed in Lewis (at 451 [133]), where the decision-making process, viewed in its entirety, entails procedural fairness, this is a cogent reason to be taken into account in the exercise of discretion. 131 Thirdly, the appellant's reliance on Gibbs CJ's remarks in Ross-Jones that prohibition issues "almost as of right" must be viewed in context. The entirety of his Honour's remarks in Ross-Jones (at 194) reveal that a discretion is always retained in respect of whether to grant a writ: If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. On the other hand, if the want or excess of jurisdiction is not clearly established, prohibition will be refused. (Emphasis added). 132 Fourthly, no detailed submissions were provided in support of how the relevant provisions of the Act operate to place the appellant in immigration detention in the event his visa is refused, with no discretion conferred on the Minister to release him. But even if that is the case, while one may sympathise with the situation of the appellant in the event he is detained, it is less than satisfactory for this Court to start issuing constitutional writs before the administrative decision-making process has run its course. As is implicitly conceded in the appellant's submissions, he will have the right to merits and judicial review of the Minister's decision, once that decision has been made. 133 Therefore, although not dealt with by the primary judge, relief in the nature of prohibition should be refused in the exercise of the Court's discretion. Further, in relation to the declaration sought by appellant, to the extent that the declaration is sought in support of orders for prohibition, the reasons for refusing prohibition are reasons that are equally applicable to refusing the declaration.

Mandamus 134 While a mandamus was not sought in the absence of prohibition below, it appeared to be pressed on appeal, regardless of whether prohibition issued. The Minister contended that a mandamus ought not to issue, given the possibility that some development may occur between the Court delivering judgment and the Minister deciding the appellant's visa application which might alter the proposed basis for the decision. 135 Given the argument run on appeal in relation to a mandamus was somewhat novel, and does not appear to have been argued before the primary judge, it is necessary to set it out in some detail. In saying this, the fact that this argument was not put to the primary judge is, in itself, a compelling reason for its rejection.

Appellant's submissions 136 The appellant submitted that any reliance by the Minister on the potential of circumstances changing between the delivery of judgment and the Minister making a decision, is without substance. It was said that a writ of mandamus would simply require a decision to be made (according to law) pursuant to s 65 of the Act, not that a particular decision be made. On this basis, it was said the Minister may decide (assuming it be lawful) to grant or refuse the appellant's visa application in complying with the writ, including by reference to any developments that occur between the Court delivering judgment and the Minister deciding the application. 137 Further, it was said that if a writ of mandamus issues, the effect will be as set out by the High Court in Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; (2015) 255 CLR 231. In that case, in response to a writ of mandamus, the Minister made a return to the writ certifying that he had done what was commanded of him by the writ. The plaintiff challenged the return, alleged that the Minister had not done what was commanded of him, and further sought compliance with the writ the Court ordered to issue by having the Court issue a peremptory mandamus. The Court held that while the Minister was entitled to identify a reason for refusing the visa application in complying with the writ (including a new reason for refusal), in circumstances where the Minister's return was legally insufficient, the Minister was not to be given "a further opportunity to identify some reason for not granting the plaintiff the visa which is sought" in complying with the peremptory mandamus: see 248 [40]-[41] per French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ. 138 Applying this analysis to the present circumstances, it was said that if a writ of mandamus were to issue, the Minister would have the opportunity to comply with the writ and determine the visa application, following which the Minister would make a return to the writ certifying he had done what was commanded of him. It was said that the reasoning of the High Court in Plaintiff S297/2013 also demonstrates that it is open to the Minister in considering and determining the appellant's visa application in accordance with a writ of mandamus, to refuse the application on a previously unidentified basis. If the Minister decides to refuse the visa application, the appellant might challenge the return of the writ, and seek to enforce compliance with the writ by having the Court issue a peremptory mandamus. Accordingly, it was said that there is nothing in the Minister's submission to the Court that the writ should not issue on the basis that new information may be obtained following judgment and prior to the determination of the visa application. However, if, in doing so, the Minister's determination is legally insufficient, the Minister will not be given any further opportunity to identify a new reason for refusing the appellant's application.

