Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20
[2021] FCAFC 195
•9 November 2021
FEDERAL COURT OF AUSTRALIA
Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195
Appeal from: CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855 File numbers: NSD 47 of 2021
VID 13 of 2021Judgment of: ALLSOP CJ, KENNY, BESANKO, KERR AND CHARLESWORTH JJ Date of judgment: 9 November 2021 Catchwords: MIGRATION — appeal from orders made by Federal Court of Australia granting application for judicial review of decision of Acting Minister — where Administrative Appeals Tribunal made decision setting aside decision of delegate of Minister for Home Affairs to refuse to grant protection visa to respondent — where Acting Minister set aside decision of Tribunal under s 501A(2) of Migration Act 1958 (Cth) — where respondent was person in respect of whom Australia had protection obligations with country of reference being Afghanistan — where consequences of refusal of visa included removal from Australia — where no other country respondent could be removed to such that removal would be to Afghanistan where respondent faced risk of harm in breach of Australia’s international non-refoulement obligations — where Acting Minister did not refer to implications of breach of international non-refoulement obligations in consideration of whether refusal of visa in national interest under s 501A(2)(e) — where Acting Minister referred to Australia’s international non-refoulement obligations in addressing discretion to refuse visa upon satisfaction of matters in s 501A(2)(c), (d) and (e) — whether Acting Minister deferred active consideration of Australia’s international non-refoulement obligations to assessment of discretion — whether Acting Minister erred in not giving active consideration to implications of breach of Australia’s international non-refoulement obligations as part of consideration of national interest — appeal dismissed
MIGRATION — application for judicial review of decision of Minister for Home Affairs — order that two grounds of application be heard separately from any other questions by a Full Court — where Administrative Appeals Tribunal made decision setting aside decision of delegate of Minister to refuse to grant protection visa to applicant — where Minister set aside decision of Tribunal under s 501A(2) of Migration Act 1958 (Cth) — where applicant was person in respect of whom Australia had protection obligations with country of reference being Afghanistan — where consequences of refusal of visa included removal from Australia — where no other country applicant could be removed to such that removal would be to Afghanistan in breach of Australia’s international non-refoulement obligations — where Minister did not refer to implications of breach of international non-refoulement obligations in consideration of whether refusal of visa in national interest under s 501A(2)(e) — where Minister referred to Australia’s international non-refoulement obligations in addressing discretion to refuse visa upon satisfaction of matters in s 501A(2)(c), (d) and (e) — whether Minister erred in approaching task on basis that s 501A(2) conferred discretion to refuse visa upon satisfaction of each of matters in s 501A(2)(c), (d) and (e) — whether Minister deferred active consideration of Australia’s international non-refoulement obligations to assessment of discretion — whether Minister erred in not considering implications of breach of Australia’s international non-refoulement obligations as part of consideration of national interest — jurisdictional error established
Legislation: Acts Interpretation Act 1901 (Cth) ss 25D, 33
Broadcasting Services Amendment Act 2000 (Cth) s 121FD
Clean Energy Act 2011 (Cth) s 3
Federal Court of Australia Act 1976 (Cth) s 20
Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth) s 3
Migration Act 1958 (Cth) ss 46A, 48A, 189, 195A, 197AB, 197C, 198, 501, 501A, 501BA, 501CA, 501E, 501G
National Environment Protection Measures (Implementation) Act 1998 (Cth) s 5
Petroleum (Submerged Lands) Act 1967 (Cth)
Structural Adjustment (Loan Guarantees) Act 1974 (Cth) s 3
Trade Practices Amendment (International Liner Cargo Shipping) Act 2000 (Cth) Division 12A
Water Act 2007 (Cth) s 3
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) Art 3
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Art 33
Draft Articles on Responsibility of States for Internationally Wrongful Acts, commended by the General Assembly on 28 January 2002, A/RES/56/83 and 8 January 2008, A/RES/62/61 Arts 28, 30, 31, 35, 36, 37 and 49
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Arts 2, 6 and 7
Protocol Relating to the Status of Refugees, 606 UNTS 267 (entered into force 4 October 1967)
Statute of the International Court of Justice
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) Art 26
Cases cited: Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 109; (2020) 278 FCR 627
Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838
Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312
Brisbane City Council v Amos [2019] HCA 27; (2019) 266 CLR 593
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1
CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1380
Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26; (2021) 95 ALJR 741
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754
Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417
Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12
Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 188 FCR 326
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589
Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Nuclear Tests (Australia v France) [1974] ICJ Rep 253
Ozer v Minister for Home Affairs [2019] FCA 104
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379
Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42
Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28
PKZM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 845
Plaintiff M70 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144
Polyukhovich v The Commonwealth [1991] HCA 32; 172 CLR 501
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391
Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531
Ward v Williams [1955] HCA 4; (1955) 92 CLR 496
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959
D’Amato A, International Law: Process and Prospect (Transnational Publishers, 1987)
Goodwin-Gill G, McAdam J and Dunlop E, The Refugee in International Law (Oxford University Press, 4th ed, 2021)
Hart HLA, The Concept of Law (Oxford University Press, 3rd ed, 2012)
Hathaway J, The Rights of Refugees Under International Law (Cambridge University Press, 2nd ed, 2021)
Kelsen H, Law and Peace in International Relations (Harvard University Press, 1942)
Lauterpacht E and Bethlehem D, ‘The Scope and Context of the Principle of Non-Refoulement”: Opinion given to the United Nations High Commissioner for Refugees, 20 June 2001
McNair A, The Law of Treaties (Clarendon, 1961)
Mégret F, ‘International Law as Law’ in Crawford J and Koskenniemi M, The Cambridge Companion to International Law (Cambridge University Press, 2012)
Oppenheim L and Roxburgh R, International Law: A Treatise (Longman, Green and Co, 3rd ed, 1920)
Oppenheim L, ‘The Science of International Law: Its Task and Method’ (1908) 2 American Journal of International Law 313
The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006
Williams G, ‘International Law and the Controversy Concerning the Word “Law”’ (1945) 22 British Yearbook of International Law 146
Division: General Division Registry: New South Wales
VictoriaNational Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 181 Date of hearing: 3 June 2021 NSD 47 of 2021 Counsel for the Appellant: Mr C L Lenehan SC with Mr B K Lim Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr N M Wood with Mr D J McDonald-Norman Solicitor for the Respondent: Human Rights for All VID 13 of 2021 Counsel for the Applicant: Ms L De Ferrari SC with Mr G Hughan Solicitor for the Applicant: AUM Lawyers Counsel for the First Respondent: Mr C L Lenehan SC with Mr B K Lim Solicitor for the First Respondent Spark Helmore Lawyers Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs ORDERS
NSD 47 of 2021 BETWEEN: ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Appellant
AND: CWY20
Respondent
ORDER MADE BY:
ALLSOP CJ, KENNY, BESANKO, KERR AND CHARLESWORTH JJ
DATE OF ORDER:
9 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
VID 13 of 2021 BETWEEN: QJMV
Applicant
MINISTER FOR HOME AFFAIRS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER MADE BY:
ALLSOP CJ, KENNY, BESANKO, KERR AND CHARLESWORTH JJ
DATE OF ORDER:
9 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The parties be heard as to the appropriate orders to be made in light of these reasons.
2.Within seven (7) days the parties file short submissions of no more than two (2) pages as to the appropriate orders to be made.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
I have read the reasons to be published of Besanko J, with which I agree. I agree with the orders proposed. I wish only to add the following.
In the course of oral argument, counsel for the respondent in the appeal (CWY20), sought to anchor international law and international obligations within the national interest calculus through recourse to three related considerations. The first consideration was the possible adverse consequences with respect to Australia’s reputation, international standing, and international relations resulting from the breach of its international non-refoulement obligations: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [123]–[124] (Kerr and Mortimer JJ); PKZM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 845 at [72]–[88]; BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312 at [72], [132]; Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [91]; CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1380 at [37].
The third consideration was the nature of the undertaking by the Executive government to adhere (in good faith) to the terms of a given international instrument as a solemn assurance made to the international community and to the Australian people: BFM16 [2021] FCA 312 at [150]–[154], [195], citing Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 291 where Mason CJ and Deane J said the following:
… ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights ... Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.
Justice Toohey further remarked at 301:
For, by ratifying the Convention Australia has given a solemn undertaking to the world at large …
The first and third of these considerations are familiar in the context of the consideration of the national interest.
The second of the respondent’s considerations warrants some comment: that is, that the violation of an international treaty or custom is a violation of international law qua law and that such could be thought to be a matter of deep and lasting significance, irrespective of the effect on Australia’s reputation in the community of nations. Focusing on the consequences of such breach or the repudiation of a solemn undertaking was not, it was submitted, the whole point. A violation of a treaty is a violation of international law. Such is significant, regardless of whether that violation is attended by reputational consequences, and irrespective of the (important) symbolism of accession to, or ratification of, a given treaty. It is unlawful by international law. The matter arose in oral address without significant elaboration. That is not said critically of counsel. The point is one of importance. Because of that, though recognising that the Court has not had the benefit of detailed submissions, I would add the following.
