Zaburoni v Minister for Immigration and Border Protection

Federal Court of Australia (Full Court)|2017-12-11|Before: Bromwich JJ

Leave be refused for the appellant to rely on the affidavit of Ms Alexandra Stratigos dated 17 November 2017.
The appeal be dismissed.
The appellant pay the respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This is an appeal from a decision which is reported as Zaburoni v Minister for Immigration and Border Protection [2017] FCA 654. The primary judge dismissed the appellant's judicial review application which challenged the Minister's decision to cancel his visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). 2 For the reasons that follow the appeal will be dismissed, with costs.

The Minister's reasons for cancelling the visa 10 On 12 September 2016, the Minister decided to cancel Mr Zaburoni's visa under s 501(2) of the Act. The Minister provided a statement of reasons for this decision (Reasons). They may be summarised as follows. 11 In his Reasons, the Minister summarised at some length the submissions and supporting material provided by Mr Zaburoni. 12 The Minister considered Mr Zaburoni's conduct as referred to in [4]-[5] above. The Minister had regard to material which revealed that Mr Zaburoni lied to "the victim" about his HIV-positive status and knowingly had unprotected sexual intercourse with her on multiple occasions, thereby exposing her to a risk of contracting HIV. He found Mr Zaburoni's disregard for the welfare of his ex-partner to be "abhorrent" and that it exposed her to a lifelong illness. He found Mr Zaburoni's conviction for grievous bodily harm to be "very serious". 13 In 2005, Mr Zaburoni was required to provide a blood test in order to satisfy the health requirement of his partner visa application. He arranged for a friend to take the blood test on his behalf. As a result, he passed the health requirement and was granted a partner visa. The Minister found that this conduct was "a serious breach of trust" and indicative of Mr Zaburoni's poor character. 14 Under the heading "Risk to the Australian Community", the Minister: (a) Considered the material in the reports provided by the psychologist, the doctor, the manager of the Western Suburbs Haven and Queensland Positive People, as well as a submission that eight years had passed since his offending and that this should be taken as an indication of his rehabilitation. (b) Accepted that Mr Zaburoni has a better understanding of the severity of his medical condition and the impact of his actions on his ex-partner and on future sexual partners and that he now discloses his HIV status to sexual partners. (c) Noted Mr Zaburoni's commitment to never repeat his conduct; his relationship with his partner of four years and the support he derives from it; that Mr Zaburoni had continued to work on his rehabilitation through his voluntary work at the Haven and ACON; that he wants to reduce the stigma and discrimination of being HIV positive and empower others to learn from his mistakes; that he has no prior criminal convictions and has not been convicted of further offending since his release from custody. (d) Rejected Mr Zaburoni's representative's assertion that his offending was "an isolated incident" as he had had repeated and unprotected sexual relations with his ex-partner while knowing he was HIV positive, exposing her to serious harm. The Minister also found that, prior to her diagnosis, Mr Zaburoni's ex-partner could potentially have placed other members of the community at risk of contracting HIV. 15 The Minister stated at [41] to [45] of the Reasons: 41. I find that Mr ZABURONI's offending showed disregard for the welfare of his then partner and resulted in great harm for the victim who was subsequently diagnosed as HIV positive and is now subject to lifelong treatment for this condition. I have also considered that Mr ZABURONI's offending had the potential to cause great harm to the wider community. 42. In assessing the likelihood of Mr ZABURONI re-offending, I have considered that since 2010, he has managed his HIV with ongoing antiretroviral medication, has demonstrated greater social responsibility and has demonstrated progress towards his rehabilitation. 43. Notwithstanding this progress, I have regard for [the psychologist's] opinion that although there is a low risk of Mr ZABURONI placing others at risk of contracting HIV, he cannot be considered a zero risk because previous behaviour is a predictor of future behaviour. 44. I therefore find that there is an ongoing risk that Mr ZABURONI will re-offend, albeit a low risk. 45. If Mr ZABURONI did engage in further criminal conduct of a similar nature, it could result in conduct that could cause psychological and/or physical harm to a member of the Australian community. 16 Under the heading "Expectations of the Australian community", the Minister said that he was mindful of "the principle that the Australian community would expect that noncitizens who commit serious crimes in Australia can and should have their visas cancelled". The Minister noted submissions made on Mr Zaburoni's behalf that the government should consider community standards as they adapt and change, and that the Australian society is founded on the idea of a "fair go". This would extend to giving a fair go to someone who had rehabilitated and become a person wanting to move forward and contribute positively to society. However the Minister noted the circumstances of Mr Zaburoni's conviction and stated that the offending "shows disregard for the welfare of his then partner and for the broader community". He added that "[t]he Australian community would expect that Mr ZABURONI as a non-citizen would obey Australian laws, and as he has breached that trust and been convicted of a serious offence in Australia, it may be appropriate to cancel his visa". 17 In relation to the topic of "International non-refoulement obligations", the Minister noted that Mr Zaburoni was able to make a valid application for another visa and was not prevented by s 48A of the Act from making an application for a protection visa. Thus he found that "it is unnecessary to determine whether non-refoulement obligations are owed to Mr Zaburoni for the purposes of this decision" under s 501(2). 18 In relation to the topic of "Ties to Australia", the Minister accepted that Mr Zaburoni has established roots in Australia and noted his work as an acrobat, his service as a disability support worker with various organisations and his voluntary work. The Minister also accepted that Mr Zaburoni has family ties in Australia. He noted Mr Zaburoni's relationship with his partner of over four years, their desire to marry and start a family and that procedures to allow them to have children safely and ensure that the partner does not contract HIV may not be affordable or available in Zimbabwe. The Minister said that he had considered that Mr Zaburoni's partner may face a difficult decision whether or not to follow him to Zimbabwe if he were to be removed. He noted her parents' concern that she will be settling in a foreign country with a profoundly different culture and lifestyle with healthcare that is not equivalent to the standard available in Australia. The Minister accepted that Mr Zaburoni's partner would experience emotional and possibly financial hardship and that Mr Zaburoni had been making a positive contribution to the community through his employment and volunteer work. He found that cancellation of Mr Zaburoni's visa would not significantly compromise the delivery of a major project or important service in Australia, contrary to the submission that Mr Zaburoni's performance skills are unique and would be a great loss for the growing performance industry in Australia. 19 The Minister found that Mr Zaburoni may suffer hardship associated with unemployment and may have difficulty accessing antiretroviral medication in Zimbabwe but there were no cultural or language barriers that would impede his resettlement in Zimbabwe. The Minister noted and said that he took into account Mr Zaburoni's concerns that he and his family would be ridiculed and socially ostracised because of his HIV status. 20 The Minister's conclusions are reflected in [70]-[77] of the Reasons (without alteration): CONCLUSION 70. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act and (2) all other information available to me, including information provided by, or on behalf of Mr ZABURONI. 71. Mr ZABURONI has committed a very serious crime that of grievous bodily harm, and Mr ZABURONI and non-citizens who commit such an offence should not generally expect to be permitted to remain in Australia. 72. I find that the Australian community could be exposed to great harm should Mr ZABURONI re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr ZABURONI. The Australian community should not tolerate any further risk of harm. 73. I found the above consideration outweighed the countervailing considerations in Mr ZABURONI's case, including the impact on his partner and non-refoulement obligations if they exist. 74. I have also considered the length of time Mr ZABURONI has made a positive contribution to the Australian community through his employment and volunteer work, including his work to educate people about HIV/AIDS through his life experience. 75. I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. 76. In reaching my decision I concluded that Mr ZABURONI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above. 77. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr ZABURONI's Partner (Residence) Visa (Class BS) (Subclass 801) under s501(2) of the Migration Act.

