(b) Has been or is a member and has been or is involved in criminal conduct - a disconformity in the Minister's fact finding?
103 The second ground to be resolved addresses the contention of Mr Taulahi and Mr Carrascalao that the Minister acted unlawfully in respect to his suspicion that each "has been or is a member" of a group which "has been or is" involved in criminal activity.
104 The statutory language employed by the Minister may be traced back most immediately to the terms of s 501(6)(b) of the Migration Act.
105 In Mr Taulahi's proceeding, the argument is raised by grounds 9 and 9A of his Further Amended Originating Application which provide as follows:
9. The Minister erred in forming a satisfaction that cancellation was in the national interest because he formed that satisfaction illogically or irrationally.
Particulars
(i) The Minister's satisfaction that cancellation was in the national interest was to be formed reasonably on the materials before him.
(ii) An essential step in the Minister's reasoning that cancellation was in the national interest was that he suspected that the applicant was presently a member of a group which was suspected of being involved in criminal conduct: see Statement of Reasons at [15].
(iii) The Minister did not form a suspicion that the applicant was, at the time of the cancellation decision, a member of a group which was suspected of being involved in criminal conduct. His state of mind rose no higher than a suspicion that the applicant either had been or was a member of such a group: see Statement of Reasons at [7], [9].
(iv) The Minister's misunderstanding of his own suspicion was such as to give rise to vitiating illogicality or irrationality.
(v) If the applicant only had been, but was not presently, a member of the relevant group, there was no logical or rational basis upon which the Minister could form a satisfaction that excluding him from the Australian community would "contribute to national law enforcement efforts to disrupt and disable such groups": cf Statement of Reasons at [15].
9A. The Minister failed to form a suspicion of the kind referred to in s 501(6)(b) because:
(a) the Minister formed no more than a suspicion that the applicant "has been or is" a member of a group which "has been or is" involved in criminal conduct; and
(b) properly construed, the power to cancel a visa under s 501(3) is not enlivened if the Minister fails to form one or the other (or both) of the disjunctive suspicions referred to in s 501(6)(b).
In Mr Carrascalao's proceeding, the corresponding grounds are 7 and 7A.
106 In Mr Taulahi's proceeding, those paragraphs of the Minister's statement of reasons of most immediate relevance are [9], [10] and [15]. When addressing the "Character Test", the Minister's reasons stated as follows:
9. I also noted that that the Commonwealth Organised Crime Strategic Framework Overview had identified OMCGs as being involved in organised crime activities and remain a significant threat and that the Lone Wolf motorcycle club is declared to be a criminal organisation under the Criminal Code (Criminal Organisations) Regulation 2013 (Qld).
10. Having had regard to all of the material that was before me, particularly the information protected under section 503A of the Act, I reasonably suspect that Mr TAULAHI does not pass the character test by virtue of section 501(6)(b) in that I reasonably suspect that he has been or is a member of a group and that the group has been or is involved in criminal conduct.
When addressing the "National Interest", the Minister's reasons stated as follows:
15. I concluded that the cancellation of Mr TAULAHI's visa on the basis of his suspected membership of a group suspected of being involved in criminal conduct is in the national interest insofar as excluding such persons from the Australian community will contribute to national law enforcement efforts to disrupt and disable such groups.
In the Minister's statement of reasons provided in respect to Mr Carrascalao, the corresponding paragraphs of those reasons are [14], [15] and [21] (noting that there is additional material in [21] as set out in [114] below).
107 Grounds 9 and 9A of the Further Amended Originating Application for review in Mr Taulahi's proceeding, and grounds 7 and 7A raised in Mr Carrascalao's proceeding, focus on an apparent disconformity in the Minister's statements of reasons relating to the Minister's findings concerning the character of these respective Applicants and his findings regarding the national interest. It may be interpolated at this point that, although the Minister was not obliged to provide a statement of reasons for his decisions to cancel the visas of either Mr Taulahi or Mr Carrascalao (see s 501G of the Migration Act), he elected to do so (see [71]-[72] above). Before addressing the relevant parts of the Minister's statements of reasons, it is convenient to highlight some features of the legislative scheme.