International law is comprised of, inter alia, treaties: international conventions, whether general or particular, establishing rules expressly recognised by the contesting states, and customary law: international custom, as evidence of a general practice accepted as law: Art 38(1)(a) and (b) of the Statute of the International Court of Justice. That treaties are examples of law per se has not only been endorsed by judges and scholars such as Oppenheim, McNair, D’Amato, Mégret, Crawford and Koskenniemi, (see Oppenheim L and Roxburgh R, International Law: A Treatise (Longman, Green and Co, 3rd ed, 1920) Vol I at 3–19; Oppenheim L, ‘The Science of International Law: Its Task and Method’ (1908) 2 American Journal of International Law 313 at 313–56; McNair A, The Law of Treaties (Clarendon, 1961) at 5; D’Amato A, International Law: Process and Prospect (Transnational Publishers, 1987); Mégret F, ‘International Law as Law’ in Crawford J and Koskenniemi M, The Cambridge Companion to International Law (Cambridge University Press, 2012)); but also by Glanville Williams, Kelsen and Hart: Williams G, ‘International Law and the Controversy Concerning the Word “Law”’ (1945) 22 British Yearbook of International Law 146; Kelsen H, Law and Peace in International Relations (Harvard University Press, 1942) at 49–54; Hart HLA, The Concept of Law (Oxford University Press, 3rd ed, 2012) at 213–237.
Indeed, Australia has always (by its conduct, and by express statements) accepted that international law is law. So much is clear from the Memorial on Jurisdiction and Admissibility, submitted by the Government of Australia in Nuclear Tests (Australia v France) [1974] ICJ Rep 253, especially at [450] and [488]. Australia’s Manual on the Law of Armed Conflict speaks of the “dire consequences” of breaches of international law which is “binding on nations”: The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006 at [1.11]. International law now forms the foundation of enforceable norms in criminal law: see generally Polyukhovich v The Commonwealth [1991] HCA 32; 172 CLR 501.
The question therefore becomes whether knowing violations of international law bear upon considerations of the “national interest”.
“National interest” has been used as an evaluative touchstone in many pieces of Commonwealth legislation since 1945. In some of these Acts, the “national interest” and international obligations are related concepts: see for example, the Clean Energy Act 2011 (Cth) s 3(a) and (b); the Water Act 2007 (Cth) s 3(a) and (b); the Broadcasting Services Amendment Act 2000 (Cth) s 121FD; the Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth) s 3(2)(a) and (b); and the Petroleum (Submerged Lands) Act 1967 (Cth) preamble. Indeed, s 5 of the National Environment Protection Measures (Implementation) Act 1998 (Cth), defines the phrase “matter of national interest” to include “Australia’s relations with another country or Australia’s international obligations”. The term is similarly defined in the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000 (Cth) Division 12A, wherein Australia’s international obligations, and relevant principles of international law or practice are mandatory considerations in determining the national interest. Section 3 of the Structural Adjustment (Loan Guarantees) Act 1974 (Cth) defines “national interest” as “the interests of the Australian community in relation to matters that are, under the Constitution, the concern of the Australian Government”.
Australia’s international obligations and violation thereof can thus be seen to bear directly and naturally on the conception of the “national interest”.
In the case of both CWY20 and QJMV, the Minister, pursuant to s 501A(2) of the Migration Act 1958 (Cth) set aside decisions of the Tribunal which had, in turn, set aside the earlier decisions of the Minister’s delegates to cancel, pursuant to s 501 of the Migration Act, the visas held by CWY20 and QJMV. At the time, to do so placed the erstwhile visa holders in the position of being removed from Australia as soon as reasonably practicable: s 198 of the Migration Act; and, if the person could not be removed to another country, being removed to the country from which the person had sought (and been given by Australia) protection: s 197C. In the then form of s 197C of the Migration Act, Parliament had commanded that Australia’s non-refoulement obligations made under treaty and international law were not to prevent removal from Australia.
Australia’s non-refoulement obligations can be found in Art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); Art 2 read with Arts 6 and 7 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) and Art 33 of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, 606 UNTS 267 (entered into force 4 October 1967), in addition to any obligations that may exist at customary international law. There can be no doubt that the obligation of non-refoulement is a rule expressly recognised by contracting states. Article 33 of the Refugees Convention and Protocol cannot be the subject of reservation: Art 42. Non-refoulement lies at the heart of the Convention: “It embodies the humanitarian essence of the [Refugees] Convention”: Lauterpacht E and Bethlehem D, “The Scope and Context of the Principle of Non-Refoulement”: Opinion given to the United Nations High Commissioner for Refugees, 20 June 2001 at 21 [51] and [53], referred to by Kiefel J (as the Chief Justice then was) in Plaintiff M70 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at 224 [214]; see also Goodwin-Gill G, McAdam J and Dunlop E, The Refugee in International Law (Oxford University Press, 4th ed, 2021) 243–258; and Hathaway J, The Rights of Refugees Under International Law (Cambridge University Press, 2nd ed, 2021) Chapter 4.
Article 26 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), and the principle of pacta sunt servanda, impose upon the Australian Government an obligation to observe and perform, in good faith, those treaties to which it is a party. Failure to do so exposes the nation to responsibility for internationally wrongful acts under the Draft Articles on Responsibility of States for Internationally Wrongful Acts, commended by the General Assembly on 28 January 2002, A/RES/56/83 and on 8 January 2008, A/RES/62/61, in which case Australia may face legal consequences (Art 28), including, but not limited to: cessation and non-repetition (Art 30), reparation (Art 31) in the form of restitution (Art 35), compensation (Art 36) and satisfaction (Art 37), in addition to countermeasures (Art 49). Whether or not these legal consequences in fact arise, a breach of a treaty is a breach of international law, which is a breach of law nonetheless.
Thus, part of the national interest can be seen necessarily to be the question of whether a decision should be made that may lead, pursuant to the (then) command of Parliament, and depending on the circumstances, to a state of affairs where Australia would act in breach of its treaty obligations, being in this case a rule expressly recognised by Australia and other contracting states to the relevant conventions: that is, in breach of international law, and in that sense unlawfully.
It goes without saying that it is a matter for the Executive to determine whether it is in the national interest for a given visa to be cancelled. Within any such decision, if it be relevant, the violation of international law, qua law, is intrinsically and inherently a matter of national interest, and therefore within the subject of evaluation. So much has been recognised in other Commonwealth legislative regimes, and so much ought to be recognised in the context of the Migration Act in respect of non-refoulement obligations.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop . Associate:
Dated: 9 November 2021
REASONS FOR JUDGMENT
KENNY J:
There are two matters before the Court. One, Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (CWY20), is on appeal from a judgment of a judge of the Court. The other, QJMV v Minister for Home Affairs, concerns two grounds of an originating application for judicial review within the Court’s original jurisdiction, which came before the Court in the manner described by Besanko J. The issues for determination in these two cases are related.
The Acting Minister in CWY20 appeals from a judgment that set aside, for jurisdictional error, a decision of 16 July 2020 made under s 501A(2) of the Migration Act 1958 (Cth) (the Act) concerning CWY20. That decision set aside a decision of the Administrative Appeals Tribunal (the Tribunal). The circumstances relevant at first instance and on appeal in CWY20 appear in the reasons for judgment of the primary judge and in Besanko J’s reasons for judgment on the appeal. Besanko J also describes the circumstances relevant to the determination of Grounds 5 and 5A of QJMV’s application for review of the Minister’s 7 December 2020 decision to set aside a decision of the Tribunal regarding QJMV, also made under s 501A(2) of the Act.
In CWY20’s case, the Acting Minister’s decision involved a refusal of CWY20’s application for a Safe Haven Enterprise (Class XE) visa. In QJMV’s case, the Minister’s decision involved a cancellation of his Resident Return (Class BB) (Subclass 155) visa. Prior to this visa, QJMV held a Protection (Class XA) (Subclass 866) visa.
As will be seen by now, I have had the considerable advantage of reading in draft the reasons prepared by Besanko J. I substantially agree with his Honour’s reasons; in particular, I agree as follows.
For the reasons set out by Besanko J (at [94]-[107]) I would reject the submission made by QJMV (and by CWY20 in his notice of contention) that once satisfied of each of the matters in s 501A(2)(c), (d) and (e) of the Act, the Minister had no discretion under s 501A(2). In other words, I would reject the submission that, once satisfied of these matters, the Minister (or Acting Minister) was required to set aside the Tribunal’s decision in each case.