The primary judge's reasons summarised 21 Mr Zaburoni's judicial review application initially raised three grounds which may be summarised as follows. 22 First, the Minister's cancellation decision was unreasonable in the legal sense, partly because it was asserted that there was no evidentiary basis for the assumptions underlying the Minister's conclusion that there was an ongoing risk that Mr Zaburoni would reoffend and expose the Australian community to great harm. 23 Secondly, the Minister made either an error of law on the face of the record and/or a jurisdictional error by failing to give effect to the proper meaning of the discretionary power under s 501(2). The error was said to lie in the Minister's failure to give "proper, genuine and realistic consideration" to the various countervailing circumstances put forward by Mr Zaburoni in favour of the Minister deciding in his discretion not to cancel his visa and by the overwhelming weight given to the Minister's findings regarding the risk of reoffending. 24 Thirdly, Mr Zaburoni claimed that the Minister fell into jurisdictional error because: (a) he applied the wrong test in exercising his power by approaching the matter from a stated intention to remove people such as Mr Zaburoni wherever possible; and (b) the Minister's statements in two radio interviews gave rise to apprehended bias, particularly in circumstances when they were made before Mr Zaburoni received a notice of intention to cancel his visa and before he had had an opportunity to provide the Minister with submissions in support of non-cancellation. 25 It is convenient to summarise the primary judge's reasons for rejecting each of these three grounds.

(a) Legal unreasonableness 26 The primary judge rejected Mr Zaburoni's contention that the Minister's decision to cancel his visa was unreasonable in the legal sense as established in cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437. 27 The primary judge noted that there were some differences in the evidence of both the doctor and the psychologist regarding the risk of Mr Zaburoni reoffending but her Honour found at [40] that it was a matter for the Minister, as the primary decision-maker, to decide whose opinion he preferred on this matter. While acknowledging that the Minister might have come to a different view, the primary judge said that it was a matter within the area of the Minister's freedom of decision-making to determine the weight to be given to the low risk of Mr Zaburoni reoffending and the harm that might flow to the Australian community if he did re-offend, when compared with other countervailing circumstances which favoured non-cancellation.