108 The Minister's decisions to cancel the visas of both Mr Taulahi and Mr Carrascalao were made under s 501(3)(b) of the Migration Act, relying specifically in both cases on that limb of the character test which is in s 501(6)(b).
109 In the case of Mr Carrascalao, there is also an issue to be determined as to whether the decision to cancel his visa under s 501(3)(b) was based not only on a finding that he did not pass the character test under s 501(6)(b), but also on a finding that he had a substantial criminal record for the purposes of s 501(6)(a) and s 501(7)(c). The parties took advantage of the Court's invitation for them to provide brief supplementary written submissions on this issue.
110 It is considered that the following matters are relevant to the resolution of the issue.
111 The formal decision by the Minister dated 17 May 2016, as revealed by the Minister's handwritten annotation on the final page of the Issues Paper, was in the following terms:
I reasonably suspect that Mr CARRASCALAO does not pass the character test and I am satisfied that cancellation of Mr CARRASCALAO's Transitional (Permanent) visa is in the national interest. I have decided to exercise my discretion under section 501(3) of the Migration Act to cancel Mr CARRASCALAO's visa. I hereby cancel Mr CARRASCALAO's Transitional (Permanent) visa.
This statement does not assist in resolving the relevant issue because of the level of generality at which it is expressed. Greater assistance is obtained from the contents and structure of the Minister's statement of reasons in respect of Mr Carrascalao's case.
112 In that part of the statement relating to the "CHARACTER TEST" (i.e. [5] to [15]), the Minister separately considered the two limbs of the character test under s 501(6)(a) and (b). After noting that Mr Carrascalao had been sentenced to a term of imprisonment of twelve months or more, the Minister concluded:
8. Based on the above information, I reasonably suspect that Mr CARRASCALAO does not pass the character test on account of his substantial criminal record.
113 The Minister then turned his mind to s 501(6)(b) and, after noting various information concerning Mr Carrascalao's links to the Bandidos outlaw motor-cycle gang, the Minister made the following finding:
12. Based on the above information, including information protected under section 503A, I reasonably suspect that Mr CARRASCALAO has been or is a member of the Bandidos OMCG.
114 Then, in [15] of the statement of reasons, the Minister stated as follows:
15. Having had regard to all of the material that was before me, particularly the information protected under section 503A of the Act, I reasonably suspect that Mr CARRASCALAO does not pass the character test by virtue of subsection 501(6)(b) in that I reasonably suspect that he has been or is a member of the group and that the group has been or is involved in criminal conduct.
115 In the next section of the statement of reasons, headed "NATIONAL INTEREST" ([16] to [22]), the Minister considered the question whether or not it was in the national interest to cancel Mr Carrascalao's visa. After noting in [16] that this question "is separate and distinct from the question whether or not Mr CARRASCALAO passed the character test", the Minister stated at [17] that, in considering the national interest, he considered Mr Carrascalao's substantial criminal record. The Minister made express reference in this context to the sentencing judge's view that Mr Carrascalao's offending in 2007 was serious as was reflected in the 12-month prison sentence.
116 The Minister referred to other matters which he took into account in considering the national interest. His conclusion on that topic is set out in [21] of his reasons for decision:
21. I concluded that the cancellation of Mr CARRASCALAO's visa on the basis of his criminal history and suspected membership of a group suspected of being involved in criminal conduct suspected membership of a group suspected of being involved in criminal conduct [sic] is in the national interest insofar as excluding such persons from the Australian community will contribute to national law enforcement efforts to disrupt and disable such groups.
