Jama v Minister of Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 149

Jama v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 410; [2023] FCAFC 148

Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1419

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 135

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15

Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142

Administrative and Constitutional Law and Human Rights

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

1. The appellant's application for leave to file and rely upon a proposed amended notice of appeal dated 7 August 2025 be dismissed.
2. The appeal be dismissed.
3. The appellant pay the respondent's costs of the proceeding, to be assessed in default of agreement in accordance with the court's Costs Practice Note (GPN-COSTS).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The appellant, Mr Jama, is a citizen of New Zealand. He came to Australia in 2008 and, in 2014, was issued with a Class TY Subclass 444 Special Category (Temporary) visa (the "Visa"). In 2019, he was convicted of aggravated armed robbery and sentenced to four years' imprisonment, 12 months of which he served. Shortly after his incarceration commenced, his Visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the "Act").
2. Mr Jama sought to have that cancellation (the "Mandatory Cancellation") revoked; initially by a delegate of the first respondent (the "Minister") and, later, by what was then known as the Administrative Appeals Tribunal (the "Tribunal"). When those attempts (hereafter and collectively, the "Revocation Application") failed, he moved for prerogative relief in this court. That, too, failed at first instance; but succeeded on appeal: Jama v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 410; [2023] FCAFC 148 (Markovic, Sarah C Derrington and Feutrill JJ).
3. Thereafter, the Revocation Application came back before the Tribunal, which, on 17 May 2024, revoked the Mandatory Cancellation pursuant to s 501CA(4)(b)(ii) of the Act, with the result that the Mandatory Cancellation decision was taken not to have been made.
4. A few weeks after that decision (the "Revocation") was made, the Minister made a decision of his own under s 501BA of the Act to set aside that Revocation and cancel the Visa (the "Ministerial Cancellation"). The Minister expressed his view that Mr Jama did not pass the "character test" and that it was in the national interest that the Visa be cancelled.
5. Mr Jama then made another application for prerogative relief, this time directed to the Ministerial Cancellation, which he sought to portray as a product of jurisdictional error. That application (the "Judicial Review Application") came before a judge of this court, who, on 11 December 2024, dismissed it: Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1419 (the "Primary Judgment").
6. On 30 January 2025, Mr Jama lodged an appeal from the Primary Judgment. It proceeds upon a single ground; but, at the hearing of the appeal, he pressed an application for leave to rely upon a proposed amended notice, by which he sought to press a second one. For the reasons that follow, neither the existing nor the proposed additional ground of appeal has merit. Leave to file the amended notice of appeal should (and will) be refused and the appeal should (and will) otherwise be dismissed. There is no reason not to make the usual order for costs.

1. Section 501BA of the Act relevantly provides (and at the time of the Ministerial Cancellation, provided) as follows, namely:

501BA Cancellation of visa - setting aside and substitution of non adverse decision under section 501CA

(1) This section applies if:

(a) a delegate of the Minister; or

(b) the ART;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister - natural justice does not apply

(2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii) paragraph 501(6)(e); and

(b) the Minister is satisfied that the cancellation is in the national interest.

(3) The rules of natural justice do not apply to a decision under subsection (2).

Minister's exercise of power

(4) The power under subsection (2) may only be exercised by the Minister personally.

1. For present purposes, it is uncontroversial that:

(1) the Revocation qualified as an "original decision";

(2) Mr Jama was, for the purposes of s 501BA(2)(a), a person who did not pass the "character test" for which s 501 of the Act provided; and

(3) the Minister did not afford Mr Jama an opportunity to advance evidence or submissions before making the Ministerial Cancellation.