(b) Misconstruction of s 501(2) of the Act 28 The primary judge found that, viewing the Reasons as a whole, the Minister did engage actively with submissions made on Mr Zaburoni's behalf as to the "countervailing circumstances" favouring non-cancellation, including the reports by the doctor and psychologist, his ties to the Australian community and the possible impact of cancellation on Mr Zaburoni, his partner and his family. At [47] of her Honour's reasons for decision, the primary judge described as "odd" the Minister's statement in [75] of the Reasons that "I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel a visa". Her Honour observed that this had the flavour of an "inflexible policy", but she said that the paragraph had to be read in the context of all the Reasons. Applying that approach, the primary judge rejected the contention that the Minister's reasoning could be reduced to a simple statement that the risk of re-offending (no matter how small) always outweighed countervailing circumstances.

(c) Apprehended bias 29 As noted above, the Minister's public remarks over the radio concerning Mr Zaburoni's case provided the foundation for his claim of apprehended bias. A recording of the relevant parts of the interviews was played to both the primary judge and the Full Court. 30 In the course of the first interview, on 21 April 2016, the Minister discussed the following topics with a Mr Ray Hadley - the gaoling of a person convicted of people smuggling; the stopping of a boat by the Sri Lankan navy and Australia's arrangements with Sri Lanka concerning that activity; the deportation of a non-citizen who had been convicted of the manslaughter of a police officer; an Irish national who had been convicted of assault; and domestic politics (particularly in Queensland). Following the discussion concerning the man convicted of manslaughter of the police officer, the Minister made the following remarks (noting that, to give a more accurate picture of the Minister's comments, the primary judge amended the verbatim transcript to indicate by the words "(ah)" and "(um)" where the Minister paused in his remarks): Mr Dutton: Well, Ray, (ah) firstly, it's (ah) it's a good thing (ah) that (ah) these people have gone. Our community is a safer place for not having these criminals (ah) walking around amongst us. So the work we're doing, (ah) and we've spoken about it a lot over the course of the last 12 months, a lot of work we're doing in cancelling visas of people who are here as non-citizens, they commit crimes and our numbers are up by hundreds of percent over the last 12 months. (ah) I'm really proud that we've been able to (ah) kick out some pretty serious criminals, who I think would have reoffended. Now, the difficulty, of course, is (ah) that we've got a generous legal system, there's lots of (ah) pro bono work around, lawyers that (ah) do work for free in this area and the Commonwealth spends millions of dollars each year. In fact I think I'm the most litigated person in the Commonwealth, (ah) the Minister for Immigration gets sued all the time, (ah) we get injuncted and we fight these cases. (ah) In the end, (ah) in many of them we're successful and that's been the case in relation to this matter. (ah) This person has gone back and good riddance really, I think we're a better place without them. 31 Later in the interview, following discussion of issues concerning the Irish national who could not be located, the following exchange occurred: Mr Dutton: Well Ray, (ah) it's hard again to talk about individual cases until they're finalised, but (ah) many people will come on a tourist visa, (ah) some may come on a working visa, they may come on a partner visa. (ah) So we obviously have millions of people moving across our borders each year and we scrutinise (ah) applications as best we can (ah) within the law. We do a lot of work with intelligence and law enforcement agencies, (ah) but some people come across our borders (ah) who are intent on doing the wrong thing and (ah) in these cases (ah) we work with the police authorities to try and track (ah) individuals down and there are different ways in which we can try and locate people and (ah) if it's (ah) possible, and very quickly, cancel their visas and deport them. So it will depend on the individual (ah) circumstances, to what visa they came on but (um) we have pretty significant powers under the Migration Act to cancel visas of people that have committed crimes or that have done the wrong thing by Australians. Mr Hadley: Now, in relation to this bloke, one would imagine he probably got some sort of work visa or holiday visa. Once he's caught, served the 12 months, it would almost be a fait accompli, you'd just pack him off, wouldn't you? Mr Dutton: If there's a 12 month (ah) sentence, then it'll be an automatic (ah) revocation of his visa because he fails the character test. If he's (ah) involved in a (ah) motorcycle gang, (ah) if he's a child sex offender, there are a number of ways (ah) in which and, you know, we've cancelled over I think almost about eleven hundred in the last 12 months from memory - so a pretty significant number and again I want to ramp that number up over the next year. (um) And I think this has been one of the really significant achievements (ah) of this government; we've been able to make our society a safer place and that's what getting control of our borders is about. (ah) We want to welcome people that want to come here, spend money, do business, (ah) we want to welcome them in record numbers, but (ah) we want to at the same time cancel visas of people that aren't going to do the right thing. 32 The final exchange in the first interview relating to Mr Zaburoni's case was as follows: Mr Hadley: Okay, just one final one; this circus acrobat that we have spoken about previously, Godfrey Zaburoni. The High Court upheld the appeal, which I can't understand, that he didn't deliberately or intentionally infect his former partner with HIV despite the fact that he had unprotected sex with her and she didn't know he was HIV positive. He is now going to be resentenced. He has already been in for three years and it is obvious that, come I think Friday or early next week, he will be released. He got an Australian visa 16 years ago. What do you do with him? Can he be sent back to Zimbabwe from whence he came? Mr Dutton: Well I don't, again, I don't want to prejudice a case, but this guy (ah) on what I, on what I've seen publicly is just a grub from start to finish. And (ah) I think we need to have a very close look (ah) at this case with the police. We will wait and see what happens with sentencing and all of the rest of it. But people, again, without commenting on an individual case, if you look at (ah) these sort of facts in a case it (ah) it makes it pretty compelling for us to cancel visas but I want to have a look at it (ah, um) in detail because (ah) we'll see what options are there and again, (um) we don't want people of bad character here. We want to welcome with open arms good people who visit our country, (ah) but we are going to continue to clampdown very hard on criminals and people who really do a great deal of harm to people in the Australian society. Mr Hadley: I don't expect you to put yourself at odds with the High Court and nor would I. BUT I would simply repeat what I said before. When they upheld his appeal, finding he didn't intentionally infect his former partner with HIV, given he knew that he had HIV, didn't tell her he had HIV, had unprotected sex with her, I don't know where intentional doesn't form part of what the High Court should be all about. I was just stunned by the decision, I can't believe the decision. Mr Dutton: Yeah, look mate, I, I think (ah) people will make their own judgements when they look at (ah) these cases and no doubt they can provide their feedback (ah) to wherever it might be; the courts or wherever else (ah) but (ah) you and I get into trouble all the time for talking about court cases, where we're completely (ah) at odds with, (um) you know, just, just disbelieving of outcomes. But (um) look I (ah) I think (ah) this case is obviously still before the courts, so let's hope, (ah) let's hope it's a sensible outcome. 