117 As noted above, in the final section of his statement of reasons, under the heading CONCLUSION, the Minister expressly stated in [47] (see [26] above) that he reasonably suspected that "Mr Carrascalao did not pass the character test by virtue of section 501(6)(b) and I am satisfied that it is in the national interest to cancel his visa" (emphasis added). The absence of any reference to s 501(6)(a) in this concluding paragraph to the Minister's reasons, or to the Minister's earlier findings concerning that limb of the character test as set out in his statement of reasons, is notable (contrast the corresponding paragraph in the Minister's statement of reasons relating to Mr Stevens which is set out in [34] above and includes an explicit reference to both limbs of the character test). This omission, together with some other relevant considerations referred to shortly, lead to the conclusion that, for the purposes of ss 501(3)(b) and (c) (i.e. the power to cancel a visa if the Minister reasonably suspects that the person does not pass the character test) the Minister based his ultimate conclusion to cancel Mr Carrascalao's visa on only the second limb of the character test as set out in s 501(6)(b). The Minister did not rely on the first limb of the character test in s 501(6)(a) for these particular purposes.
118 That is not to say that s 501(6)(a) played no role in the Minister's decision-making. It plainly did, as is reflected in the findings relating to that limb which are set out in [8], [17] and [21] of the Minister's statement of reasons. It is evident, however, that while the first limb of the character test was used by the Minister as part of his consideration as to whether or not, for the purposes of s 501(3)(d), he was satisfied that cancellation of Mr Carrascalao's visa was in the national interest, this limb was not ultimately relied upon by the Minister for the particular purposes of s 501(3)(b) and (c). For those particular purposes, the Minister was content to rely on his findings concerning the other limb of the character test, as is reflected in [47] of his statement of reasons. This analysis is supported by the Minister's express recognition, as reflected in [16] of his statement of reasons in the section dealing with the national interest, that the question of the national interest "is separate and distinct from the question of whether or not Mr CARRASCALAO passes the character test".
119 To the extent that the Issues Paper is relevant in understanding the Minister's statement of reasons (and this is not to suggest that it necessarily is) it casts no different light on how the Minister's reasons should be read and understood.
120 Accordingly, for these reasons, the Minister's ultimate decisions to cancel the visas of both Mr Taulahi and Mr Carrascalao were directly based on the second limb of the character test and not on the first limb. The first limb of the character test was relied upon by the Minister in respect of Mr Carrascalao as an aspect of the Minister's assessment of the national interest but not for the different purposes of s 501(3)(b) and (c).
121 Against the background of those findings, it is convenient to consider the challenges by both Mr Taulahi and Mr Carrascalao to the Minister's reliance upon s 501(6)(b) in cancelling both their visas.
122 Under s 501(3)(b), the Minister is empowered to cancel a visa if the Minister "reasonably suspects the person does not pass the character test" and "the Minister is satisfied that the… cancellation is in the national interest". The power can only be exercised by the Minister personally (s 501(4)). The rules of natural justice do not apply to such a cancellation decision (s 501(5)).
123 The circumstances in which a person does not pass the character test are set out in s 501(6). Relevantly in both proceedings, they include, in paragraph (b) of that provision as in force at the relevant time, that the Minister:
… reasonably suspects:
(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in the criminal conduct …
124 That wording of s 501(6)(b) was inserted in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (the 2014 Amendment Act). The earlier form of the provision, which was the subject of the Full Court's decision in Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; 163 FCR 414 (Haneef), identified circumstances in which "the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct". In Haneef, the Full Court (Black CJ, French and Weinberg JJ) held that the visa holder's "association" referred to in s 501(6)(b) is an association involving some sympathy with, or support for, or involvement in, the criminal conduct of another person, group or organisation and that the association must be such as to have some bearing upon the visa holder's character.
