Applicant S270/2019 v Minister For Immigration and Border Protection

[2020] HCATrans 103

[2020] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S47 of 2020

B e t w e e n -

APPLICANT S270/2019

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON WEDNESDAY, 5 AUGUST 2020, AT 10.05 AM

Copyright in the High Court of Australia

MR S.E.J. PRINCE, SC:   If the Court pleases, your Honours, I appear with my learned friends, MR S.G. LAWRENCE and MR I. CHATTERJEE for the appellant.  (instructed by Purcell Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friend, MS R.S. FRANCOIS, for the respondent.  (instructed by Mills Oakley)

KIEFEL CJ:   As the parties will see, Justice Edelman and I appear from Brisbane by video link, Justice Gageler from Sydney, and although you cannot completely see them, Justices Nettle and Gordon appear from Melbourne.  Yes, Mr Prince.

MR PRINCE:   Thank you, your Honours.  This matter involves the nature of the statutory power under section 501CA of the Migration Act and the significance of the appellant’s status or likely status as a “refugee” within the meaning of the Refugee Convention as recognised by Australia at the time that he was brought here as a child refugee from a refugee camp in Hong Kong, having fled Vietnam in the aftermath of the Vietnam War.

The relevant facts in terms of the background of the appellant that give rise to this issue about his status under the Refugee Convention and the consequences of any cancellation of his visa can be seen in the core appeal book at pages 43 to 44.  In light of the suppression orders, your Honour, I will not refer to the title of the decision of the Full Court of the Federal Court.  I will just, rather, take your Honours to the core appeal book, if that is convenient.

KIEFEL CJ:   Yes.

MR PRINCE:   In the reasons of his Honour Justice Greenwood, his Honour sets out some of the factual background at paragraphs 21 and 22, and 21 includes the remarks from the sentencing judge in relation to the offence that gave rise to the cancellation.  His Honour noted in those remarks - he took particular note of the fact that his – that is, the appellant’s:

background included the traumatic experience of having been a refugee in a Hong Kong refugee camp for a number of years.  There can be few experiences for anybody more likely to be more damaging to a person’s conception about proper conduct than being dislocated and placed in the difficult circumstances of a refugee camp.  There is an important decision of the New South Wales Court of Criminal Appeal called R v Fernando in which the Court talked about the significance in sentencing even for grave crimes of gross dislocation during childhood.  In that case, although it dealt specifically with the problems of Aboriginal family and cultural dislocation, [the Court] made the point that such a factor is relevant in sentencing not only for people of an Aboriginal background but also for people of other backgrounds where corresponding desperate circumstances apply in the early years of an offender’s life.

As to the appellant’s “traumatic” and, in many ways, tragic, background, it should be noted that the appellant came to Australia with his brother from a refugee camp in Hong Kong.  His parents had arranged for the appellant and his older brother to flee Vietnam to Hong Kong.  The appellant was then aged only eight.  [His brother] was 15…..when he arrived in Australia on 7 June 1990 having spent seven years in a Hong Kong refugee camp.  The appellant was born –

in April 1975 shortly before the fall of Saigon.

His only relative in Australia was his brother.  Thereafter, the appellant sought to make a life for himself and his family in Australia. 

Notwithstanding that Justice Greenwood was in dissent on the result, the other members of the Court, Justices Charlesworth and O’Callaghan, at paragraph 152 on page 77 of the core appeal book, adopted the narrative of background facts in Justice Greenwood’s reasons. 

KIEFEL CJ:   Mr Prince, it must be acknowledged, of course, that the narrative that you refer to was in the context of what was then the sole ground of appeal before the Full Court, which is not the ground that we are dealing with now.

MR PRINCE:   Yes, of course.

KIEFEL CJ:   The one question identified then was whether there was a potential for the appellant to reoffend and whether that was legally unreasonable.  At special leave it was acknowledged that what is now agitated, the failure to exercise jurisdiction or discharge what is said to be a statutory obligation in relation to consideration of non-refoulement, is now raised so that the narrative that you refer to and the references to the appellant having been in a refugee camp is not, of course, by way of any kind of finding that he is a refugee. 

Speaking for myself, what I understand to be the critical question for you today is the factual premise for the statutory obligation to consider non‑refoulement and that, of course, is whether the appellant can be considered a refugee or what is the necessary premise?  Is it - does he have to be found to be a refugee or is it sufficient, as I understand your submissions to go, that he might have been a refugee, although no such finding was ever made?  Is that the essential question that we are facing today?

MR PRINCE:   Your Honour, it is certainly a question that in my submission is probably less significant – I would put less significance on it than your Honour has.  Can I say why?  The background facts are not really in dispute and the recitation that I have taken your Honour to sets out the circumstances of the appellant. 