33 The Minister participated in a second radio interview with the same interviewer on 9 June 2016. The following conversation occurred in respect of another person who had been convicted of child sex offences and was liable to have his visa cancelled, but in the course of the conversation reference was made to Mr Zaburoni: Mr Dutton: Yeah well Ray, you'll remember (um) over a number of (ah) interviews we've discussed (ah) the changes that we've made to the legislation which makes it easier for (ah) the Minister of the day to cancel visas (ah) on a character basis. So if people fail [the] character test we can cancel their visas and send them back to their country of origin. Now, this person will be automatically cancelled under the character provisions, (ah) will be taken into immigration detention and then deported. Obviously there's a review process that they can go through and appeal and (ah) whatever legal opportunities are open to them, but, (ah) there's an automatic cancellation for people that have been convicted of child sex offences and (ah) indeed over (ah) the period that (ah) that I've been Minister I think we've (ah) cancelled (ah) the visas of almost 60 people that've been charged with rape and sexual offences (ah) and (ah) and we're looking through lots of cases, working with the police, (ah) to cancel more because we, we will save future victims and we will prevent crime from happening by deporting these people. They're here as guests of our country, they're non-citizens and if they commit these sorts of heinous crimes they can expect to have their visas cancelled and to be deported. Mr Hadley: Now the other one I've spoken about is a Gold Coast circus performer found guilty of intentionally infecting his girlfriend with HIV, 37-year-old Godfrey Zaburoni, diagnosed with HIV in 1998 when he was performing with a touring circus in Adelaide. He was then sentenced to nine years in gaol in 2013, but, inexplicably, the High Court overturned that decision back in April saying he didn't intentionally infect the girl despite the fact she didn't know he was HIV positive. Last week he was re-sentenced to five years imprisonment for the lesser charge then released immediately because he'd been in gaol for three years and two months. I know you've been looking at whether Zaburoni will face deportation back to his native Zimbabwe, have you made a decision on him? Mr Dutton: (ah) Ray, I haven't (ah) as yet because (ah) the Department obviously is going through the process at the moment and it (ah) imagine there's a (ah) there's a lot of (ah, ah) legal questions that need to be answered and the process is that a (ah) a notice would be served and then there's an appeal period and (ah) I'm a decision maker in relation to that particular case so I don't want to publicly comment on it, but (um) suffice to say (ah) I've followed the case very carefully, very closely, and (ah) I have a (ah) a very low tolerance (ah) frankly for people who are (ah) committing serious sexual offences against women, against children, against anyone and I think we've demonstrated (ah) over the last 12 months that we have been (ah) tough, within the law, to cancel visas (ah) wherever possible and deport people at record numbers and I'm waiting on this matter to come up (ah) to make (ah) to make a determination, but Mr Hadley: Okay. Mr Dutton: (ah) I'll be able to report back to you at some time soon. 34 After considering relevant authorities such as Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 (Jia Legeng) and Isbester v Knox City Council [2015] HCA 20; 255 CLR 135, the primary judge identified the relevant test for apprehended bias to be applied in this case at [72] as: … whether a fair-minded lay observer, informed of the discretion the Minister is called upon to exercise personally under s 501(2) of the Migration Act, might form the view (based on what the Minister said in the context of the two interviews broadcast on radio and the time in the decision-making process at which he said it) that the Minister might be so committed to a conclusion as to the exercise of his discretion in Mr Zaburoni's case that his mind would not be open to persuasion by evidence and arguments submitted by or on behalf of Mr Zaburoni. 35 The primary judge rejected Mr Zaburoni's submission that Jia Legeng is primarily a case dealing with actual bias, not apprehended bias and, therefore, had little relevance to Mr Zaburoni's case. Her Honour also rejected Mr Zaburoni's claims that the Minister's comments in his case were of a different quality from those of a previous Minister in Jia Legeng and that another significant difference was that the Minister's remarks in Mr Zaburoni's case occurred before Mr Zaburoni was aware of the Minister's intention to cancel his visa and before he had an opportunity to make submissions against that course. 36 The primary judge acknowledged that some of the Minister's remarks were "highly disapproving of Mr Zaburoni" and that the strength of some of his remarks gave "cause for a relevantly informed reasonable lay observer to conclude that Mr Zaburoni's task to persuade the Minister to exercise his discretion in Mr Zaburoni's favour was likely to be difficult". However, her Honour concluded at [81] that she did not accept that the Minister's remarks indicated a misunderstanding of his task under s 501(2) or revealed a mind which was not open to persuasion. Her Honour adopted and applied the observations of Gleeson CJ and Gummow J in Jia Legeng at [102] that the Minister was entitled to make public comments about a matter in respect of which he may consider exercising his powers without giving rise to an apprehension of bias. 37 The primary judge also rejected Mr Zaburoni's claims of apprehended bias based upon the Minister's broadcast remarks on 9 June 2016. Although her Honour was troubled by the strength and appropriateness of some of the Minister's remarks if they were viewed in isolation, her Honour concluded that the matters raised by Mr Zaburoni were insufficient to conclude that the Minister had either misconceived his statutory task under s 501(2) or that his mind was closed when he made those remarks.