Consideration 139 As noted above, the grant of a mandamus, like all constitutional writs, is discretionary. 140 In the present case, it appears, put bluntly, that a writ of mandamus is sought on appeal as some sort of hedging strategy. That is, if a mandamus issues and the Minister exercises his discretion to refuse the visa, but then that determination is found to be "legally insufficient", the appellant can turn round and rely upon Plaintiff S297/2013 to essentially say: "times up, you have had your chance and your decision was legally insufficient and the Court must now grant the visa". It is an interesting and somewhat inventive argument, but in all the circumstances we do not think a mandamus should issue. 141 While it cannot be denied that there was a gross period of delay between the date the visa was lodged and the time when action was taken by the Minister after the institution of proceedings in the Federal Circuit Court, the response of the Minister since has not been tardy. Indeed, since this time, and not intending to be critical, it is the appellant's steps of trying everything he can to obtain a favourable result which have left the visa application in a stasis. As the primary judge observed (at J[93]), "in circumstances where the [appellant] has at all material times since the [notices from the Minister] sought for the Minister not to make a decision under s 501(1) on the basis of the [IRN], it cannot be said that the Minister has unreasonably delayed by not making a decision". The appellant has also, at all material times, secured an undertaking to the same effect. 142 In all the circumstances, a writ of mandamus should be refused.

F THE GROUNDS OF APPEAL 143 Given our conclusions in relation to discretion, it is strictly unnecessary to engage with the other issues raised by the appeal. However, given the amount of time dedicated to the Construction Ground and the Unreasonableness Ground in written and oral submissions, it is appropriate that a few observations be made.

F.1 Construction Ground 144 The Construction Ground can be dealt with briefly. 145 We have considered the proper construction of s 501(6)(h) in ERY19 Appeal (at [61]-[105]), including finding that the primary judge's conclusion that the prospective use of the word "would" in the phrase "would present a risk" leaves the word "risk" to require no more than a possibility of harm, is, with respect, preferable. Further, while strictly unnecessary to decide for reasons explained in ERY19 Appeal, the better view is that s 501(6)(h) poses an objective question; the consequence being that any inference drawn by the Minister must be based on the existence of facts which are sufficient to induce that state of mind in a reasonable person: cf J [52] and [62].