How that gets characterised in terms of whether it throws up the likelihood of his recognition – status under the Refugee Convention flows also from the timing of events and the comprehensive plan of action which I will take your Honours to in a moment.  But ultimately the Full Court obviously was not dealing with making a declaration that he was a refugee and it has not determined that he was a refugee and that issue was not before them, and frankly they could not determine that he was a refugee in any event.  That is really a matter for the Minister. 

KIEFEL CJ:   The background facts you say are not contested and they include the fact that there has never been any curial finding or finding at an administrative level that the appellant is or was a refugee.

MR PRINCE:   There has not been a curial decision, of course.  In terms of whether there has been an administrative finding there is a dispute between us which perhaps is a result of the change to the Act on 30 June 1992.  I will take your Honours in due course to the case of Huynh which my learned friend places some significance on in the written submissions.  But in Huynh they were dealing with some refugees who came out of – or sorry, some people who came out of Malaysia on a Class 200 visa and arrived in Australia at a time where the Migration Act had changed so that refugee status was accorded through the visa determination process, and that is familiar to us all now because that is the way it has been done ever since that change had occurred. 

But prior to that change on 30 June 1992 the acceptance of whether or not a person was a refugee by the Australian Government for the purposes of engaging its international obligations was done administratively.  True it is that there was no determination in granting whatever class of visa is ultimately given that in fact he was a refugee, because it simply was not part of the visa determination process at the time.

But can I say the fact…..or consequences that flow from them are well in dispute.  The fact that he arrived at a particular time from a refugee camp in Hong Kong is obviously not disputed.  The fact that he went there from Vietnam at a particular time is not disputed.  Those essential facts feed into the comprehensive plan of action, which was made in 1989 and which recognised or created different classes of people who were in those camps at that time.

My client was in the former category ‑ that is, the ones who came before the switch in 1989 to individual status determination.  That was a significant switch occurring at the end of the Cold War when the Cambodian peace plan was being…..in 1989 and a comprehensive plan of action was said to respond to people who had arrived - Indo-Chinese asylum seekers who had been arriving in the late 80s and in respect of whom the international community started to believe that they were not genuine refugees.  My client arrived in Hong Kong in the mid‑80s, prior to that change.

GAGELER J:   …..

MR PRINCE:   In 1982, in the early 80s prior to those changes, and so he was in the cohort of people who were called long stayers and who were resettled as part of a refugee resettlement program.  So, in my respectful submission – I will take your Honour in detail to those documents in a moment, but the essence of it is that the timing of these events and the terms of the CPA and, really, just commonsense means that the issue of him having status as a refugee under the Refugee Convention was clearly thrown up and it was something that the Minister ought to have looked into because of course ‑ ‑ ‑

KIEFEL CJ:   Mr Prince, you say that – is that despite the fact that he made no representation that he was a refugee, including when he was asked a direct question to that effect?

MR PRINCE:   Well, your Honour, he was not really asked a direct question to that effect and he did make representations that he was a refugee.  Your Honour will have seen in our outline and in our written submissions that the submissions that he made are replete with reference to the time of his arrival, the circumstances of his arrival, the fact that…..terrors in Vietnam….. 

So that although he did not seek assessment for a protection visa – that is true – and did not use words like “refoulement” in his application, what he said and the things that he said clearly and squarely raised the question of his status as a refugee under the Convention, in my respectful submission.  So that is something once raised that needs to be dealt with and the Minister did not deal with the consequences for Australia’s refoulement obligations in the reasons. 

The explanation for that, in my respectful submission, arises from the ministerial direction and, indeed, finds reflection in the memorandum that was sent to the Minister that talks about the ability of - the stated ability of my client to - has been not barred from applying for a protection visa.  Can I give your Honours a reference – that is at page 70 of the bundle of further materials at point 25 to 30.

KIEFEL CJ:   Mr Prince, just to be clear about it, I take it that you are relying upon the direction, Direction 65 of 2014, and the obligation it creates for a decision-maker to have regard to non-refoulement obligations, where relevant, and the matters there suggesting it might be relevant is either representations or the nature of the visa.  The nature of the 1994 visa would not, I think, put a decision‑maker on notice.  There is no direct representation.  I take the shape of your case to be that the history of the matter, as given by the appellant, together with the historical background in the memorandum was sufficient to make the matter relevant for the decision‑maker’s purposes.  That is what you are saying - that is your argument?

MR PRINCE:   Yes, your Honour.  Can I just briefly take your Honour to page 24 of the bundle of further materials, where part of Direction 65 is located. 

KIEFEL CJ:   Sorry, which bundle is this, Mr Prince?

MR PRINCE:   I think there is a bundle of further materials; there is a supplementary bundle of further materials.  I believe that this is in the book of further materials.  The page numbers - there are many of them - the page numbers I am using are on the top left‑hand corner, on this particular page.

KIEFEL CJ:   Yes, that is the direction itself?

MR PRINCE:   That is the direction.  Can I just take your Honours down to about point 35, and subparagraph (3) of item 14.1.  Do your Honours have that? 