The notice of appeal 38 The following three grounds were raised in the notice of appeal as originally filed (without alteration): 1. The judge erred in finding that the Minister's decision was not legally unreasonable. Particulars (a) Her honour erred in considering the evidence of the doctor and the psychologist as separate conflicting reports rather than considering the reports and totality of the evidence together as a whole. (b) Even should greater weight be placed upon the report of the psychologist, Pip Bowden, when considered in conjunction with other supporting evidence it shows that the only reasonable opinion is that there is no or an insubstantial risk that Mr Zaburoni would reoffend. 2. The judge erred in not accepting that the Minister had inflexibly applied a policy and thereby failed to exercise the required statutory discretion under s 501(2) of the Migration Act 1958 (Cth). Particulars (a) Her Honour Justice Farrell gave to statements of the Minister an interpretation that was not reasonably open to the court. (b) The minister stated that in his decision that "I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel a visa." (c) The only interpretation of this paragraph that the court was reasonably open to find was that the Minister was expressing the belief that any risk of reoffending will always outweigh even other strong countervailing considerations. 3. The judge erred in finding that the Minister was not afflicted by ostensible or apprehended bias. Particulars (a) Her Honour Justice Farrell in deciding that there was no ostensible or apprehended bias erred in applying the test for actual bias as opposed to ostensible or apprehended bias. (b) Her Honour concluded that the evidence submitted was not "sufficient to conclude that the Minister either misconceived his task under s 501(2) or that his mind was closed to any evidence or submissions that Mr Zaburoni might submit in response to the notice of intention to cancel his visa." (c) This is a finding that the Minister did not actually misconceive his task or close his mind to the submissions of Mr Zaburoni. This is not needed to find apprehended bias. (d) The test for apprehended or ostensible bias enunciated by Her Honour Justice Farrell is "whether a fair-minded lay observer, informed of the discretion the Minister is called upon to exercise personally under s 501(2) of the Migration Act, might form the view (...) that the Minister might be so committed to a conclusion as to the exercise of his discretion in Mr Zaburoni's case that his mind would not be open to persuasion by evidence and arguments submitted by or on behalf of Mr Zaburoni. (e) The fact that due to the two radio interviews, as Her Honour Justice Farrell found, the Minister "might feel constrained in the manner in which he might make a decision" shows that a fair minded lay observer might form the view that the Minister might close his mind to persuasion. 39 The appellant sought orders in the appeal which appear to reveal a fundamental misunderstanding of the differences between the trial and the appeal. The orders as sought by the appellant effectively invited the Full Court to step into the shoes of the primary judge and to grant the relief which he had failed to obtain below. (The same misunderstanding of the nature and scope of the appeal was evident in the appellant's oral submissions). Curiously, no order was sought that the appeal be allowed. Rather, the primary relief sought was that the application for judicial review be granted, and that the Full Court grant a writ of certiorari and an injunction. 40 Ground 1 of the appeal was not pressed. Hence it is unnecessary to say anything more about it.