1. The Ministerial Cancellation was made on Tuesday, 4 June 2024. It was communicated to Mr Jama under cover of correspondence from the Minister's Department. Annexed to that correspondence were various attachments, including a written and signed record of the Minister's decision and a statement of the reasons for which the Ministerial Cancellation was made. Those reasons (the "Minister's Reasons") contained a number of passages that it is prudent now to record.
2. After rehearsing some matters of history, the Minister's Reasons addressed the nature of the power conferred by s 501BA of the Act. As concerns the import of s 501BA(3) of the Act, the Minister's Reasons recorded as follows:

Under s 501BA(3) of the Act, the rules of natural justice do not apply to a decision under s 501BA(2). While this means that I am not required to apply the rules of natural justice when making a decision under s 501BA(2) by giving the affected person an opportunity to be heard before making the decision, I am aware that s 501BA(3) does not prohibit me from affording such an opportunity.

In this case, I chose to proceed without giving Mr JAMA an opportunity to be heard before making my decision. I am cognisant that as a consequence, Mr JAMA has not had the opportunity to advance reasons why an adverse decision should not now be made.

I have, however, given consideration to information given by Mr JAMA in relation to the original request for revocation and as reflected in the decision record of the [Tribunal] in revoking the decision to cancel Mr JAMA's visa.

1. Under the heading, "NATIONAL INTEREST", the Minister's Reasons recorded a series of observations about Mr Jama's criminal history. Those observations were organised by subheadings, one of which concerned the "Risk to the Australian community". Under that subheading, the Minister summarised a series of matters, before recording the following conclusions:

The Australian government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens.

I have found that the nature of Mr JAMA's conduct is very serious. I have further found that violent offending has the potential to cause serious physical and/or psychological injury to members of the Australian community, if repeated.

Mr JAMA provided to the [Tribunal] a report from forensic psychologist Mr Jeffrey Cummins dated 26 February 2024 (Attachment N4). Mr Cummins opined that the risk of Mr JAMA committing another violent offence as low-moderate trending towards low. I place significant weight on this report and opinion and preferred it over other pieces of evidence before me referring to Mr JAMA's low risk of reoffending, including the comment of the sentencing judge who described the offence as an aberration. I have preferred Mr Cummins'[s] report because that it is the most recent independent expert report before me and the credentials of Mr Cummins including having practised as a clinical and forensic psychologist for approximately 38 years.

Mr JAMA has committed a very serious violent offence. Should he engage in similar conduct again, it would be likely to result in serious psychological and/or physical harm to members of the community. I consider that this conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it could be repeated is unacceptable. Having accepted Mr Cummins'[s] opinion, I consider there to be a low to moderate risk that Mr JAMA will reoffend. I am also particularly concerned by Mr JAMA's continued use of drugs whilst in immigration detention, despite having undertaken rehabilitation relating to drugs and I am not satisfied that Mr JAMA's drug use has completely resolved.

Considering the nature and seriousness of Mr JAMA's conduct, the potential harm to the Australian community should he commit further offences or engage in other serious conduct, and taking into account the likelihood of Mr JAMA reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs significantly in favour of a finding that it is in the national interest to cancel Mr JAMA's visa.

1. Later, the Minister came to consider whether there might be discretionary reasons not to exercise the power that s 501BA of the Act conferred upon him. As history records, the Minister was ultimately satisfied that that power should be exercised. Key to that outcome was the following conclusion:

I have weighed up the above countervailing factors against the national interest considerations. In doing so, I considered the very serious nature of the violent offence Mr JAMA has committed in Australia. Non-citizens such as Mr JAMA who have a criminal history of such an offence should not generally expect to be permitted to remain in Australia.

I find that the Australian community could be exposed to significant harm should Mr JAMA reoffend in a similar fashion. I have found there to be a low to moderate risk that Mr JAMA will reoffend. The Australian community should not tolerate any risk of further harm.