125 In Roach [2016] FCA 750, Perry J considered the effect of the 2014 Amendment Act on this aspect of Haneef. Her Honour concluded that the reasoning in Haneef at [121]-[123] no longer applied to the amended provision to the membership limb in s 501(6)(b). Her Honour concluded at [142] of Roach that the membership limb operated in effect as a "deeming provision" whereby a person suspected of being a member of a group or organisation which is suspected of being involved in criminal conduct will fail the character test in the same way that, for example, a person would "automatically" fail the character test if sentenced to a term of imprisonment in excess of the specified minimum period. In reaching this conclusion, her Honour had regard to relevant parts of the Explanatory Memorandum which introduced the 2014 Amendment Act:
145 Finally, the construction which I have reached by reference to the ordinary meaning of the provision is confirmed by the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (see s 15AB(1)(a) of the Interpretation Act). Specifically, at paragraph 41, the Explanatory Memorandum explained that:
The intention of this amendment is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. The intention is that membership of the group or organisation alone is sufficient to cause a person to not pass the character test. Further, a reasonable suspicion of such membership or association is sufficient to not pass the character test. There is no requirement that there be a demonstration of special knowledge of, or participation in, the suspected criminal conduct by the visa applicant or visa holder. (emphasis added)
146 While the decision in Haneef is not expressly referred to in the Explanatory Memorandum, it is apparent from this passage that the intention was to override the decision in Haneef to the extent that a person was suspected of being a member of the group or organisation, as opposed to having an association with it of the kind which required some degree of complicity in the group or organisation's criminal conduct. Contrary to the applicant's submission, I do not consider that that explanation of the intended operation of s 501(6)(b) is inconsistent with the general statement in the Second Reading Speech that the 2014 Amendment Bill as a whole reflected the "government's and the Australian community's low tolerance for criminal, non-compliant or fraudulent behaviour by those who are given the privilege of holding a visa to enter and stay in Australia."
126 It is against that background that consideration is to be given to the relevant grounds of review, which relate to [7], [10] and [15] of the Minister's statement of reasons in Taulahi and [12], [15] and [21] of the Minister's statement of reasons in Carrascalao. In both cases, the first two of those three paragraphs contain the Minister's adverse findings on the character of each of these Applicants respectively (see s 501(3)(c) and s 501(6)(b)(i) and (ii) of the Migration Act), while the third paragraph sets out the Minister's findings on the national interest (s 501(3)(d)). It is notable that, in both statements of reasons, in finding that Mr Taulahi and Mr Carrascalao did not pass the character test, the Minister found that he reasonably suspected that each of them:
(a) has been or is a member of an identified motorcycle gang; and also that
(d) the identified motorcycle gang has been or is involved in criminal conduct.
127 Both these findings were expressed disjunctively, as is reflected in the use of the term "or".
128 In stating his findings on character, the Minister did not state that, at the time of his decisions to cancel the visas, he reasonably suspected that:
(a) either Applicant had been a member of the specified motorcycle gang and remained a member of that gang; or
(a) the particular gang had been and continued to be involved in criminal conduct.
129 When the Minister then explained in the third of the relevant paragraphs of the respective statements of reasons why he was satisfied that it was in the national interest to cancel the visa of each of these Applicants, he stated that he was so satisfied "on the basis of [each Applicant's] suspected membership of a group suspected of being involved in criminal conduct" (see [15] in Taulahi and [21] in Carrascalao) (emphasis added).
130 The reference to the "basis" of the Minister's satisfaction that it was in the national interest to cancel the visas is plainly a reference to the Minister's earlier findings as set out in the statements of reasons regarding the Applicants' respective characters.
131 The natural reading of the Minister's statements in [15] in Taulahi and [21] in Carrascalao, particularly the use of the expression "being involved", strongly suggests that the Minister was referring to current membership and current involvement by the relevant gang in criminal conduct. As both Applicants pointed out, such a reading is also consistent with the Minister's reasoning that removal of the two men from Australia would contribute to efforts to "disrupt and disable" the identified outlaw motorcycle gangs. Plainly, that objective is more likely to be achieved if the person who is being removed from Australia is a current member of one of those gangs.