(a) Appellant's application to adduce new evidence 41 At the commencement of the hearing, the appellant sought leave to rely on an affidavit dated 17 November 2017 sworn by his instructing solicitor, Ms Alexandra Stratigos. His counsel explained that the appellant wished to rely upon statements of reasons by either the Minister or Assistant Minister in six other visa cancellation decisions which contain words which are substantially similar to the words used by the Minister in [75] of his statement of reasons in this case. The appellant proposed to submit that this material supported his claim that there was an inflexible policy. 42 The Minister opposed the application. He submitted that the new evidence was intended to support a case which had not been run below and which might have been met by additional evidence in response if it had, citing Paul Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development [2017] FCAFC 15; 346 ALR 528 at [199] to [202] per Kenny, Robertson and Griffiths JJ. The Minister contended that the appellant's proposed case on appeal was wider than that which was run below. This was because the appellant now sought to rely upon external evidence from another six visa cancellation cases in support of his claim that there was an inflexible policy, rather than simply relying on the terms of the Minister's statement of reasons in the appellant's case. The Minister also pointed out that the appellant had not complied with the requirements of r 36.57 of the Federal Court Rules 2011 (Cth), particularly the 21 day notice period. The Minister had no objection to the appellant relying upon ground 2 in his notice of appeal, as addressed in the appellant's outline of written submissions, but he submitted that the Court should confine the appellant to that case and not permit him at this late stage to run a new case. 43 The Court refused leave for the appellant to rely upon Ms Stratigos's affidavit. Its reasons for doing so reflect the summary of the Minister's submissions above and need not be repeated. The Court also directed that the appellant was not permitted to enlarge ground 2 of his notice of appeal beyond the ambit of his outline of written submission.

(b) The appellant's submissions summarised 44 In support of ground 2 (inflexible policy), the appellant submitted that the primary judge erred in not finding that the Minister had applied an inflexible policy in [75] of his reasons for decision. It is convenient to set out that paragraph again for ease of reference: 75. I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. 45 The appellant submitted that this language suggested that the Minister considered that he was bound by "an external rule or circumstance", with particular emphasis on the Minister's use of the word "cognisant", which the appellant submitted is not normally used in relation to a person's own views, opinions or conclusions. The appellant further submitted that, in the light of this "policy" it was likely to be impossible for any person who has committed a serious violent offence to avoid cancellation of their visa. The appellant submitted that it "was an unreasonable policy and one foreign to the discretion the Respondent exercised". It resulted in the Minister not properly weighing the risk of further offending against other relevant circumstances, so the appellant submitted. 46 As to ground 3 (apprehended bias), the appellant contended that the primary judge applied the wrong test for apprehended bias and also erred in not finding that the Minister's decision was attended by apprehended bias. 47 As to the claim that the primary judge applied the wrong test for apprehended bias, the appellant focused on the last sentence in [81] of her Honour's reasons for judgment. We shall set out that paragraph in full and highlight the final sentence: 81 There is no doubt that the Minister's comment that "this guy, on what … I've seen publicly, is a grub from start to finish" is highly disapproving of Mr Zaburoni. Further, the Minister's public acknowledgement that those factual circumstances "makes it pretty compelling for us to cancel visas" and "we don't want people of people of bad character here" give cause for a relevantly informed reasonable lay observer to conclude that Mr Zaburoni's task to persuade the Minister to exercise his discretion in Mr Zaburoni's favour was likely to be difficult. However, I do not accept that the Minister's remarks indicate a misunderstanding of his task under s 501(2) or a mind closed to persuasion. 48 While accepting that the primary judge had correctly described the test at [63]-[73], the appellant submitted that the last sentence in [81] constituted a "watering down" of the application of the test to the particular circumstances. He submitted that, instead of applying the "double might" test, her Honour posed a question which reflected the test for actual bias. He further submitted that the same error was manifest in the final sentence of [83], which for convenience is also set out below with the final sentence highlighted: 83 Second, as noted by Mr Zaburoni, the Minister's remarks were made before notice of intention to cancel Mr Zaburoni's visa had been given and well before the Minister had been given any submissions by Mr Zaburoni. The Minister's comments reveal his appreciation that he currently has only the publicly available information. It is not entirely clear why the Minister would need to look at this case with the police, but it does indicate his appreciation that he may not have all of the facts and that further information might be relevant to any decision he had to make. This is an indication that the Minister's mind was not closed in relation to the ultimate decision he might be called upon to make under s 501(2). 49 The appellant submitted that the same "watering down" was evident in [86], [91] and [92], where her Honour again made reference to the notion of a "closed mind" in one form or another. 50 In essence, the appellant submitted that the correct question was not whether the Minister's mind was closed to any evidence or submissions from the appellant, but rather whether a reasonable lay observer might apprehend that the Minister might have had a closed mind or otherwise be biased. 51 It is unnecessary to summarise the Minster's submissions because they are largely reflected in our reasons below for dismissing the appeal.

