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.