132 These grounds of review in both Taulahi and Carrascalao turn upon the lack of symmetry or disconformity between these findings. There is some disconformity between the Minister's findings concerning the character of Mr Taulahi and Mr Carrascalao and his subsequent findings concerning their removal being in the national interest. This disconformity relates to the fact that the Minister's conclusion that it was in the national interest to cancel the visas was stated to be on the basis of the suspicion that:
(a) at the time of the Minister's decision Mr Taulahi and Mr Carrascalao were current members of a specified outlaw motorcycle gang; and
(b) at the time of the Minister's decision, those gangs were currently involved in criminal conduct.
133 There would be no disconformity in the Minister's statements of reasons if he had found that Mr Taulahi and Mr Carrascalao did not pass the character test because the Minister reasonably suspected that, at the time of the relevant decision, the relevant Applicant had been and remained a member of an outlaw motorcycle gang and that, also at the time of the decision, he reasonably suspected that the relevant gang had been and continued to be involved in criminal conduct. But those are not the findings which were made by the Minister in either of these matters.
134 The heart of the disconformity lies in the fact that the Minister left open which aspect of the character limb actually applied because he said that it was either one or the other in terms of past/current membership as well as the gangs' past/current involvement in criminal conduct. The Minister did not state that he had a reasonable suspicion in relation to past and present membership and past and present involvement by the relevant gang in criminal conduct. Accordingly, if it be the case that the Minister's relevant findings were confined to a reasonable suspicion that both Mr Taulahi and Mr Carrascalao were past members of outlaw motorcycle gangs and that the gangs had in the past been involved in criminal conduct, those findings would provide no basis for the Minister's stated conclusion that it was in the national interest to cancel the visas because of the Applicants' suspected current membership and the gangs' suspected involvement in current criminal activities.
135 Rejected is the Minister's submission that, on a fair reading of the statements of reasons, the Minister found that he reasonably suspected that the Applicants had been and still were members of outlaw motorcycle gangs and that the gangs had been and still were involved in criminal conduct. The explicit language of the relevant paragraphs of the statements of reasons is inconsistent with that submission.
136 Nor is the submission advanced by the Minister's reliance on the contents of the Department's Issues Papers to the Minister. Both Issues Papers contained the following advice ([26] in Taulahi and [35] in Carrascalao) (emphasis added apart from references to Attachments):
26. Having regard to the open source material mentioned above and the protected information contained in Attachment ZZ, and the information contained in Attachment C, it is open to you to reasonably suspect that Mr TAULAHI does not pass the character test by virtue of section 501(6)(b) in that you may reasonably suspect that Mr TAULAHI has been or is a member of a group, and that the group has been or is involved in criminal conduct.
35. Having regard to the open source material mentioned above and the protected information contained in Attachment Z, it is open to you to reasonably suspect that Mr CARRASCALAO does not pass the character test by virtue of section 501(6)(b) in that you may reasonably suspect that Mr CARRASCALAO has been or is a member of a group, and that the group has been or is involved in criminal conduct.
137 It is evident that the Issues Papers, which are themselves expressed in the alternative, provided the foundation for the Minister's findings which are expressed in substantially similar terms.
138 In his submissions in this Court, the Minister also relied upon the fact that the Issues Papers contained material which drew the Minister's attention to photographs and other matters which indicated that Mr Taulahi and Mr Carrascalao had some association or involvement with the relevant outlaw motorcycle gangs at various times in the past. But these materials predated the Minister's decision by at least 12 months. They provide no reasonable basis to support a reading of the Minister's statement of reasons regarding character as containing a definitive finding of fact that, at the time of the Minister's decision, both remained members of an outlaw motorcycle gang. Similarly, although the Minister's attention was drawn by his Department to materials from the Australian Crime Commission, media articles and the activities of Operation Morpheus (which was established in 2014 by the Serious and Organised Crime Coordination Committee), none of these references provided any evidence of matters as they stood at or reasonably near the time of the Minister's decisions.