Disposition of the appeal 52 Before addressing the two remaining grounds of appeal, it is desirable to say something concerning the appellant's invitation for the Court effectively to step into the shoes of the primary judge and determine for itself, on the basis of the material before it, whether or not there was a reasonable apprehension of bias. This invitation misconceives the nature of the appeal. It is well settled that the appeal is by way of re-hearing and the appellant must establish appealable error. The Court's appellate jurisdiction is exercised for the correction of error and an appealable error must be made out (see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[25] per Allsop J (as his Honour then was), with whom Drummond and Mansfield JJ agreed; Dovuro Pty Ltd v Wilkins [2000] FCA 1902; 105 FCR 476 at [38] per Branson J and Knight v Beyond Properties Pty Ltd [2007] FCAFC 170; 242 ALR 586 at [20] per French, Tamberlin and Rares JJ). The central principle was described by Flick J in Robertson v Knott Investments Pty Ltd (No 3) [2010] FCA 1074 at [23] in the following terms, with which we respectfully agree: 23 When conducting an appeal by way of re-hearing, it is thus the task of the Court to determine whether the findings made are correct; but it is not the function of the appellate court "merely to substitute its own view, as if it were again performing the function of the trial judge": Wade v Australian Railway Historical Society [2000] SASC 233 at [38], 77 SASR 221 at 227 per Doyle CJ. Nor is it appropriate to invite an appellate court "simply to revisit the relevant evidence … and then contend that the court should reach a different conclusion … [E]rror must be demonstrated for the appellate court to be entitled to disturb the decision of the primary decision-maker … Furthermore, the manner in which the case is conducted by the parties on appeal ought not depart from the manner in which the case was conducted at trial, and generally, the appeal arena is not the appropriate forum to raise new arguments": Tasmanian Sandstone Quarries Pty Ltd v Legalcom Pty Ltd [2010] SASCFC 6 at [34] per Gray J (Nyland and Kourakis JJ agreeing). 53 We reject the appellant's contention that he was not required to demonstrate error on the primary judge's part.

(a) Inflexible policy 54 As the Minister correctly pointed out, for this ground to be made out, the appellant must show: (a) the existence of a policy in the terms now suggested by the appellant; and (b) that the policy was applied by the Minister without regard to the merits of the appellant's case. 55 As to the first of those matters, when asked by the Court to identify the terms of the alleged inflexible policy, Mr Lawrence (who appeared with Mr Chatterjee) for the appellant said that the policy is that where a person has caused great harm and the risk of reoffending cannot be entirely eliminated the power in s 501(2) "must be exercised adversely". In seeking to demonstrate that a policy in those terms existed, the appellant placed strong emphasis on the Minister's use of the phrase "I am cognisant" in [75] of the Minister's Reasons and the primary judge's observation that this phrase had "the flavour of an inflexible policy". Her Honour then emphasised that [75] had to be read in the context of the statement of reasons as a whole. The correctness of the latter observation cannot be doubted. Fairly read this phrase simply reflects the Minister's subjective view or awareness. The Minister was not saying that countervailing considerations would never preclude cancellation of a visa where the Minister considered that great harm could be inflicted on the Australian community if the person reoffended. Rather, in context, the Minister's comments conveyed that the countervailing considerations would have to be extraordinary or exceptionally strong to preclude that outcome and that "strong reasons" alone would not suffice. 56 We are not satisfied that the primary judge fell into appealable error in concluding that the Minister did in fact pay close attention to the individual merits of the appellant's case. In our respectful view, the primary judge was correct to so conclude, based upon the contents of the Minister's Reasons as a whole. They set out in some detail matters relating to Mr Zaburoni's particular circumstances, including such matters as his remorse and rehabilitation, his ties to Australia and the effect of cancellation on his Australian partner, as well as the extent of impediments he would face if he were to return to Zimbabwe. 57 In the section of the Reasons dealing with "Protecting the Australian Community" ([12]-[23]), the Minister's focus was on the nature and seriousness of the appellant's criminal offending, which led the Minister to conclude that his conviction for grievous bodily harm was "very serious". The Minister also took into account what he described as "a serious breach of trust and indicative of [the appellant's] poor character" when the appellant arranged for a friend to take a blood test in order to satisfy the health requirements of his partner visa application in 2005. 58 Similarly, in the section of the Reasons dealing with "Risk to the Australian Community" (at [24]-[45]), the Minister's focus was on the risk the appellant personally posed to the Australian community if he were to re-offend. The Minister said that he had regard to a wide range of material, some of which was favourable to the appellant in terms of his remorse and rehabilitation, but also included unfavourable material, such as the views of a clinical psychologist that, although there was a low risk of the appellant placing others at risk of contracting HIV, he "could not be considered a zero risk because previous behaviour is a predictor of future behaviour" (at [43]). The Minister concluded that there was an ongoing risk that the appellant will re-offend, "albeit a low risk" (at [44]). Accordingly, the Minister reasoned at [45] that, if the appellant did engage in further criminal conduct of a similar nature, "it could result in conduct that could cause psychological and/or physical harm to a member of the Australian community". 59 Similarly, in considering the "expectations of the Australian community", in [47]-[50] of the Reasons, the Minister placed central focus on the appellant's individual circumstances. This is particularly evident in [50] of the Reasons. 60 All these matters highlight the correctness of the Minister's submission that the primary judge did not err in rejecting the appellant's claim that the Minister failed to consider his individual circumstances. Her Honour was correct to emphasise that the Minister's statement in [75] of the Reasons should not be read in isolation from the reasons as a whole or, indeed, from the other paragraphs in the section headed "Conclusion" (see [20] above). In particular, fairly read, the statement in [75] plainly builds upon the conclusions expressed in earlier paragraphs of this section, including [71] and [72] where the Minister summarised his findings concerning the appellant's criminal record and the risk of him re-offending. It also builds on detailed consideration of the competing evidence and arguments on the topic of the appellant's risk of reoffending at [28] to [45]. It is significant that in [71], after noting that the appellant had committed a very serious crime, the Minister stated that the appellant and non-citizens who commit such an offence "should not generally expect to be permitted to remain in Australia" (emphasis added). This statement strongly suggests that the Minister was not applying an inflexible policy of the type asserted by the appellant. 61 The appellant submitted that it was only in the "Conclusion" part of the statement of reasons that the Minister weighed the factors for and against cancellation of the appellant's visa. This submission should be rejected. Again it is inconsistent with the approach in Wu Shan Liang. It is evident from the 69 paragraphs which preceded the "Conclusion" section that the Minister went to some lengths in identifying and weighing the competing relevant considerations. We respectfully agree with the primary judge's observation at [48] that the "Minister's reasoning … cannot be reduced to the simple statement that the risk of re-offending (no matter how small) outweighed countervailing circumstances".