Further, I concur with Besanko J that, in CWY20, the primary judge was correct to reject the Acting Minister’s submission that it should be inferred from his statement of reasons that he turned his mind to the implications of Australia breaching its non-refoulement obligations in assessing whether it was in the national interest to refuse CWY20 a Safe Haven Enterprise visa. I do so for the reasons stated by Besanko J, and also by the primary judge. Substantially for the reasons stated by the primary judge and by Besanko J, I also concur with Besanko J’s conclusion that, if it were necessary to determine the issue raised by Ground 2B of the appeal, then the Acting Minister, acting rationally and reasonably, could not have concluded that Australia’s breach of non-refoulement obligations arising under international law was immaterial to an assessment of Australia’s national interest.
Finally, I am of the view that, if Australia’s non-refoulement obligations is not a mandatory relevant consideration in deciding upon an exercise of power under s 501A(2) of the Act, then, for the reasons expressed by Besanko J, this does not create any relevant incongruity with a finding that a failure to consider those obligations in a particular case (as in CWY20) means that the state of satisfaction as to national interest mandated by s 501A(2)(e) has not been arrived at reasonably in the legal sense.
Accordingly, I agree in the making of the orders proposed by Besanko J in his reasons.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny. Associate:
Dated: 9 November 2021
REASONS FOR JUDGMENT
BESANKO J:
INTRODUCTION
There are two proceedings before the Court. The first proceeding is an appeal by the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Acting Minister) from orders made by a judge of the Court on 23 December 2020 (CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855). The second proceeding concerns two grounds in an Amended Originating application in the original jurisdiction of the Court. In the second proceeding, an order was made that the issues and questions arising in Grounds 5 and 5A of the Amended Originating application be heard separately from any other questions. The Chief Justice subsequently made a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the original jurisdiction of the Court in relation to the issues raised in Grounds 5 and 5A of the Amended Originating application be exercised by a Full Court.
The appeal and Grounds 5 and 5A of the application raise similar issues concerning decisions made, in the case of the appeal, by the Acting Minister and, in the case of the application, by the Minister under s 501A(2) of the Migration Act 1958 (Cth) (the Act) and the construction and application of that subsection and, in particular, the condition in s 501A(2)(e) dealing with the national interest.
THE FACTS IN THE APPEAL
The respondent to the Acting Minister’s appeal is described as CWY20.
The respondent is a national of Afghanistan and he arrived at Christmas Island in July 2013. He was taken into immigration detention. On 21 August 2013, he was granted a Bridging E (Class WE) visa and released into the community.
In December 2013, the respondent was charged with multiple offences of a sexual nature against children and he was remanded in custody. His Bridging visa was cancelled under s 116 of the Act.
On 3 March 2014, the respondent was convicted on seven separate counts involving indecent assaults on young females. He was sentenced to a total term of imprisonment of 56 months, with a fixed term of 14 months imprisonment. After the respondent had served his sentence, and while he was in immigration detention, he applied for a Safe Haven Enterprise (Class XE) visa. On 20 July 2017, a delegate of the then Minister for Home Affairs refused the respondent’s application. The respondent sought a review of that decision by the Administrative Appeals Tribunal (the Tribunal). On 25 October 2017, the Tribunal set aside the delegate’s decision. The Minister then decided to set aside the Tribunal’s decision under s 501A(2) of the Act, but this decision was subsequently quashed following legal proceedings.
On 16 July 2020, the Acting Minister made another decision to set aside the Tribunal’s decision under s 501A(2) of the Act and it is this decision which was the subject of the application for judicial review considered by the primary judge.
The respondent was advised of the Acting Minister’s intention to consider exercising the power under s 501A(2) and in the period prior to 16 July 2020, he provided the Acting Minister with various materials and submissions. The Acting Minister’s Department provided him with a submission, a decision record and draft reasons for the purposes of assisting him in making his decision.
The departmental submission records the fact that in July 2016, a departmental delegate indicatively found that the respondent was a refugee on the basis of his claims with respect to his race and religion. It noted that the Department had found that the respondent was a person in respect of whom Australia had protection obligations with the country of reference being Afghanistan. That meant (so the submission stated) that to remove the respondent to Afghanistan would be in breach of Australia’s international non-refoulement obligations and that, although the respondent could be removed to a country other than Afghanistan, there was at that time no known prospect of removal to such a country. The submission states that if the Acting Minister decides to refuse to grant the respondent a Safe Haven Enterprise visa, he will, as an unlawful non-citizen, be subject to continued immigration detention under s 189 of the Act and removal from Australia under s 198 of the Act “as soon as reasonably practicable”. The submission asks the Acting Minister to note that s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. The submission advises the Acting Minister that it is open to him to give considerable weight to the assessment that the respondent is a person in respect of whom Australia has international non-refoulement obligations and to the statutory consequences of a decision to refuse to grant him a Safe Haven Enterprise visa.
The Acting Minister made his decision on 16 July 2020. The decision is expressed as follows:
I reasonably suspect that [the respondent] does not pass the character test and [the respondent] has not satisfied me that he passes the character test and I am satisfied that it is in the national interest to refuse to grant [the respondent’s] visa. I have decided to exercise my discretion under s501A(2) of the Act. I hereby set aside the decision of the AAT dated 25 October 2017, and refuse to grant [the respondent’s] Safe Haven Enterprise (Class XE) visa. My reasons for this decision are set out in the attached Statement of Reasons.
In another document which accompanied the departmental submission and which was signed by the Acting Minister at the time he made his decision, he indicated that he did not require a submission with respect to and nor did he seek to discuss, should he decide to refuse the respondent’s visa (as he did), alternative management options “which encompass the grant of another visa under s 195A or a residence determination under s 197AB”.
I turn now to summarise the Acting Minister’s reasons.
After setting out a number of introductory matters relevant to the respondent’s application and addressing the conditions in s 501A(2)(c) and (d), that is, the character test which the respondent clearly failed to pass, the Acting Minister turned to consider the national interest.
The Acting Minister commences his consideration of the national interest by noting that the national interest is not defined for the purposes of s 501A and by noting the guidance offered by the authorities about the meaning of the concept of national interest as follows:
(1)The national interest is a different concept to the public interest;
(2)The decision as to what is or is not in the national interest is entrusted by the Act to the Minister to determine according to his or her own satisfaction which must be attained reasonably (Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 188 FCR 326 (Madafferi)); and
(3)In considering the national interest under s 501A(2), the Minister may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant passes the character test and the crime or crimes may be of such seriousness as to found the satisfaction that it is in the national interest that a person’s visa be cancelled (Madafferi at [86]; Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 (Gunner); Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 (Re Patterson) at [79] per Gaudron J).
The Acting Minister states that he had regard to the representations made by the respondent’s representative. He then expresses the conclusion that matters of national interest include, among other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct and any disposition imposed by the Court in respect of that conduct and that matters of national interest can include a consideration of the risk of a person reoffending and the harm which could result if such a risk eventuated.
The Acting Minister then turned to consider the nature and seriousness of the respondent’s criminal conduct, the risk that he would reoffend and the extent of the likely harm should he do so. It is not necessary for the determination of the issues on the appeal to set out the details of the Acting Minister’s consideration of these matters. It is sufficient to note that the Acting Minister concluded that it was in the national interest to refuse to grant the respondent’s application for a visa and that there is no reference in this part of the Acting Minister’s written reasons to Australia’s international non-refoulement obligations.
The Acting Minister said, having found that the respondent did not pass the character test and that it was in the national interest to refuse to grant the respondent’s visa, he would then address his discretion “to refuse to grant [the respondent’s] visa, taking into account factors that I considered weighed against and in favour of refusing [the respondent’s] visa”. In that context, the Acting Minister considered the following matters: (1) his assessment of the expectations of the Australian community as to whether the respondent should hold a visa; (2) the relevance of, impact or effect of Australia’s international non-refoulement obligations; (3) the effect on the respondent’s family in Afghanistan (i.e., a spouse and five children) of a decision to refuse the respondent’s application for a visa and his continuing detention; and (4) the strength, nature and duration of the respondent’s ties to Australia.
The Acting Minister then set out his conclusions. He referred to “countervailing considerations” which he said included non-refoulement obligations. The Acting Minister said that he had regard to the limited length of time in which the respondent has made a contribution to the Australian community, the resulting impacts of prolonged detention and the impact of a refusal decision on the respondent’s family unit in Afghanistan.
The final paragraph in the Acting Minister’s reasons is as follows:
133.I find that the above considerations favouring not setting aside the original decision and refusing to grant [the respondent’s] visa are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to refuse to grant [the respondent’s] application for a Safe Haven Enterprise (Class XE) visa under s501A(2) of the Act.
The “above considerations” in this passage of the Acting Minister’s reasons are the countervailing considerations.
