Pre-emptive remedies & interpretation of s 501(6)(h)

Question 18: Can it be said that "s 501(6)(h) of the Act requires that the inference that the person “would present a risk to the Australian community or a segment of that community” must be drawn from the Interpol notice which is in force in relation to the person and not from any extraneous facts or circumstances"?

Question 19: If the answer to Question 18 is "yes", does it follow that it is not "permissible for the decision-maker to have regard to facts and circumstances that bear in some material way on the inferences able to be drawn from the existence of the Interpol notice and the allegations referred to in it"?

Question 20: If the answer to Question 19 is "yes", in determining whether it was reasonable to infer from the Interpol red notice in force against Mr H that he would present a risk to the Australian community, was it "open to have regard to Interpol’s rules and regulations concerning the issuing of red notices, the Commission’s decision that the red notice issued in respect of Mr H complied with Interpol’s rules, the addendum to the red notice and, perhaps most significantly, the evidence or information supplied by Mr H in response to the Minister’s notice of intention to consider refusing Mr H’s visa"?

Question 21: Does s 501(6)(a) involve an objective or subjective test?

Question 22: Does s 501(6)(aa) involve an objective or subjective test?

Question 23: Does s 501(6)(ab) involve an objective or subjective test?

Question 24: Does s 501(6)(e) involve an objective or subjective test?

Question 25: Does s 501(6)(f) involve an objective or subjective test?

Question 26: Does s 501(6)(g) involve an objective or subjective test?

Question 27: Does s 501(6)(b) involve an objective or subjective test?

Question 28: Does s 501(6)(ba) involve an objective or subjective test?

Question 29: Does s 501(6)(h) involve an objective or subjective test?

Question 30: If the answer to Question 29 is that s 501(6)(h) involves an objective test, does it follow that the question whether it "is reasonable to infer that the person would present a risk to the Australian community or a segment of that community", despite being a question which must be in the first instance determined by the Minister, can and should be determined by a court for itself as a jurisdictional fact on judicial review? In other words, does it follow that a court on judicial review in not limited to the determination of whether the Minister's decision under s 501(6)(h) was legally unreasonable?

Question 31: Does the evidence as it presently stands suggest that it would not be reasonable to draw the required inference from the Interpol notice?

Question 32: Can it be said that, "when an order in the nature of prohibition is sought in relation to future conduct, there must be more than a risk of procedural unfairness" and that "there must be a strong probability that procedural unfairness will result"?

Question 33: Can it be said that, "where the decision-making process, viewed in its entirety, entails procedural fairness, this is a cogent reason to be taken into account in the exercise of discretion" to refuse to grant relief in the form of prohibition or declaration?

Question 34: If the Minister refused to grant the Appellant the visa under s 501(6)(h) and such refusal places the appellant in immigration detention, is it "less than satisfactory for this Court to start issuing constitutional writs before the administrative decision-making process has run its course", bearing in mind that the Appellant "will have the right to merits ... review of the Minister’s decision, once that decision has been made"?

Question 35: Is the grant of a mandamus, like all constitutional writs, discretionary?

Question 36: Does the fact that, if the Full Court issues the writ of mandamus ordering the Minister to make a decision according to law and the FCA later on finds that the Minister's decision is affected by jurisdictional error, thereby giving the Appellant the opportunity to seek before the FCA peremptory mandamus to the effect that the Minister grant the visa, justify the Full Court issuing the writ of mandamus?

Question 37: Can it be said that, "in circumstances where the [appellant] has at all material times since the [notices from the Minister] sought for the Minister not to make a decision under s 501(1) on the basis of the [IRN], it cannot be said that the Minister has unreasonably delayed by not making a decision"?

Question 38: Can it be said that, "all things being equal, the Minister may reasonably infer that a person would present a risk to the Australian community or a segment of it from the Interpol notice itself"?

Question 39: Does s 501(6)(h) call for "the Minister to be satisfied that the non-citizen in relation to whom an Interpol notice is in force actually offended in the manner described in that notice"?

Question 40: Does s 501(6)(h) call for the Minister to be satisfied that there is "a reasonable case to be made" against the Appellant?

Question 41: Does s 501(6)(h) call for the Minister to be satisfied that there is evidence in support of the charges?

Question 42: Can it be said that, "all other things being equal, it is difficult to see why information or allegations which emanated from a police force in a liberal democracy with an independent criminal justice and judicial system would not be worthy of significantly more weight than information or allegations which emanated from a police force or security agency in an undemocratic authoritarian regime in which there is no independent criminal justice system"?

Question 43: Is it "difficult to see how the fact that the offence in respect of which Mr Z had been charged carried a potential penalty of life imprisonment could logically or rationally suggest that the underlying allegations had some substance"?

Question 44: In circumstances where the "department had found that Australia owed Mr Z protection obligations" on the basis that "credible information concerning the criminal justice system in China, that there was a real risk, or substantial grounds for believing, that if Mr Z was required to return to China, he would be imprisoned, interrogated and tortured on account of the allegations which formed the basis of the Interpol red notice", was it "preposterous [for the Minister] to suggest that the Australian community would expect Mr Z to return China to “resolve those matters” before his visa application was approved"?

Question 45: Does s 501(6)(d)(v) involve an objective or subjective test?

Question 46: "Paragraph [55] of the Explanatory Memorandum to the Bill inserting s 501(6)(h) suggests that it could reasonably be inferred in some cases from the mere fact of an Interpol notice being in force in relation to a non-citizen that he or she might present a risk to the Australian community". Does that suggestion conform with the text of s 501(6)(h)?

Question 47: Does s 501(6)(c) involve an objective or subjective test?

Question 48: Does s 501(6)(d) involve an objective or subjective test?

Question 49: Based on country information concerning China before the Full Court, can it be said that "anyone considering the present [Interpol red] notice would need to exercise real caution in drawing an inference that someone alleged to have committed an offence in fact committed that offence, and thereby presents a risk to the Australian community or a segment of it"?

Question 50: Can it be said that, although "the reasons of an administrative decision-maker must not be read with an eye keenly attuned to the perception of error and that a common sense and realistic approach should be taken to understanding the reasons as a whole", "that does not mean that the reasons should not be logical and easy to understand"?

Question 51: In the context of s 501(6)(h), was the Minister "under a duty to have regard to a “substantial, clearly articulated argument relying upon established facts” as an incident of his duty to afford natural justice to the respondent"?

Question 52: If the answer to Question 51 is "yes", can it be said that, "whether that duty has been discharged in the exercise of power by the Minister personally under s 501(1) falls to be considered largely by reference to the evidence and/or submissions provided by the respondent"?