F.2 Unreasonableness Ground 146 In addressing the Unreasonableness Ground, it is useful to commence by summarising the relevant reasoning of the primary judge. 147 In framing the relevant inquiry, the primary judge found that the question was not whether the Court would draw the inference referred in s 501(6)(h) from the IRN, but whether the appellant had discharged his onus of establishing that it was not legally open for the Minister to draw such an inference: see J [52]. His Honour noted in this respect that the Minister's decision-making is occurring in an administrative rather than judicial context and the Minister is not bound by the rules of evidence such as those which operate in court proceedings to restrict the admissibility of evidence or the manner in which evidence or material might be used. His Honour then referred (at J [55]) to various aspects of Interpol's Rules which might be considered by a decision-maker in deciding whether an inference should be drawn from an Interpol notice. 148 The primary judge concluded that the appellant had not discharged the onus of establishing that it was not legally possible to conclude "from" the IRN that the appellant "would present a risk to the Australian community or a segment of it": [56]. In coming to this conclusion, his Honour made the following remarks (at [57]-[61]): 57. The IRN states the applicant is "wanted by the Police of Vietnam" and that Interpol had acted upon an "Arrest Warrant" in issuing the notice. The IRN refers to "deliberately acting against the State's regulations on economic management, causing serious consequences" and expressly refers to "Article 165 - Criminal Code of Vietnam". The IRN refers to a maximum penalty of 20 years imprisonment. 58. The addendum to the IRN recorded that the applicant was wanted by the judicial authorities in Vietnam on the basis that he was the perpetrator of the crime of embezzling property. The applicant submitted that it could not reasonably be inferred that the addendum was describing the same impugned conduct as that the subject of the IRN. I reject that submission. Such an inference is available from the fact that the addendum is an addendum to the IRN, rather than a new notice relating to some different allegation. The inference is also available from the content of the IRN and addendum. The applicant did not explain how an addendum to a red notice could be issued in relation to conduct different to the conduct the subject of a red notice consistently with the regulatory regime for issuing red notices. 59. Inferences can properly be drawn from the fact that a law enforcement agency in Vietnam had issued an arrest warrant relating to a crime which carried a potential term of imprisonment of 20 years, including as to the likelihood of the existence of material sufficient to permit the issue of an arrest warrant. It would be open to draw an inference that Interpol issued the IRN being satisfied that its rules and conditions for the issue of a red notice had been met. A decision-maker might take that into account in considering what inferences to draw and what weight to give those inferences. Inferences could be drawn as to the possibility or likelihood of the alleged offence in fact having occurred. 60. Inferences could be drawn about the character of a person who engaged in conduct alleged in the IRN and addendum. Inferences might be made about whether such a person might engage in that conduct again or other conduct or might engage in some form of conduct in Australia considered to present a risk. 61. A conclusion about risk can be drawn from what is accepted as having occurred, or possibly having occurred, in the past. Contrary to the applicant's submission, the fact that the relevant asserted past events have been specifically identified and occurred in Vietnam in particular circumstances does not necessarily confine the availability of inferences to whether the same or substantially similar events would occur or make it necessarily unreasonable to reach a conclusion that the person presents a risk to Australia. 149 Finally, his honour noted (at J [62]) that "[w]hat inferences should be drawn is a matter for the Minister" and "[i]t is not possible to say that no administrative decision-maker acting reasonably could infer from the IRN and Addendum that the person would present a risk to the Australian community or a segment of that community."

Appellant's submissions 150 The appellant submitted that in concluding the Minister's decision was not unreasonable, his Honour erred for one or more of the following reasons. 151 First, it was said that none of the matters upon which his Honour relied can properly be viewed as an analysis of the content of the IRN itself and of the inferences that can be drawn from that material. Instead, it was said that the primary judge's analysis proceeds at a level of abstraction that hypothesises an IRN displaying certain broad features without considering whether the requisite inference under s 501(6)(h) is reasonably to be drawn from the actual content of the IRN. It was said that his Honour therefore failed to consider whether that inference was reasonably available "from" the IRN. Indeed, it was said that the primary judge's reasoning ignores the plain language of s 501(6)(h), which is triggered not by the existence of an Interpol notice but by an available inference from the notice that a person presents a particular risk. 152 Secondly, it was said that if the primary judge's reasons are to be read as conclusions flowing from the content of the IRN, those conclusions are erroneous because: (1) the mere fact that the Vietnamese authorities had issued an arrest warrant logically says nothing about the likelihood of the alleged offence in fact having occurred; and (2) even if an inference could be drawn from the IRN that Interpol was satisfied that "its rules and conditions for the issue of a red notice had been met" (J [59]), that matter cannot be probative of whether the appellant represents a risk to the community given Interpol's dependence upon information from National Central Bureaus (see ERY19 Appeal (at [70(4)])) and its limited review role. 153 Thirdly, it was said, relying on Stewart J's reasoning in ERY19 (at [54]), that the IRN contains only an unproven allegation by the Vietnamese authorities, adopted without modification by Interpol, that the appellant has engaged in activities in contravention of art 165 of the Vietnamese Criminal Code. Various arguments were made that the allegations in the IRN lack specificity or an evidential basis, and are otherwise insufficient to ground a reasonable inference as to a danger of repetition or engagement in similar conduct in Australia. These included that: (1) nothing can be inferred as to the content of the "State's regulations" said to have been breached; (2) nothing can be inferred as to the actual conduct the appellant is alleged to have engaged in leading to the breach of those regulations; (3) the statement in the IRN that no arrest warrant is available at Interpol means nothing can be inferred as to the basis upon which the arrest was authorised; (4) the "facts of the case" are described at a high level of generality conveying no more than some basic legal integers of the offence, without reference to any evidence and even the legal integers described in the IRN create doubts about whether the appellant has actually been charged with an offence under Article 165; (5) the Addendum adds nothing apart from a further unproven, unsupported allegation by the NCB that the appellant "embezzl[ed] property" and absent information as to the State regulations said to have been breached and the conduct said to have constituted that breach, it is impossible to determine what content, if any, is to be given to the allegation of embezzlement, nor even possible to determine the source, within Vietnam's law enforcement system, of that allegation; and (6) even if the IRN contained enough information to support a reasonable inference that the appellant engaged in the charged conduct that would not ground any reasonable inference as to a danger of repetition or engagement in similar conduct in Australia. 154 It was said that regardless of whether this Court applies the construction of Stewart J in ERY19 or that of the primary judge, it is not open to draw the s 501(6)(h) inference from the IRN.