1. By the Judicial Review Application, Mr Jama contended that the Ministerial Cancellation - and, collaterally, the Minister's decision to exercise his power under s 501BA of the Act without first applying the rules of natural justice - were each tainted by a reasonable apprehension of bias and, for that reason, were each a product of jurisdictional error.
2. The bias that Mr Jama alleged was said to inhere in a series of public remarks that the Minister had made about the prevalence of decisions of the Tribunal to revoke the cancellation of visas held by persons who did not pass the "character test". It is prudent at this juncture to identify those remarks.
3. On Wednesday, 29 May 2024, the Minister participated in an interview that was televised by the Australian Broadcasting Commission. During the course of that interview (the "ABC Interview"), he was asked and answered questions concerning a ministerial direction issued pursuant to s 499 of the Act and its impact upon applications made under s 501CA. Asked whether he conceded that public safety had been adversely impacted by the application of that direction, the Minister responded:

Well, some of the [Tribunal] decisions are very hard to reconcile with any sense of the expectations of the Australian community, nor, frankly, common sense. These are very concerning. That's why I've also rushed to consider cancellation submissions in respect of some of the cases that have been brought to light. And I've already cancelled six visas having done so.

1. Later, the Minister was asked whether a revised direction would result in "...zero possibility of any tribunal member granting or restoring a visa that you have cancelled?". The Minister declined to give that guarantee, following which it was put to him that there might remain "potential loopholes" through which some people of "character test" concern might retain their visas. The Minister responded:

Well, I am focused in the first instance of ensuring that a person who does not meet the requirements of the character test and is in Australia has their visa cancelled...[A]s you'd be well aware, yesterday we abolished the [the Tribunal] and are putting in place a new, truly independent administrative review tribunal. That is an independent body. We have to give it the clearest possible guidance to ensure that its members' decisions meet the expectations of the Australian community.

1. The Minister also indicated that he had "...instructed [his] department to advise [him]...within 24 hours" of decisions made by the Tribunal to revoke the cancellations of visas held by people who did not pass the "character test".
2. The following day (Thursday, 30 May 2024), the Minister participated in an interview that was televised on the Sky News network. During the course of that interview (the "Sky News Interview"), the Minister referred to the Tribunal having made decisions to revoke the cancellation of visas held by people of "character test" concern. Some of those decisions, he said, "...don't meet the expectations of the Australian community [and] don't meet the standard of common sense".
3. The Minister went on to state that:

...we are, in the first instance, looking at these cases where revocations have happened. I've dealt with eight cases now. I will deal with the others as a matter of the utmost urgency.

1. Asked to particularise those "eight cases", the Minister said:

Well, these are cases that go to some serious offending, some really serious offending, that, frankly, where the decision of the tribunal does not meet my expectations, I've considered them and it's in the national interest, in my view, that the visas continue to be cancelled so that the community can be kept safe...

1. Later, the Minister was asked about a further 30 matters that he was understood to be considering; and, in particular, about whether or not the visa holders who were the subjects of those matters "...will be booted". The Minister replied:

Well, I will consider the cancellation as you'd imagine. I've got to apply the test, but I'm considering these cancellations as a matter of the utmost urgency. Submissions are coming up and I will consider them as soon as they come up and I will deal with them in accordance with my view about the national interest and the absolute imperative of community safety.

1. On Monday, 3 June 2024, the Minister's office issued a press release that was headed, "30 visas cancelled over the past week". That document, which is expressed as though a quote from the Minister himself, went on to state (errors original):

Over the last week I have cancelled 30 visas of non-citizens with serious criminal histories, in the national interest.

It is clear that the Administrative Appeals Tribunal's decision to reinstate these visas did not meet community expectations, and Ministerial Direction 99 has not been working as the Government intended.

The Government is on track to overhaul this regime and put in place a new Direction before the end of the week.

...

As the Government has consistently said, community safety is our number one priority and we will always act in the interest of Australians.