139 The next relevant issue is whether this disconformity involves jurisdictional error. This in turn raises an issue of statutory construction, namely whether it is open to the Minister to reason that he is satisfied that it is in the national interest to cancel the Applicants' visas based upon their current membership of a relevant outlaw motorcycle gang and that gang's current involvement in criminal conduct, while relying on earlier findings made by the Minister concerning the relevant individual's character which are expressed in terms of alternative findings concerning past or current membership and past or current involvement in criminal conduct, without making a definitive finding as to which of those alternatives applied or whether they both did.
140 For the following reasons, it is concluded that the approach taken by the Minister in both proceedings involved jurisdictional error.
141 First, as these proceedings vividly demonstrate, the exercise of the Minister's powers to cancel a person's visa under s 501(3) has serious consequences not only for the visa holders but also for their family members, some of whom in these two matters are Australian citizens. Accordingly, the proper construction of the relevant statutory provisions should take account of the principle of legality. That principle was helpfully described by Gleeson CJ in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 at 577 (footnotes omitted):
19 Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness".
20 A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.
142 Although Gleeson CJ's statement of principle was directed to an executive power the exercise of which resulted in indefinite detention, the principles are equally applicable to the power conferred upon the Minister in s 501(3) and the related provision in s 501(6) of the Migration Act (see also Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437-8 per Mason CJ, Brennan, Gaudron and McHugh JJ; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [58] and Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [312]-[313] per Gageler and Keane JJ).
143 In Haneef, the Full Court considered that the principle of legality applied to the proper construction of s 501(6)(b) of the Migration Act in the form that it stood at that time. Their Honours said:
107 It is an important principle that Acts should be construed, where constructional choices are open, so as not to encroach upon common law rights and freedoms. An early, well known and still authoritative statement of that principle is found in Potter v Minahan (1908) 7 CLR 277 which was a case involving the Immigration Restriction Act 1901 (Cth). O'Connor J quoted from the 4th Edition of Maxwell's Interpretation of Statutes (1905, Sweet & Maxwell) (at 304):
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.
See also Bropho v State of Western Australia (1990) 171 CLR 1 at 18; Coco v The Queen (1994) 179 CLR 427 at 437.
144 Despite the amendments in 2014 to s 501(6)(b), it is considered that the principle of legality still applies in the proper construction of the provisions. Accordingly, it is not open to the Minister to avoid making definitive findings in respect of the various elements of the two conditions in s 501(6)(b) relating to the character test. Properly construed, and having regard to the particular circumstances here, the character test requires the Minister to make a definitive finding as to whether he or she reasonably suspects that the visa holder has been a member of a group or organisation or whether that person is currently a member of a group or organisation. In an appropriate case, the Minister may also make definitive findings that he or she reasonably suspects that the visa holder has been and remains a member of a group or organisation, but that is not what occurred here. Likewise, s 501(6)(b)(ii) properly construed requires the Minister to make definitive findings as to whether he or she reasonably suspects that the group or organisation of which the visa holder has been and/or is a member has been or is involved in criminal conduct. Again, in an appropriate case, the Minister might reasonably find that the group has been and continues to be involved in criminal conduct, but that is not the case in either proceeding here.
145 It may be accepted that the phrase "reasonably suspects" as it appears in both ss 501(3)(c) and 501(6)(b) lowers the threshold in respect of the operation of the character test precondition to the exercise of the Minister's cancellation power under s 501(3)(b) of the Migration Act. It is, however, concluded that there is no proper foundation for lowering that threshold even further by absolving the Minister from the obligation of having to make clear and definitive findings in respect of the relevant components or elements of s 501(6)(b). In other words, properly construed, the relevant provisions required the Minister to nail his colours to the mast in the cases of both Mr Taulahi and Mr Carrascalao.