Consideration 155 As we have noted above, it is unnecessary to express a concluded view on the Unreasonableness Ground. In saying this, a few overarching comments can be made. 156 First, as we said in ERY19 Appeal (at [108]), the starting point in any inquiry as to the power exercised pursuant to s 501(6)(h) must always be the Interpol notice. All things being equal, the Minister may reasonably infer that a person would present a risk to the Australian community or a segment of it from the Interpol notice itself. The reasonableness of the inference, however, will ultimately depend on the facts of the individual case. 157 Secondly, contrary to the appellant's submission, nothing in s 501(6)(h) calls for the Minister to be satisfied that the non-citizen in relation to whom an Interpol notice is in force actually offended in the manner described in that notice, that there is "a reasonable case to be made" against him or her, or that there is "evidence … in support of the charges". As the primary judge, with respect, correctly observed (at J [61]), inferences can be made about whether a person might engage in some form of conduct in Australia considered to present a risk from what is accepted as having occurred, or possibly having occurred, in the past. Of course, evidence of these facts may heighten the degree of certainty in drawing the inference, but they are not a precondition in the sense proposed by the appellant. All that is required is that the inference drawn from the notice is reasonable. 158 Thirdly, although views may legitimately differ, we would be inclined to interpret factors such as the brevity and vagueness of the charges alleged in the IRN, there being no arrest warrant available to be viewed, no extradition request made in the ten years since the IRN was issued, and the purported lack of connexion between the Addendum and the charges the subject of the IRN, as weighing against there being a reasonable inference, objectively available, that the appellant would present a risk to the Australian community or a segment of it. But it is unnecessary to deal with these considerations any further. Apart from anything else, the primary judge was placed in the highly unsatisfactory position of proceeding on the basis that the IRN before him represented the entirety of its contents. 159 In the end, it is not the role of the Court to hypothesise in the abstract; but rather assess a decision, once made, and determine whether it has been made in accordance with the terms of the statutory mandate.

E.3 Extraneous Material Ground 160 As it turned out, the Extraneous Material Ground was not advanced in a way that the name might suggest. On appeal, the appellant accepted that a court is not prevented from looking at material extraneous to the notice, so long as the purpose of the material is used to decide whether or not the inference to be drawn from the notice is reasonable; that is, confirming or denying, or bearing upon the credibility or reliability of, the information contained in the notice. 161 This approach is correct. A different and broader approach would cut across the legislative purpose of s 501(6)(d)(v), which already provides for a wide-ranging inquiry, without restrictions on the evidence that may be taken into account, into the danger that a person poses to the Australian community: see ERY19 Appeal (at [101]-[102]). This conclusion is supported by the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (which ultimately became the amending Act inserting s 501(6)(h)), which states that the insertion of ss 501(6)(g)-(h) "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 [Act]".

F Conclusion and OrERS 162 The appeal should be dismissed for the reasons outlined. Costs should follow the event. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Lee and Wheelahan.