1. It is a matter of record that the Ministerial Cancellation was made the following day (Tuesday, 4 June 2024).
2. Before the primary judge, Mr Jama submitted that the Ministerial Cancellation was a product of jurisdictional error because it was attended by a reasonable apprehension of biased prejudgment. That apprehension was said to arise by reason of the public remarks summarised above (hereafter, the "Minister's Public Remarks"). Her Honour summarised Mr Jama's contention thus (Primary Judgment, [21]):

...the Applicant's case was advanced on the basis that the [Minister's Public Remarks], approached cumulatively, may lead a fair-minded lay observer to conclude that the Minister would "inevitably" decide not to afford an applicant natural justice and decide to set aside the [Revocation] and cancel the person's visa. The Applicant contended that the statements demonstrated an "implacable position that the Tribunal decision would be set aside and the applicant's visa cancelled".

1. For the purposes of the hearing of the Judicial Review Application, the Minister conceded that s 501BA(3) of the Act did not operate to exclude the natural justice "bias rule" (that is to say, the incident of the rules of natural justice that holds that decisions should not be attended by any actual or reasonable apprehension of bias on the part of the decision maker).
2. Save to repeat that the primary judge did not accept that the Ministerial Cancellation could fairly be tainted by any reasonable apprehension of bias on the Minister's part, it is unnecessary now to traverse her Honour's reasons for so concluding. On appeal, Mr Jama contends that her Honour's conclusion was reached in error. Whether or not it was depends solely upon the nature of the Minister's Public Remarks and the extent to which they might bespeak bias at a level that is apt to impugn the Ministerial Cancellation in the way that Mr Jama seeks to impugn it.

1. In its original (and present) form, the appeal proceeds upon a single ground, namely that (emphasis original):
   1. The primary judge erred in failing to find that the Minister's decision under s 501BA(2) of the [Act] dated 4 June 2024 to set aside the [Revocation] and cancel the appellant's [Visa] (Cancellation Decision) is affected by jurisdictional error because a fair-minded lay observer might reasonably apprehend that the Minister might not have brought an open mind to:

a. making the Cancellation Decision; and

1. deciding whether to exercise discretion to afford the appellant natural justice.

1. Prior to the hearing of the appeal, Mr Jama's representatives gave notice of his intention to seek leave to advance an additional ground - one that was not advanced before the primary judge - namely that (emphasis original):
   1. The Minister fell into jurisdictional error by misunderstanding the psychological report of Mr Jeffrey Cummins dated 26 February 2024 (Cummins Report), or otherwise reasoning illogically, irrationally or unreasonably in relation to the Cummins Report, and the primary judge erred in failing so to find.

Particulars

(a) The Minister chose to assess the appellant's risk of committing a further serious violent offence as a substantial part of the Minister's assessment of whether it was in the "national interest" to cancel the appellant's visa.

(b) In purported reliance on the Cummins Report, the Minister concluded that there was a "low to moderate risk" that the appellant will reoffend in a similar manner to the offence of aggravated armed robbery.

(c) In reaching the conclusion at [38], the Minister misunderstood the Cummins Report on which he purported to rely, or alternatively, reasoned illogically, irrationally or unreasonably.