In the course of considering Australia’s international non-refoulement obligations, the Acting Minister made the following findings: (1) on 29 July 2016, a delegate of the Department indicatively found that the respondent is a refugee on account of his claims with respect to his race and religion; (2) the delegate’s finding that the respondent is a person in respect of whom Australia has non-refoulement obligations means that his removal to Afghanistan would be in breach of Australia’s international non-refoulement obligations; (3) by reason of a combination of ss 501E and 48A of the Act and the Migration Regulations 1994 (Cth) (the Regulations) relevant to Bridging R (Class WR) visas, a decision unfavourable to the respondent will mean that he will be unable to apply for another visa; (4) the refusal of the respondent’s application for a visa has the consequences under the Act that he will become liable for removal from Australia as soon as reasonably practicable under s 198 of the Act and in the meantime, detention under s 189. Further, s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non-citizen; (5) that he has a personal non-compellable power under s 195A of the Act to grant a visa to the respondent if he considers that it is in the public interest to do so; and (6) if the respondent is removed to Afghanistan, there is a risk that he would suffer the type of harm described in his claims for protection, including death at the hands of the Taliban and other extremist groups.
The following matters should be noted in relation to these six findings. First, as already noted, at the same time as he made his decision, the Acting Minister indicated that he did not require a submission from his Department with respect to or wish to discuss the option of granting the respondent another visa under s 195A of the Act. Secondly, the Acting Minister said that he gave considerable weight to the risk identified in finding (6) above. Finally, the Acting Minister also addressed the effects on the respondent of his continuing detention.
THE PRIMARY JUDGE’S REASONS IN THE APPEAL
The primary judge set aside the Acting Minister’s decision on the ground that he made a jurisdictional error.
The primary judge said that the only issue in the case before him was whether the Acting Minister fell into reviewable error in considering the implications of Australia being in breach of its international non-refoulement obligations when he addressed his residual discretion under s 501A(2) and not earlier in his analysis, with particular reference to the pre-condition to the exercise of the power that he was satisfied that refusal to grant the visa was in the national interest (PJ at [85]).
The primary judge noted on more than one occasion in his reasons that the respondent’s challenge to the Acting Minister’s decision was not based on a claim by the respondent that the Acting Minister failed to take into account a mandatory relevant consideration to his assessment of the national interest, being the implications of a breach by Australia of its international non-refoulement obligations (see, for example, PJ at [92]). The basis of the respondent’s challenge to the decision was legal unreasonableness and the requirement that the decision-maker have a correct understanding of the law.
The primary judge said that he did not understand the Acting Minister to dispute the proposition that the formation of the state of satisfaction for the purposes of s 501A(2)(e) was subject to judicial review as to whether his reasoning was illogical, irrational or unreasonable and that he was also required to have a correct understanding of the law (PJ at [94]).
The primary judge said that it is not accurate to describe the condition in s 501A(2)(e) as a discretionary power, the exercise of which would attract the principles concerning reasonableness in the legal sense identified in cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1. Rather, the task or exercise under s 501A(2)(e) was one of evaluation. The primary judge said that the Minister’s state of satisfaction in s 501A(2)(e) is properly described as a subjective jurisdictional fact and he referred to the statements of the grounds of judicial review in the case of subjective jurisdictional facts in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 (Avon Downs) at 360 per Dixon J (as his Honour then was) and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 (SGLB) at [38] per Gummow and Hayne JJ.
The primary judge noted the practical difficulty of establishing legal unreasonableness in a case where the state of satisfaction required by the legislation relates to a matter of opinion or policy or taste and, in that context, he referred to the decision in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 (Buck v Bavone) at 118–119 per Gibbs J (as his Honour then was). His Honour also referred to the observations of various members of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [35] and [40] per Gummow ACJ and Kiefel J (as her Honour then was); at [120], [130] and [131] per Crennan and Bell JJ and, having reviewed those authorities, the primary judge said (PJ at [108]):
… This serves to highlight the need for appropriate judicial self-restraint in reviewing a subjective jurisdictional fact on grounds of irrationality, illogicality or the related concept of unreasonableness. There is a high threshold.
The primary judge rejected a submission made by the Acting Minister to the effect that s 197C of the Act was significant beyond the operation of s 198 of the Act. Section 198 of the Act deals with the removal from Australia of unlawful non-citizens by officers and s 197C(1) provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen. The primary judge said that s 197C had no significance beyond this and that the provision said nothing about Australia’s non-refoulement obligations in respect of the exercise of other powers and duties of the Act (PJ at [112]).
His Honour said that the decision of the High Court in Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897 (Applicant S270/2019) was not determinative of the issues which arose in the proceeding (PJ at [113]). I will return to discuss this decision later in these reasons.
His Honour said that the authorities supported the proposition that the subjective jurisdictional fact contained in s 501A(2)(e) must not only be formed reasonably, but must also be formed on the basis of a correct understanding of the law. His Honour considered that that obligation meant that the Minister must address any relevant component of the national interest which arose squarely on the material before the Minister and that this may include representations made by the person on that subject, but it is not necessarily confined to consideration of such representations (PJ at [117]).
I come then to the critical aspects of the primary judge’s reasons.
The primary judge said that, in the particular circumstances of the case before him, the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the materials before the Acting Minister and the findings which the Acting Minister made. His Honour held that what he described as the “very serious consequence for Australia” of a decision by the Acting Minister to refuse to grant the respondent a visa, being that the respondent would be refouled in breach of Australia’s obligations under international law, had to be confronted and assessed by the Acting Minister in assessing the national interest as required by s 501A(2). His Honour immediately went on to say that ultimately, however, it would be a matter for the Acting Minister to determine whether or not, despite putting Australia in breach of its obligations under international law, it was nevertheless in the national interest to refuse to grant the respondent a visa (PJ at [119]).
The primary judge said that whilst the seriousness of the respondent’s criminal conduct, the sentence he received, the risk that he would reoffend and the harm to the Australian community if such risk eventuated are all matters which could be considered by the Acting Minister in his assessment of the national interest, so are the implications of Australia breaching its non-refoulement obligations and returning a person to his country of origin where there was an accepted risk that he would be killed. His Honour referred to a number of authorities in which it had been recognised that Australia’s international reputation and standing fall within the ordinary meaning of the expression “national interest”: Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 at [45] per Kenny J; Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959 at [33] per Tamberlin J; Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 109; (2020) 278 FCR 627 at [91]. His Honour also referred to the observations of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Teoh) at 291 concerning the significance to be accorded to the ratification by Australia of an international convention.
The primary judge said he found that, in the particular circumstances of this case, Australia’s international obligations relating to non-refoulement are an important part of the national interest for the purposes of s 501A(2) of the Act. His Honour’s use of the word “found” is not accidental. The case was not argued before him as a failure to take into account a mandatory relevant consideration and his Honour’s conclusions were clearly based on the particular circumstances of the case.
The primary judge considered that the structure of s 501A(2) was significant in that it highlighted the distinct and separate pre-conditions to the exercise of the Acting Minister’s power to refuse to grant a visa to a person. His Honour said the following (at [134]):
… On the proper construction of s 501A(2), and having regard to the Acting Minister’s findings that refusing the applicant a visa and returning him to his country of origin would put Australia in breach of its non-refoulement obligations and expose the applicant to the risk of being killed, the Acting Minister, acting reasonably and with a correct understanding of the law, ought to have addressed those matters at an earlier stage of the decision-making process and before he addressed his residual discretion. Having regard to Australia’s reputation in the international community and its obligations under international law, breach of Australia’s non-refoulement obligations and the ramifications thereof were relevant to the Acting Minister’s assessment of the national interest at an earlier stage of the decision-making process. …
The primary judge held that the Acting Minister fell into jurisdictional error by assessing the question of the national interest on an erroneously narrow basis and that the error could be described alternatively as reasoning unreasonably, or failing to act upon a correct understanding of the law (PJ at [136]).
The primary judge said that the stage at which the Acting Minister considered the implications of Australia acting in breach of its international non-refoulement obligations was significant. Had the Acting Minister considered Australia’s breach of its non-refoulement obligations as part of the national interest, he may have given the national interest a different weight or, in the alternative, he may have reached a different conclusion as to whether he was satisfied that the refusal was in the national interest. The Acting Minister’s misunderstanding of the concept of national interest gave rise to a possible distortion in the subsequent balancing exercise (PJ at [136]–[137]).
The primary judge noted that in Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12 at [114], the Full Court of this Court held that it was necessary for the Assistant Minister to have a correct understanding of the Act when forming the state of satisfaction required by s 501BA(2) and that that was so even if the existence or otherwise of non‑refoulement obligations in respect of the applicant was not a mandatory relevant consideration.