146 Secondly, even though the Minister's power to cancel a visa under s 501(3)(b) is dependent upon two separate preconditions, namely those set out in s 501(3)(c) and (d), there may be an overlap between those two preconditions. That is well illustrated by the circumstances here because, as noted above, in both matters the Minister used the findings he had made in respect of the first precondition (i.e. character) to inform, at least in part, his finding concerning the second precondition (i.e. national interest). It is important, therefore, that the earlier findings be clear and certain because, if they are to be relied upon in the Minister's assessment of the second precondition, the Minister needs to have a clear understanding and appreciation of those findings. For example, the Minister's assessment of whether visa cancellation is in the national interest may depend upon whether he has found that he reasonably suspects that the visa holder was in the distant past a member of an outlaw motorcycle gang but no longer is such a member, or that the motorcycle gang itself was in the distant past, but no longer is, involved in criminal conduct. It is not difficult to appreciate that the Minister's assessment of the national interest could be significantly affected by the precise nature of his findings concerning his reasonable suspicions in relation to the character test precondition.
147 Thirdly, it is relevant to take into account the potential operation of s 501C in construing the relevant provisions in s 501(3) and (6). The terms of s 501C are set out in [38] above. Relevantly, where the Minister has made a decision to cancel a visa under s 501(3) (as was the case in both these proceedings), he is obliged to give the visa holder a written notice that sets out the Minister's cancellation decision and particulars of "relevant information" as defined in s 501C(2). He or she must also invite the visa holder to make representations to the Minister concerning the possible revocation of the cancellation decision. Those representations are directed solely to the question whether or not the Minister should be satisfied that the character test is met: i.e. not to the other precondition relating to the national interest (see Roach at [93]).
148 This is an important aspect of the legislative scheme which, in effect, imposes some procedural fairness requirements at the stage of the Minister's consideration of the question whether to revoke a cancellation decision, even though there are no mandatory procedural fairness requirements in the process leading up to the making of the cancellation decision. The Minister did not dispute that, if a visa holder makes representations in accordance with the Minister's invitation and the person satisfies the Minister that the person passes the character test (notwithstanding that the Minister must have previously found that he reasonably suspected that the person did not pass the character test), the Minister must revoke the cancellation decision. For this process to be meaningful, however, and noting that (as in the case of these two proceedings) there may be "protected information" (or "secret information") which need not be divulged to the affected person, it is critical that the person know which specific aspects of the character test precondition the Minister has relied upon in deciding to cancel the person's visa. The person needs to know that information in order to make meaningful representations as to why, contrary to the Minister's earlier suspicion, the person does in fact pass the character test. Thus, the person needs to know whether the Minister has concluded that the person does not pass the character test because the Minister reasonably suspects that:
(a) the person has been a member of a specified outlaw motorcycle gang; and/or
(b) the person still is a member of such a gang; and/or
(c) the gang was involved in criminal conduct; and/or
(d) the gang still is involved in criminal conduct.
149 That is not to say that the Minister cannot find that he or she is reasonably satisfied that all these matters are met in the particular circumstances of a given case. But that is not what happened here. As emphasised above, the information provided to each Applicant was asymmetrical regarding the matters underpinning the Minister's conclusion as to why he was reasonably satisfied that the conditions relating to both the character test and national interest were met in this case.
150 For these reasons, it is concluded that the relevant parts of the Minister's statements of reasons in both proceedings, fairly read, disclose a misconception on the Minister's part (encouraged by the Department's Issues Papers) concerning the findings which he had to make if the statutory requirements relating to the character test in s 501(6)(b) were met. This misconception, which presumably arose from a misconstruction of the relevant legislative provisions, also infected the Minister's findings concerning the national interest. These errors, it is considered, were fundamental and material to the Minister's decision to cancel the Applicants' visas under s 501(3). The result of this misconception relating to the proper construction of the relevant legislative provisions is that "there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3)" (see Ex parte Taylor at [196] per Gummow and Hayne JJ (with whose reasons Gleeson CJ and Gaudron J agreed)).