1. It is convenient to address each ground separately. We will begin with the second (proposed) ground.

1. Before addressing the substance of the proposed new ground, something should be said about the principles that regulate the prosecution of contentions on appeal that were not pressed at first instance.
2. It is uncontroversial to observe that an appeal court "...has a discretion to permit an appellant to argue a new issue on appeal where it considers that it is expedient in the interests of justice to entertain the issue": CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46, 372 [35] (Murphy, Mortimer and O'Callaghan JJ). That discretion is more likely to be exercised in an appellant's favour where a proposed new ground could not have been met at first instance by the adducing of additional evidence but, rather, turns solely upon a question of law.
3. Whether it is expedient in the interests of justice to permit the agitation on appeal of a contention not raised at first instance turns upon a number of considerations, including the merits of the proposed ground, any explanation that might be given for why it wasn't agitated at first instance, and any prejudice that its agitation might visit upon a respondent: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 135; 85 [166] (Madgwick J, with whom Conti J agreed); cited with approval in EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304; [2018] FCAFC 214, 312 [33] (Perry, Derrington and Wheelahan JJ). Often - and the present ground is a good example - it turns principally (or almost exclusively) upon whether or not the ground has merit.
4. Presently (and notwithstanding the observation just made), the Minister invites the court to take account of the absence of evidence from Mr Jama as to why the point that he now seeks to press was not pressed below. Before the primary judge, Mr Jama was represented by experienced senior and junior counsel; and the Minister theorises that they were no less capable of identifying and pursuing the ground than Mr Jama's new counsel. The court can, he says, have no confidence that the reason that the point was not advanced was that it was not identified. It is, he suggests, no less likely that Mr Jama's then counsel made a forensic decision not to pursue it.
5. Whether that is or is not so is not a matter upon which we consider it necessary to speculate. Ultimately, the likelihood that the non-pressing of the point below was a product of forensic advocacy is very likely tied to whether or not the point has any merit. It is, we think, both prudent and convenient to focus upon that aspect of the inquiry.
6. To understand the appellant's proposed new ground, it is necessary to rehearse the content of the "Cummins Report". It is to be recalled that, for the purposes of assessing the level of risk that Mr Jama might pose to the Australian community, the Minister was minded to consider the report of a forensic psychologist, Mr Jeffrey Cummins, dated 26 February 2024. That report (the "Cummins Report") had been provided to the Tribunal for the purposes of assisting with its determination of the Revocation Application.
7. Amongst other things, the Cummins Report contained statements of Mr Cummins's opinion about the likelihood that Mr Jama might engage in further criminal conduct. Under the heading "RISK ASSESSMENT" (at [52]-[58]), Mr Cummins recorded as follows:

[53] Given all of the information currently available to me concerning Mr Jama and also taking into consideration the risk factors as assessed by the HCR-20 V3, I concluded his risk for committing a further offence of violence was Low-Moderate and trending towards Low (where the risk category ratings are Low, Low-Moderate, Moderate, Moderate-High and High).

[54] I would have assessed his risk for committing a further offence of violence as Low if he had participated in a comprehensive offence specific treatment program such as an anger management program or a Men's Behaviour Change Program.

1. Later and by way of conclusion, the Cummins Report stated:

[72] In my opinion he presents as being significantly rehabilitated since committing the aggravated armed robbery. As indicated above, I would have assessed his level of risk for committing a further offence of violence as Low rather than Low-Moderate if he had completed a comprehensive anger management program and/or a Men's Behaviour Change Program.

[73] In my opinion the current risk for him committing another serious violent offence is Low. In contrast, I assessed his risk for general reoffending as Low-Moderate and trending towards Low.