Finally, the primary judge rejected the Acting Minister’s submission that the respondent had to adduce evidence to support his claim that the Acting Minister’s decision would harm Australia’s reputation in the eyes of other countries because the decision was taken in knowledge that it constituted a breach of Australia’s non-refoulement obligations. I will expand on his Honour’s reasons for rejecting this submission later in these reasons.
THE FACTS IN THE APPLICATION
The applicant in the proceeding is described as QJMV and the respondents are the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, and the Commonwealth of Australia.
The following facts are taken from the documents before the Court and are not in dispute. The applicant is a citizen of Afghanistan and between July 2011 and February 2020, he lived in Australia as the holder of a permanent residence visa being first, a Protection (Class XA) (Subclass 866) visa and then a Subclass 155 Resident Return Five Year visa.
On 6 February 2020, a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(2) of the Act. On 7 May 2020, the Tribunal set aside the delegate’s decision and decided not to exercise the power in s 501 of the Act to cancel the applicant’s visa.
The reason the applicant does not pass the character test is briefly, but for present purposes, adequately, explained by the Tribunal as follows:
In late 2015 QJMV was found guilty of two charges of ‘Indecent act with child under 16’, relating to an incident that occurred on 26 January 2015. The Court dealt with QJMV’s offending without conviction and by imposing an 18-month Community Corrections Order (“CCO”). He was subsequently convicted in April 2017 of contravening the CCO and two counts of ‘Fail to comply with reporting obligations,’ which was dealt with by way of a fine;
(Citations omitted.)
On 17 June 2020, the applicant was advised by the Minister’s Department that the Minister intended to consider under s 501A(2) of the Act whether to set aside the original decision of the Tribunal and to cancel the visa granted to the applicant. The solicitor for the applicant responded to the Department’s letter on 22 July 2020 and urged the Minister not to cancel the applicant’s visa.
The Minister was provided with a submission prepared by his Department, a decision record and a draft statement of reasons. The submission, after setting out certain background matters relating to the power in s 501A(2), addresses the character test, the national interest and other matters, including Australia’s international non-refoulement obligations. The submission contains advice to the Minister to the effect that in granting a protection visa to the applicant in 2011, the Department was satisfied that the applicant was a person in respect of whom Australia had protection obligations because he is a refugee with the country of reference being Afghanistan. The submission contains advice that to remove the applicant to Afghanistan would be in breach of Australia’s non-refoulement obligations and that even though the applicant could be removed to a country other than Afghanistan, there was currently no known prospect of removal to such a country. The submission contains advice to the Minister that the cancellation of the applicant’s visa would mean that as an unlawful non-citizen, he would be subject to immigration detention under s 189 of the Act and removal from Australia under s 198 of the Act “as soon as reasonably practicable”. It advises the Minister that s 197C of the Act provides that for the purposes of s 198, it was irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. The submission contains advice to the Minister to the effect that it was open to him to give considerable weight to the assessment that the applicant was a person in respect of whom Australia had international non-refoulement obligations and to the statutory consequences of a decision to cancel his visa. The submission also contains advice to the Minister that if he decided to cancel the applicant’s visa, it was nevertheless open to him to consider alternative management options, being a community residence determination under s 197AB of the Act or granting the applicant a different visa under s 195A of the Act.
The Minister made his decision on 7 December 2020. The decision is expressed as follows:
I reasonably suspect that [the applicant] does not pass the character test and [the applicant] has not satisfied me that he passes the character test, and I am satisfied that it is in the national interest to cancel [the applicant’s] Class BB Subclass 155 Resident Return Five Year visa. I have decided to exercise my discretion under s501A(2) of the Act. I hereby set aside the decision of the AAT dated 7 May 2020 and cancel [the applicant’s] Class BB Subclass 155 Resident Return Five Year visa. My reasons for this decision are set out in the attached Statement of Reasons.
Before turning to the Minister’s reasons, it is to be noted that, as was the case with the Acting Minister’s decision in the appeal, the Minister signed a recommendations page on the day he made his decision in which he indicated that he did not require a submission with respect to, or the opportunity to discuss, alternative management options, “such as another visa under s195A or a residence determination under s197AB”.
The Minister signed and dated without any amendments the draft statement of reasons that had been prepared for him by the Department. The Minister’s reasons, after addressing a number of background matters relevant to the cancellation of a visa under s 501A(2) of the Act, address the character test, the national interest and then the discretion. I say “then the discretion” because the Minister addressed the discretion after he had found that the applicant had not passed the character test and that it is in the national interest to cancel the applicant’s visa. The implications of Australia breaching its non-refoulement obligations is addressed under the heading of the “Discretion”.
The Minister’s reasons in the application are structured in a similar way to the Acting Minister’s reasons in the appeal.
The introduction is followed by a discussion of whether or not the applicant meets the character test. The Minister then considers the national interest and the directions he gives himself about the concept of the national interest are, for all intents and purposes, the same as the directions the Acting Minister gave himself in the decision which is the subject of the appeal.
The Minister considers the nature and seriousness of the applicant’s criminal conduct, the risk of the applicant reoffending and the extent of the likely harm should he do so. It is not necessary for me to set out the details. It is sufficient to note that the Minister concluded that it was in the national interest to cancel the applicant’s visa and that there is no reference in that part of his reasons to the implications of Australia breaching its non-refoulement obligations.
The Minister then describes the meaning of the discretion in exactly the same way as the Acting Minister did in the decision which is the subject of the appeal. The Minister considers the following matters in the context of the discretion: (1) the best interests of the applicant’s four minor children who, with his spouse, are resident in Afghanistan and how they might be affected by the cancellation of his visa; (2) the Minister’s assessment of the expectations of the Australian community as to whether the applicant should hold a visa; (3) the strength, nature and duration of the applicant’s ties to Australia; (4) the impact of the cancellation of the applicant’s visa on Australian business interests; (5) the impact of the cancellation of the applicant’s visa on those affected by his offending; (6) the impediments the applicant will face if he is removed from Australia and returned to Afghanistan; and (7) Australia’s international non-refoulement obligations.
The Minister then sets out his conclusions. He refers to “countervailing considerations” which he identifies as non-refoulement obligations, the applicant’s claims that he will suffer hardship and harm if he is returned to Afghanistan and the impact on family members and friends, the length of time the applicant has made a contribution to the Australian community and hardship to be endured by his family, in particular his wife and children and other family members, and the impediments the applicant will face upon return to his home country, noting the dangers he may face. The final paragraph in the Minister’s reasons is as follows:
107.I find that the above considerations favouring not setting aside the original decision and cancelling [the applicant’s] visa are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the original decision and cancel [the applicant’s] Class BB Subclass 155 Resident Return Five Year visa under s501A(2) of the Act.
The “above considerations” in this passage are the countervailing considerations.
In the course of considering Australia’s international non-refoulement obligations, the Minister made the following findings: (1) the applicant, a national of Afghanistan, was granted a protection visa under the Act in 2011 and was recognised as a person to whom Australia has protection obligations; (2) the decision that the applicant is a refugee enlivens Australia’s non-refoulement obligations and means that to remove the applicant to Afghanistan would be a breach of Australia’s international non-refoulement obligations. He could be removed to another country, but there is currently no other country to which he could be removed; (3) by reason of a combination of ss 501E and s 46A(1) of the Act and the relevant provisions of the Regulations relating to Bridging R (Class WR) visas, the applicant is precluded from applying for another visa unless the Minister determines under s 46A(2) that s 46A(1) does not apply to the applicant in which case he can apply for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa; (4) the statutory consequences under the Act of the cancellation of the applicant’s visa are that he will become liable for removal from Australia as soon as reasonably practicable under s 198 of the Act and in the meantime, detention under s 189. Further, s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen; (5) that he has a personal non-compellable power under s 195A of the Act to grant a visa to the applicant if he considers that it is in the public interest to do so; and (6) the applicant will face a real risk of serious and significant harm in Afghanistan on account of his race, religion, imputed political opinion and on the basis of being a returnee from a western country. As already noted, at the same time as he made his decision, the Minister indicated that he did not require a submission with respect to, or the opportunity to discuss, alternative management options, “such as another visa under s 197A or a residence determination under s 197AB”.
THE ISSUES ON THE APPEAL AND IN THE APPLICATION
In his Notice of appeal, the Acting Minister raises five grounds of appeal. In Ground 1A, it is alleged that the primary judge erred in fact by finding that the Acting Minister deferred consideration of the significance of Australia breaching its international non-refoulement obligations to the last stage of his decision-making process and in failing to find that the Acting Minister considered the implication of Australia breaching its international obligations in assessing the national interest, but concluded that it was not material to his assessment of the national interest. If this ground succeeds, then Ground 2B is engaged and in that ground it is alleged that the primary judge erred in law in holding that the Acting Minister would have acted irrationally or unreasonably in determining that Australia’s non-refoulement obligations were not material to the national interest in this case.