(b) Apprehended bias 62 The relevant principles applying to a claim of apprehended bias against an administrative decision-maker were conveniently summarised recently by the Full Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 (ALA15) at [35]-[36] per Allsop CJ, Kenny and Griffiths JJ: 35 Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco)). 36 Other relevant principles are: (a) at least the following two steps are involved in a case involving an allegation of apprehended bias: (i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and (ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ); (b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be "distinctly made and clearly proved" (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and (c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J). 63 In addition, the following observations of Hayne J in Jia Legeng [188] and [192] (with whom Gleeson CJ and Gummow J agreed at [100]) are apposite: 188 Section 501(2) of the Migration Act (in the form in which it stood at the time of the Minister's decisions concerning these visa holders) was engaged if "having regard to" either "the person's past criminal conduct" or "the person's general conduct" the Minister was "satisfied that the person is not of good character". The subject about which the Minister was required to be satisfied was a subject which required the formation of a value judgment. It required the development of a view about what kinds of conduct are, or may be, inconsistent with being of good character. It obviously permitted the formation of a view that, in the absence of some countervailing consideration, certain kinds of past criminal conduct would sufficiently demonstrate that a person was not of good character. If the Minister formed such a view, and announced that this was the view that had been formed and would be applied in the administration of the Act, there could be no suggestion that the Minister had thereby prejudged any application which was to be made. The most that could be said is that the Minister had stated an understanding of what was meant by the statutory expression "is not of good character" and had indicated how the Act would be administered. So long as the meaning adopted revealed no error of law (which it would if the meaning assigned lay outside the permissible range of circumstances that could be embraced by the expression) there could be no challenge to what was done. Given that the decision-maker is the Minister, the expression can be seen to embrace a wide range of permissible views. … 192 Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly. Indeed, in a context such as the present, if there is a cause for complaint, analysis will often reveal that the complaint is one of error of law in the construction of the relevant provision, not one of bias or apprehended bias. Neither Mr Jia nor Mr White could, or did, put his case in that way. The content which the Minister's decisions in these cases showed he gave to the expression "not of good character" was plainly open. 64 The appellant has not demonstrated any appealable error in respect of the primary judge's reasons for rejecting his apprehended bias case. Although her Honour's attention was apparently not drawn to ALA15, her Honour correctly summarised the relevant legal principles in [72] and [92] of her reasons for judgment. We reject the appellant's contention that her Honour's reasoning in [74]-[92] represents a "dilution" of the "double might" test. These paragraphs all fall under the heading "Consideration of Mr Zaburoni's submissions" and they need to be read accordingly. Having stated the correct test in [72], and then repeated it at [92] of her Honour's reasons for judgment, we do not accept that, in the intervening paragraphs, her Honour misapplied or diluted the correct test. Rather, in these intervening paragraphs, her Honour was responding to and rejecting various submissions advanced on behalf of Mr Zaburoni by reference to evidence. The findings in these paragraphs were reasonably open to be made and do not reveal any misapplication of the correct test. 65 For these reasons, we do not consider that the appellant has established appealable error in respect of the primary judge's rejection of his apprehended bias claim.

Conclusion 66 Accordingly, the appeal will be dismissed and the appellant ordered to pay the respondent's costs. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Griffiths, Moshinsky and Bromwich

Migration Act 1958(Cth)s 501(2)

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