1. In the reasons published in support of the Ministerial Cancellation, the Minister noted that Mr Cummins had assessed the likelihood that Mr Jama would commit another violent offence as "low-moderate trending towards low": see above, [11]. The Minister considered that Mr Jama's criminal history involved "...a very serious violent offence" that was such that "...any risk that it could be repeated is unacceptable". He went on to observe that there was "...a low to moderate risk" that Mr Jama would reoffend.
2. Mr Jama's proposed new appeal ground is advanced in two ways.
3. First, it is said that the Minister wrongly attributed to Mr Cummins the view that there was a "low-moderate trending towards low" risk that Mr Jama would engage in serious violent offending. In fact, so the contention continues, Mr Cummins opined that there was a "low" risk that Mr Jama would engage in "another serious violent offence". That being so, it is said that there was no evidential basis to support the Minister's conclusion that there was "a low to moderate risk" that Mr Jama might partake of "a very serious violent offence". That reasoning, it is said, proceeded upon a misunderstanding of the evidence or was otherwise illogical, irrational or unreasonable to a point bespeaking jurisdictional error.
4. Second, it is said that the Minister wrongly equated the concept of "low-moderate" risk (as Mr Cummins described the likelihood of Mr Jama's reoffending, including by means of violence) with a level of risk that was "low to moderate" (being the terminology that the Minister employed). Again, it is said that there was no evidential basis capable of supporting the Minister's conception of the relevant risk, such that his reasoning can be impugned either as having been premised upon a misunderstanding of the evidence, or otherwise as illogical, irrational or unreasonable to a point bespeaking jurisdictional error.
5. Respectfully, neither incantation of the ground has merit.
6. The first is a paradigm example of a contention that rests upon a reading of the Minister's Reasons with "...an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). It involves an ungainly parsing of the words that Mr Cummins used and an extreme - and, at times, contorted - equating of them with what the Minister's Reasons conveyed. It is clear beyond doubt that the Minister approached the risk that Mr Jama might engage in violent offending consistently with the manner in which Mr Cummins assessed it: that is to say, as "low-moderate trending towards low". It is equally clear that the Minister considered that "any risk" - whether "low-moderate" or "low" or otherwise - that Mr Jama might engage in conduct similar to that in respect of which he was imprisoned was "unacceptable". His reasoning in that regard was orthodox and there is no occasion now to undertake the kind of miniscule dissecting upon which this variant of the proposed ground proceeds. The Minister's Reasons reflect a proper appreciation of the views that were expressed in the Cummins Report and are completely removed from the illogicality by which Mr Jama sought to impugn them.
7. The second incantation of the proposed new ground is even more ambitious. Distilled to its essence, it proceeds upon the suggestion that no decision maker in the position in which the Minister here found himself could reasonably equate a level of risk described as "low-moderate" with a level of risk that was "low to moderate". Respectfully, that suggestion is unsustainable; perhaps self-evidently so.
8. Mr Jama was at pains to point out that Mr Cummins's assessment was based on a five-point scale, by which risk was rated as "low", "low-moderate", "moderate", "moderate-high" or "high". A "low-moderate" rating, he said, was quantitatively different to a "moderate" rating; and, by describing his risk of reoffending as "low to moderate" (and, therefore, as incorporating a potentially "moderate" level of risk), the Minister should be understood to have misunderstood Mr Cummins's evidence - and, thereby or otherwise, to have reasoned irrationally or illogically to a point reflective of jurisdictional error.
9. The obvious difficulty with that contention is that the five-point rating scale that Mr Cummins used was not one that permitted of precise quantification. The assessment of risk - at least in the present context - is an inherently inexact science. There is no bright line that mathematically distinguishes a level of risk that is "low-moderate" from a level of risk that is "moderate".
10. It is also of no moment that the Minister's description of the risk pertaining in Mr Jama's case differed linguistically from the description that Mr Cummins offered. The Minister was entitled to express his reasons in his own terms. At issue is whether his reasoning might be impugned as being so obviously disconnected from what the evidence disclosed as to remove his conclusion beyond what was authorised under the Act. Appreciating, as we have said, the inherent imprecision that attends terminology like "moderate", "low-moderate" and "low to moderate", that is a hurdle that cannot be cleared.
11. The proposed ground is without merit. In saying so, we should not wish to visit any undue criticism. It is not uncommon - particularly in matters of migration law - for the court to be treated to innovative, sometimes adventurous advocacy. We do not suggest that the contention advanced here was advanced inappropriately.
12. Leave to press the proposed new ground on appeal is refused.