In the alternative to Ground 1A, the Acting Minister alleges in Grounds 1 and 2A that the primary judge erred in law in holding that the Acting Minister erred in his understanding of the law with respect to the “national interest” in s 501A(2) of the Act (Ground 1) and that the primary judge erred in law in holding that the Acting Minister acted unreasonably by deferring his consideration of Australia’s non-refoulement obligations to the exercise of the discretion in s 501A(2) of the Act (Ground 2B).
In Ground 3 which is related to Grounds 1 and 2A, the Acting Minister alleges that the primary judge erred in fact or law in treating the accepted position that any breach of Australia’s non-refoulement obligations may affect Australia’s international reputation and standing as if it was a fact that it would do so in this particular case, such as to render the Minister’s consideration of the “national interest” unreasonable.
CWY20 has filed a Notice of contention in the appeal in which he alleges that the decision at first instance should be affirmed on grounds other than those relied on by the Court below. Those grounds are that the Minister’s purported decision dated 16 July 2020 was affected by jurisdictional error because the Minister misconstrued s 501A(2) as conferring a “residual discretion” to refuse or not to refuse the visa application. CWY20 contends that the Minister proceeded on the basis that he possessed a residual discretion to refuse or not to refuse an application for a visa if he formed the state of satisfaction that the criteria in s 501A(2)(c), (d) and (e) of the Act were satisfied and that on the proper construction of s 501A(2), the section does not confer on the Minister a residual discretion as to whether to refuse to grant a visa to a person. In other words, the submission is that once the Minister reaches the state of satisfaction as to the criteria in s 501A(2)(c), (d) and (e), then the Minister is obliged to set aside the original decision and refuse to grant a visa to that person. CWY20’s submission is that the Acting Minister did not proceed in this way and, in those circumstances, the Acting Minister has proceeded to exercise the power based on a material misconstruction or misunderstanding of s 501A(2) and his purported decision is affected by jurisdictional error.
In the application, the grounds which are to be heard and determined before the other grounds are Grounds 5 and 5A. Ground 5 is to the effect that the Minister asked himself the wrong question because the structure of s 501A(2) was to the effect that the Minister was granted a discretion to set aside the original decision and cancel a visa that had been granted to a person upon, and only upon, satisfaction of each of the three subjective jurisdictional facts referred to in s 501A(2)(c), (d) and (e).
Ground 5 of the application is as follows:
5.The Minister’s 501A(2) decision is vitiated by error – asking the wrong question.
Particulars
(a) The structure of s 501A(2) shows that Parliament has:
a. granted to the Minister a discretion to:
i. set aside the original decision; and
ii. cancel a visa that has been granted to a person,
(chapeaux to subs (2) and par (b));
b.upon, and only upon, each of three subjective jurisdictional facts exists (pars (c), (d) and (e)).
(b)The Minister wrongly construed s 501A(2) as requiring, alternatively permitting, a decision where he would:
a.first, ask himself whether he was satisfied that cancellation of the Applicant’s visa was in the national interest; and
b.next, ask himself whether he would exercise a discretion to cancel, by supposedly taking into account factors which he considered weighed against cancelling the Applicant’s visa (in respect of which visa, he was by then already satisfied that cancellation was in the national interest), and those factors which he considered weighed in favour of cancelling.
(c)Additionally and/or alternatively, the Minister wrongly considered that s 501A(2) either mandated him or permitted him to exclude, from consideration of par (e), compliance by Australia with its international obligations, which he would only consider, if in fact he chose to do so, as part of some kind of residual discretion, when weighing such factors he would identify as either against or in favour of cancelling the Applicant’s visa.
This ground raises a similar point to that raised by the Notice of contention in the appeal, with the addition perhaps of an allegation as to materiality in paragraph 5(c).
Ground 5A alleges that the Minister’s decision was vitiated by legal unreasonableness and a failure to have regard to a relevant consideration. The factual basis for both grounds of jurisdictional error is the Minister’s treatment of the implications of Australia breaching its non-refoulement obligations.
Ground 5A of the application is as follows:
5A. The Minister’s 501A(2) decision is vitiated by one or more errors –
a. absence of reasonableness;
b. failure to have regard to a relevant consideration.
Particulars
(a)By wrongly proceeding as pleaded in Ground 5, the Minister among other matters, prevented himself from considering whether Australia’s compliance with international obligations, in particular the Refugees Convention and CROC, and/or good international standing, are part of the national interest.
(b)Additionally and/or alternatively, the Minister failed to have regard to a consideration relevant to what is in the national interest when:
a.possible exercise of the power in s 501A(2) to cancel a person’s visa (in this case, a permanent visa) is being considered by the Minister; and
b.Australia owes protection obligations to the person,
namely Australia’s non-refoulement obligations.
(c)Additionally and/or alternatively, it was unreasonable for the Minister to:
a.recognise that a decision to set aside the AAT decision and cancel the Applicant’s visa would enliven the obligation under s 198 (when read with s 197C) to have the Applicant removed from Australia which would be in breach of its international non-refoulement obligations;
b.decide, at the same time, that he would not exercise another power available to him which would avoid the Applicant being removed from Australia to his country of origin – noting that:
i.in the Statement of Reasons, signed and dated by the Minister, it is stated that the Minister was ‘mindful that even if I cancel [the Applicant’s] visa, I have a personal non-compellable power in s 195A of the Act to grant a visa to him if I think it is in the public interest to do so’;
ii.The Minister did not disclose, in either the Statement of Reasons or the record of the decision given to the Applicant, that the Minister had already decided not to exercise the power in s 195A; and
c.fail to consider Australia’s non-refoulement obligations in assessing whether it was in the national interest to set aside the AAT decision and cancel the Applicant’s visa.
This ground raises similar issues to those raised by Grounds 1, 2B and 3 of the appeal. There are differences between the appeal and the application in terms of the classification of the alleged jurisdictional error, but, as will be seen, those differences are not as significant as they first seem.
IS THERE A DISCRETION UNDER S 501A(2) OF THE ACT? (THE NOTICE OF CONTENTION IN THE APPEAL AND GROUND 5 OF THE APPLICATION)
Submissions in support of the argument that the Minister did not have a discretion under s 501A(2) of the Act were made by the applicant in the application. Counsel for the respondent in the appeal had not raised this argument before the primary judge, and before this Court he was content to rely on the applicant’s submissions on the application.
Section 501A of the Act relevantly provides:
501ARefusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)
(1) This section applies if:
(a)a delegate of the Minister; or
(b)the Administrative Appeals Tribunal;
makes a decision (the original decision):
(c)not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d)not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;
whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.
Action by Minister—natural justice applies
(2) The Minister may set aside the original decision and:
(a)refuse to grant a visa to the person; or
(b)cancel a visa that has been granted to the person;
if:
(c)the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d)the person does not satisfy the Minister that the person passes the character test; and
(e)the Minister is satisfied that the refusal or cancellation is in the national interest.
…
Minister’s exercise of power
(5)The power under subsection (2) or (3) may only be exercised by the Minister personally.
(6)The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.
…
The applicant submitted that the Minister must set aside the original decision and cancel a visa that has been granted to a person if each of the matters in s 501A(2)(c), (d) and (e) are satisfied and there is no discretion to refrain from setting aside the original decision and cancelling the visa. In other words, once the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test, and the Minister is satisfied that the refusal or cancellation is in the national interest, then the Minister must set aside the original decision and cancel the visa. The applicant submitted that the Minister clearly proceeded on the basis that he had a discretion to cancel the applicant’s visa taking into account the factors that he considered weighed against and in favour of cancelling the applicant’s visa. In so doing, the Minister misunderstood the law and that constituted a jurisdictional error.
As I have said, the respondent in the appeal did not raise this argument before the primary judge. His Honour proceeded on the basis that there is a discretion after the matters in s 501A(2)(c), (d) and (e) have been considered. He identified (correctly in my view) the difference between the discretion under s 501A(2) and the evaluative exercise or task required by s 501(2)(e). His Honour said (PJ at [79]):
I do not consider that the Minister’s residual discretion whether or not to exercise the power of refusal or cancellation is of a similar character to the satisfaction which has to be found as to whether or not refusal or cancellation is in the national interest. The former may properly be described as a discretionary power. The latter is of a different character. In determining whether or not he or she is satisfied that refusal or cancellation is in the national interest the Minister is not exercising a discretionary power, but is rather forming an evaluative judgment, as the plurality acknowledged in Graham at [57]. …
It is clear that the Minister, whose decision is the subject of the application, proceeded on the basis that there is a discretion under s 501A(2) of the Act. The Minister said:
Having found that [the applicant] does not pass the character test and that it is in the national interest to cancel [the applicant’s] visa, and having assessed the information set out in the ministerial submission and attachments, I considered whether to exercise my discretion to cancel [the applicant’s] visa, taking into account factors that I considered weighed against and in favour of cancelling [the applicant’s] visa …
The Acting Minister used almost identical words in his reasons which are the subject of the appeal.