1. The principles of law that govern the actionable apprehension of bias are well settled. Although there are exceptions, a decision of the kind to which they apply will be attended by a reasonable apprehension of bias if it may be said that a fair-minded and reasonable lay observer might have cause to think that the decision maker might decide the matter otherwise than on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15, 163 [37] (Kiefel CJ and Gageler J). Generally, the identification of the apprehension involves, first, the identification of some circumstance or attribute peculiar to the decision maker that is capable of giving rise to the perception; and, second, the giving of an explanation as to why that circumstance or attribute reasonably might lead the proverbial lay observer to conclude that the decision maker is predisposed to making a decision otherwise than on its merits.
2. At the hearing of the appeal, there was some debate about whether or not the Minister's concession about the operation of s 501BA(3) of the Act was especially "courageous or unwise" (to engage the vernacular of senior counsel). It was made clear that the concession - namely, that s 501BA(3) of the Act does not operate to relieve the Minister of an obligation to make decisions under that section free from any actual or apprehended bias - was a forensic one made only "for present purposes".
3. The primary judge determined the Judicial Review Application on that basis and there is at least some authority that is supportive of it: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142, 278-9 [35] (Mortimer J, in obiter, with whom Bromwich J agreed; Thomas J agreeing in the result).
4. It might be said (although, for reasons to which attention will shortly turn, it is not here said) that it is difficult to conceive of how the power conferred by s 501BA(2) of the Act could be exercised in circumstances that did not permit of a reasonable apprehension of bias. Its exercise will often (though, admittedly, not always) come on the heels of a proceeding before the Tribunal to which the Minister was party. Moreover, the Minister will, in every such case, have been the losing party. But for s 501BA(3), there would be an obvious reason why the subsequent exercise of a related power by a disappointed litigant might be open to question. By inoculating the exercise of that power from the requirements of natural justice - which include, on any view, the requirement that decisions not be made in circumstances that reasonably bespeak of a possibility of implacable prejudgment unrelated to merit - the Parliament must be understood to empower what would otherwise routinely be vulnerable.
5. That being so, the Minister's concession before the primary judge might well have been "courageous or unwise". Be that as it may, it is not resiled from and there is no occasion now for the court to resolve the issue. We should not be understood to endorse or reject what little the authorities say about the operation of s 501BA(3) of the Act.
6. Instead, it suffices to answer the question consistently with the way that the appellant posed it: namely, were the Minister's Public Remarks such as might warrant a proverbially fair-minded lay observer reasonably to conclude that the Ministerial Cancellation might have been the product of implacable prejudgment based otherwise than on merit?
7. They were not.
8. The Minister's statement during the ABC Interview that visa holders who do not satisfy "the requirements [sic] of the character test" should have their visas cancelled is properly to be understood as a high-level statement of political principle. As the primary judge observed (Primary Judgment, [38]), it might well give rise to a reasonable apprehension that visa holders who answer that description should expect that their visas will likely be cancelled, but not that they will be cancelled without due consideration of their relevant circumstances, or of the merits that might attend the available or apparent arguments to the contrary. A reasonable apprehension of defeat is not the same as a reasonable apprehension that a decision will be made otherwise than on its merits.
9. The primary judge, quoting from the judgment of Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, 531-2 [72], was moved to conclude in the following terms (Primary Judgment, [45]):

The Minister's statements were made within the realm of the Minister's political role and indicated views about the importance of community safety that he would be applying in approaching consideration of cancellation decisions of the cohort in question...Ministers are not required to reassess and reformulate standards every time a decision comes before him or her. The Minister's statements are not statements that might cause the fair-minded lay observer to think that the Minister's mind may be closed so that he would inevitably set aside the Tribunal's decision and would decide to cancel the Applicant's visa, or would inevitably decide not to afford the Applicant natural justice. The Minister's statements did not indicate that he had prejudged any particular case that was before him, or would be coming before him. His statements would not have indicated to a fair-minded lay observer that his mind may be "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented"...

1. Respectfully, those observations are unimpeachable and we adopt them as though our own.
2. The Ministerial Cancellation and the antecedent decision to effect it without first affording Mr Jama natural justice were not decisions that the Minister made in circumstances that bespoke any reasonable apprehension of bias. With respect, the primary judge was correct so to conclude. Appeal ground one is not made good.

1. The appellant's application for leave to agitate the proposed second ground of appeal should be dismissed, as should the appeal itself. There is no reason why the usual order for costs ought not to be made and there will be orders accordingly.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, Snaden and Wheatley.