I have reached the conclusion that there is a discretion under s 501A(2) of the Act. The following matters support that conclusion.
First, the use of the word “may” in s 501A(2) is significant. As a matter of statutory construction, the prima facie presumption is that permissive or facultative expressions operate according to their ordinary natural meaning. In Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505, the High Court said:
In considering the correctness of this interpretation it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. “The authorities clearly indicate that it lies on those who assert that the word ‘may’ has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning” – per Cussen J.: Re Gleeson. “The meaning of such words is the same, whether there is or is not a duty or obligation to use the power to which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is solved from the context, from the particular conferring the power” – per Lord Selborne: Julius v. Bishop of Oxford.
(Citations omitted.)
Section 33(2A) of the Acts Interpretation Act 1901 (Cth) is to similar effect as the rule or principle at common law. The section provides as follows:
Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.
In view of the clear application of the principle at common law, it is unnecessary to consider an issue about the application of s 33(2A) to s 501A(2) of the Act identified by the Minister, namely, whether the Act was assented to after the commencement of s 33(2A).
Secondly and relatedly in this case, the prima facie presumption which arises as a result of the use of the word “may” is reinforced by the fact that the Parliament has used the word “must” (or shall) in Part 9 of the Act when it intends to create an obligation. Examples in the Act are ss 501(3A), 501C(3), 501C(8), 501C(9), 501CA(3), 501G(1), 498(1), 499(2A) and 499(3).
Thirdly, in the case of a section in broadly similar terms, and also in Part 9 of the Act, (s 501(3)), the High Court in Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 (Graham) at [58] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ proceeded on the basis that the section conferred a discretion, although at the same time it must be noted that the existence or otherwise of a discretion was not an issue in the case.
Fourthly, in his decision which is the subject of the application, the Minister considered a number of matters personal to the applicant as part of the exercise of his discretion under s 501A(2). They are personal because they relate to the applicant’s particular circumstances such as the impact on minor children, the strength, nature and duration of ties to Australia and the impediments he will face if he is removed from Australia. The Acting Minister did a similar thing in his decision which is the subject of the appeal. In Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505, Kiefel and Bennett JJ, in addressing the power in s 501(2) of the Act, said the following (at [74]):
… If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.
In Applicant S270/2019 , Nettle, Gordon and Edelman JJ, in the course of considering whether non-refoulement obligations were a mandatory relevant consideration under s 501CA(4), made the following observations (at [33]–[35]):
33Although mandatory relevant considerations may be identified by reference to the text, subject matter, scope and purpose of the statute, there is nothing in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim.
34That conclusion is reinforced by the fact that non-refoulement is addressed separately in the Act in provisions concerning the grant of protection visas (being a class of visa created specifically to allow decision-makers to grant visas to persons who cannot be removed from Australia consistently with its non-refoulement obligations under international law) and in the context of removal . Given those express provisions, it would be contrary to the apparent scheme of the Act to construe general provisions concerning the cancellation of visas of all kinds on character grounds, or the revocation of mandatory cancellations on such grounds, as requiring consideration of non-refoulement, or at least in cases where the specific provisions concerning protection visas are available to an applicant who wishes to invoke them and non-refoulement has not been squarely raised. It is unnecessary to decide, however, whether consideration of that matter can be deferred where a non-refoulement claim is made in a revocation request.
35Put in different terms, it is through express provisions in the Act that Australia’s non-refoulement obligations under international law have been implemented in Australian domestic law; and, if a non-citizen affected by cancellation seeks to have the Minister consider non-refoulement and remains free to apply under those express provisions for a protection visa, the Minister is not required to consider non-refoulement unless a claim for a protection visa is made.
(Citations omitted.)
Neither s 501(2) which was in issue in Le, nor s 501CA(4) which was in issue in Applicant S270/2019, contained consideration of the national interest as a condition for the exercise of the power. In the case of the appeal and the application, both persons have been recognised as persons to whom Australia owes protection obligations and, in the case of the application, the applicant was in fact granted a protection visa some years ago. The visa in issue in the appeal is a species of protection visa. On the findings of the decision-maker in each of the appeal and the application, a decision adverse to the person in each case means that he is precluded from making any application for a visa in the future. In each of the appeal and the application, Australia’s non-refoulement obligations have been raised in the decision-making process and clear findings as to their significance have been made by the decision-makers.
In my opinion, the implications of Australia breaching its non-refoulement obligations or, more simply, Australia’s non-refoulement obligations, is not a mandatory relevant consideration in the case of the power in s 501A(2) of the Act in the sense of a consideration to be taken into account in every case (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–42 per Mason J (as his Honour then was)). There are no doubt cases under s 501A(2) where Australia’s non-refoulement obligations are not raised and are not relevant.
In the appeal, the Acting Minister challenged the primary judge’s conclusion that he had reasoned unreasonably on three main grounds.
First, he submitted that bearing in mind that Australia’s non-refoulement obligations is not a mandatory relevant consideration in the decision-maker’s consideration of the national interest under s 501A(2)(e) of the Act, it would be a decidedly odd result to conclude in those circumstances that, nevertheless, the Acting Minister acted unreasonably because he failed to take into account Australia’s non-refoulement obligations as part of the national interest. As I understood the argument, it was that a conclusion of legal unreasonableness was effectively a failure to take into account a mandatory relevant consideration under another guise. In my opinion, there is no incongruity or oddity in holding that Australia’s non-refoulement obligations is not a mandatory relevant consideration in every case and in concluding that, in a particular case, a failure to consider Australia’s non-refoulement obligations in the context of the national interest gave rise to a state of satisfaction as to the national interest not attained reasonably.
Secondly, the Acting Minister submitted that there is little indication in the Act to suggest Australia’s non-refoulement obligations should be considered as part of the national interest in the decision-making process under s 501A(2). There are the provisions which comprise the protection visa regime (ss 5H, 5J, 35A, 36, 37A, 91A–91X) and none of those provisions are engaged. There is s 197C of the Act where Parliament has addressed the significance of Australia’s non-refoulement obligations, albeit in a way that makes it clear that they are irrelevant for the purpose identified in the section.
Section 197C, to the extent presently relevant, provides as follows:
197C Relevance of Australia’s non refoulement obligations to removal of unlawful non-citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
In my opinion, the answer to this second argument is similar to the answer to the first argument. The protection visa regime and s 197C support the view that Australia’s non-refoulement obligations are not a mandatory relevant consideration in the consideration of the national interest pursuant to s 501A(2), but they say nothing, or very little, about whether it was legally unreasonable for the Acting Minister not to consider the implication of Australia’s non-refoulement obligations in the particular circumstances of the case. Furthermore, it should be noted that s 197C of the Act operates in a particular context and at a particular stage, that is, for officers at the stage of removal.
Thirdly, the Acting Minister submitted that although it was open to him to consider and accord some weight to the impacts on Australia’s reputation and relationships with other countries of a breach of its non-refoulement obligations as part of his assessment of the national interest, he could not be, and was not, bound to do so. The effect of the primary judge’s conclusion of unreasonableness was that the Acting Minister was so bound and that was an error for the following three reasons.
The first reason is that the primary judge’s approach involved a construction of s 501A(2)(e) of the Act which requires the Court to pass judgment on sensitive topics of foreign relations. It requires the Court to determine the effect, or likely effect, on Australia’s reputation or international relationships of non-compliance by the executive government with international legal obligations. Those reputational and relational matters and their bearing on the national interest are, as the Acting Minister put it, “so within the core political conception of the national interest that they are committed by the Act to the Minister personally, such that the Minister’s assessment of whether they should be given weight in any given case would not readily be characterised as irrational or unreasonable in the exacting legal sense”. In discerning the “boundaries” of the national interest, regard must be had to the extent to which the matters said to be within the national interest are especially within the competence of the executive branch of government.
The Acting Minister pointed to the fact that Courts traditionally exercise restraint in construing conferrals of power where matters of international relations or comity are involved (see, for example, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 at [250]–[258] per Keane J). Furthermore, the effect of Australia not complying with a treaty or convention is ordinarily a matter of sensitive judgment for the executive branch of government and not for the Courts. In Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1, Mason J said (at 125–126):
In any event, as I observed in Koowarta, the Court would undertake an invidious task if it were to decide whether the subject-matter of a convention is of international character or concern. On a question of this kind the Court cannot substitute its judgment for that of the executive government and Parliament. The fact of entry into, and of ratification of, an international convention, evidences the judgment of the executive and of Parliament that the subject-matter of the convention is of international character and concern and that its implementation will be a benefit to Australia. Whether the subject-matter as dealt with by the convention is of international concern, whether it will yield, or is capable of yielding, a benefit to Australia, whether non-observance by Australia is likely to lead to adverse international action or reaction, are not questions on which the Court can readily arrive at an informed opinion. Essentially they are issues involving nice questions of sensitive judgment which should be left to the executive government for determination. The Court should accept and act upon the decision of the executive government and upon the expression of the will of Parliament in giving legislative ratification to the treaty or convention.
(Citation omitted.)
Justice Brennan (as his Honour then was) said (at 219):
Indeed, an inquiry into the extent to which a failure to fulfil a treaty obligation has the capacity to affect Australia’s relations with other countries is an inquiry that could hardly be pursued by this Court without advice given by the executive government.
In essence, the Acting Minister’s submission is that the primary judge’s conclusion necessarily involved a conclusion by the Court that the Acting Minister was required to place particular weight on the reputational or relational impacts of breaching international non-refoulement obligations and thereby appropriating without justification to the Court the function of determining from case to case “what the reputational and relational effects of breach are likely to be” and to require the Court “to pass judgment on sensitive questions of foreign relations between Australia and other countries”.
I do not accept this submission. It involves a considerable overstatement of the primary judge’s approach to the extent of judicial review of the Acting Minister’s decision and his conclusion with respect to the national interest in particular.
As I have said, the primary judge concluded that the Acting Minister gave no consideration to the implications of Australia breaching its non-refoulement obligations in the context of his assessment of the national interest and the Acting Minister’s challenge to that conclusion fails. Although it is true that the primary judge held that Australia’s breach of its non-refoulement obligations had to be considered as part of the consideration of the national interest in order for the Acting Minister to meet the requirement of acting rationally and reasonably, the primary judge made it clear that the weighing process was a matter for the Acting Minister and not for the Courts (see PJ at [119]). Even if, contrary to my view, Ground 1A should be upheld and it should be concluded that the Acting Minister considered Australia’s breach of its non-refoulement obligations in the context of his consideration of the national interest and decided that those obligations were not material in that context, the primary judge did not then engage in a weighing process, but rather went no further than saying that the Acting Minister, acting rationally and reasonably, could not have concluded that Australia’s breach of its international legal obligations was immaterial to his assessment of Australia’s national interest (PJ at [135]).
As wide as the Minister’s power to determine what is and is not in the national interest may be, and fully recognising the extent to which political considerations are relevant to the exercise of the power, nevertheless, the power has boundaries and it is the responsibility of the Court to identify those boundaries when called upon to do so. The requirement that the Minister attain his state of satisfaction under s 501A(2)(e) reasonably places that obligation on the Court.
Furthermore, the context in this case is considerably broader than whether non-compliance with a convention “is likely to lead to adverse international action or reaction”, to use the words of Mason J in The Tasmanian Dam Case. Not only is ratification by Australia of an international convention not to be dismissed as a merely platitudinous or ineffectual act, as Mason CJ and Deane J said in Teoh (at 291), but also, as their Honours said, ratification of a convention is a positive statement by the executive government of this country not only to the world, but also to the Australian people that the executive government and its agencies will act in accordance with the convention. In addition, positive statements that Australia will not remove a person in breach of non-refoulement obligations appear in the Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (the Explanatory Memorandum) and in Direction 79 issued by the Minister under s 499 of the Act (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA).
The second reason advanced by the Acting Minister is that it cannot be assumed that in every case weight must be given in the national interest assessment to the consequences of a breach of non-refoulement obligations. He submitted that it is uncontroversial that the character concerns enlivening the exercise of power, including the seriousness of the criminal conduct and the risk of reoffending, are matters that can weigh, and can weigh decisively, in the assessment of the national interest. Although the second proposition is undoubtedly correct, I do not accept the first. The Acting Minister submitted that in a case such as this where the offending is of a sexual nature and there was a finding of a risk of reoffending, it could not be said that it was irrational or unreasonable of the Acting Minister to place no weight on the implications of Australia’s breach of its non-refoulement obligations. With respect to this submission, the first point to note is that in view of the rejection of Ground 1A, the case is one of the Acting Minister not considering the implications of Australia’s breach of its non-refoulement obligations and not one of the Acting Minister considering that matter and deciding that it is immaterial to the national interest. In any event, I do not accept that in a case such as the present it would be open to the Acting Minister to dismiss the implications of Australia’s breach of its non-refoulement obligations as of no weight or immaterial insofar as it is suggested that he could have done that and any error was immaterial. In the particular circumstance of this case, it was necessary for the Acting Minister to recognise the implications of Australia breaching its non-refoulement obligations in his assessment of the national interest, although the precise weight to be accorded to it and how it was to be balanced against other factors was a matter for the Acting Minister and the Acting Minister alone.
The third reason advanced by the Acting Minister reflects Ground 3 of the appeal. It is that no finding can be made about the implications of Australia’s breach of its non-refoulement obligations in terms of its reputation and relations with other countries in the absence of actual evidence that such matters would be harmed.
The primary judge said that the Court was entitled to take judicial notice of the fact that acting inconsistently with international law obligations may undermine confidence externally. The primary judge was entitled to make this finding. The obligation was voluntarily assumed by Australia under international law and involved a number of other countries. Furthermore, the broader context is again relevant. The assumption of the international law obligations and the statements in the Explanatory Memorandum and in Direction 79 were positive statements to the Australian people and the primary judge did not err in also concluding that acting inconsistently with international law obligations may undermine confidence within Australia. Compliance with international law obligations was an aspect of the national interest.
The primary judge was clearly right to conclude that the step in the decision-making process at which the Minister considers the implications of Australia breaching its non-refoulement obligations is important. He noted, correctly in my view, that had the Acting Minister considered the implications of Australia breaching its non-refoulement obligations as part of his consideration of the national interest, there was at least a possibility that he may have given different weight to the national interest when balancing it with other considerations which were relevant to the exercise of his discretion. Furthermore, as the primary judge noted (PJ at [136]) there was at least a possibility that the Acting Minister may have reached a different conclusion on whether he was satisfied that the refusal was in the national interest and, if the precondition in s 501(2)(e) to the exercise of his power was not met, he would not have progressed to consider his residual discretion.
For these reasons, the appeal must be dismissed.
With respect to the application, the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the materials before the Minister and, subject to one matter, the Minister made the same findings as the Acting Minister made in the decision which is the subject of the appeal. Those findings include a finding by the Minister that Australia owed non-refoulement obligations to the applicant and that refusing him a visa would put Australia in breach of those obligations. The Minister’s decision to cancel the applicant’s visa meant that he would be refouled in breach of Australia’s obligations under international law. The one difference between the application and the appeal is that in the application the Minister did not make a finding that there was an accepted risk that the applicant would be killed if he was returned to his country of origin. However, that is not a material difference for the purposes of the analysis set out above. In those circumstances, the same conclusion follows in the case of the application as follows in the case of the appeal. In the application, that is that the Minister made a jurisdictional error in his decision made on 7 December 2020 in that he did not attain his state of satisfaction under s 501A(2)(e) as to the national interest reasonably.
CONCLUSIONS
The appeal must be dismissed with costs. The parties will be heard as to the appropriate orders in the application in light of these reasons.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate:
Dated: 9 November 2021
REASONS FOR JUDGMENT
KERR J:
As with all other members of the Court I have had the very considerable benefit of reading the reasons of Besanko J in draft. I concur with his Honour in the outcome. Save in one respect which is not material to that outcome I also respectfully adopt everything which Besanko J states in his Honour’s reasons.
I have also had the very considerable benefit of reading the additional concurring reasons of Allsop CJ in draft. I concur with and adopt all of what the Chief Justice states in those additional reasons.
The one qualification in respect of Besanko J’s reasoning I record is advanced on the premise, as his Honour notes at [150], that the primary judge proceeded on the basis that the implications of Australia breaching its non-refoulement obligations had not been submitted to be a mandatory relevant consideration in the consideration of the national interest in s 501A(2)(e) of the Act.
Besanko J concludes, as I do for the reasons his Honour sets out, that the Minister’s appeal is to be dismissed on the basis of the correctness of the primary judge’s reasoning.
In that circumstance I am unpersuaded it is necessary for the Court to express a concluded view as to whether Australia’s non-refoulement obligations in the applying statutory context might, or might not, be a mandatory relevant consideration for decision making in the Minister v Peko-Wallsend sense. The question answered by his Honour at [155] in my opinion does not require determination. Its resolution can await a case in which a decision is required.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr. Associate:
Dated: 9 November 2021
REASONS FOR JUDGMENT
CHARLESWORTH J:
I have had the benefit of reading the reasons of Besanko J and the additional reasons of the Chief Justice. I agree with each of them.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 9 November 2021
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