KIEFEL CJ:   Yes.

MR PRINCE:   Your Honours will see:

Claims which may give rise to international non‑refoulement obligations can be raised by the non‑citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case –

That is not limited to visa classes.  However, there is of course the parenthesis which say that:

(such as where the non-citizen held a protection visa that was mandatorily cancelled) -

that would certainly be a fact that would make it clear that the issue of non‑refoulement arose.  Then paragraph (4) is quite important:

Where a non-citizen makes claims which may give rise to –

noting that derivative language:

international non‑refoulement obligations and that non‑citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non‑refoulement obligations are owed to the non‑citizen for the purposes of determining whether the cancellation of their visa should be revoked.

…..consideration of what could be another reason for revoking the cancellation in a way that the breadth of section 501CA does not contemplate.  It stultifies the breadth of 501CA, and that is the essence really here of the error because that notion from the direction – of course it is not binding on the Minister because the Minister made the decision, although, in my respectful submission it is certainly – it is a clear framework as to what the Minister believed to be the process engaged in under section 501 and there is no evidence that he disregarded it or took a different view.  Indeed, the evidence is consistent with him applying that guideline – if I can take your Honours briefly to page 70 of the bundle.  Do your Honours have that?

KIEFEL CJ:   Yes.

MR PRINCE:   At about point 25 on the page under the heading “International non‑refoulement obligations” which is a corresponding heading in the guidelines…..

KIEFEL CJ:   I am sorry, Mr Prince, from Brisbane we could not just hear what you said.  Would you mind repeating it?  I think sometimes when you drop your head the microphone does not pick it up.

MR PRINCE:   I will try to keep my head up, your Honour.  In 77, the appellant:

arrived in Australia as the holder of a Funded Special Humanitarian (subclass K4B12 visa). 

That is wrong by the way, of course, as we now know. 

In 2006 the department found that Australia did not owe protection obligations to [the appellant].  [The appellant] is not [barred] from applying for a protection visa. 

So the fact or the asserted fact that he was not barred from applying for a protection visa and the assessment in 2006 is the sum total of the consideration under the heading “International non‑refoulement obligations”.  It is unsurprising in light of that memo and in light of the direction that nowhere in the Minister’s reasons for decision which were, I understand…..in draft form -nowhere in those reasons is there any reference to the part of the guidelines dealing with international non‑refoulement obligations.  It simply was not addressed.

In my respectful submission, reading all of these matters and the reasons fairly and as a whole, it was not addressed because of the terms of Direction 65 that I have just taken your Honours to, that is, if it is believed that he is not barred from applying for a protection visa, those matters can be deferred and they are not appropriate for consideration in the process under section 501CA.

To return to my main proposition, that is not consistent with the scheme of 501CA of the Act because 501CA of the Act requires any reason that may lead to revocation that arises from the submissions to be given consideration.  So to excise from that broad statutory scope…..related to refoulement…..consideration as the guidelines already…..in particular circumstances where the view had been taken that a protection visa application could be made, that is to stultify the breadth of 501CA.

We do not say that 501CA contains a mandatory statutory requirement to consider non‑refoulement obligations in all cases.  What we say is the net in 501CA is cast broadly and the mandatory statutory considerations are a product of what arises in the submissions or in the representations.  Here, as I have said, the question of his status under the Refugee Convention by reason of the implementation of the comprehensive plan of action squarely arose on the matters that he put and, indeed, to some extent the process has been further undermined because notwithstanding…..contemplate…..come out of that non‑refoulement where there is ‑ ‑ ‑

KIEFEL CJ:   Mr Prince, we are having some difficulties, we did not hear the ‑ ‑ ‑ 

MR PRINCE:   Can you hear me now? 

KIEFEL CJ:   Yes, would you remind just repeating that last – your submission?

MR PRINCE:   …..with the connection if your Honour ‑ ‑ ‑

KIEFEL CJ:   We could not hear you then, Mr Prince. 

MR PRINCE:   It may be my connection, your Honour. 

KIEFEL CJ:   Justice Gageler, can you hear Mr Prince? 

NETTLE J:   We cannot hear him. 

GORDON J:   I am told, Chief Justice, that it may be Mr Prince’s connection. 

KIEFEL CJ:   Right.  There is not much we can do about that. 

MR PRINCE:   Can I ‑ ‑ ‑ 

KIEFEL CJ:   Can I just ask the Justices in Melbourne, is it breaking up or you cannot hear it at all? 

NETTLE J:   It is breaking up and sometimes we cannot hear it at all.  I think we hear…..

KIEFEL CJ:   You are breaking up too from our perspective.  Justice Gageler, how are you ‑ ‑ ‑

GAGELER J:   Mr Prince breaks up continuously and also the connections to Brisbane and Melbourne are patchy. 

KIEFEL CJ:   All right.  Mr Prince, we will try to go on for a bit longer, but we might just have to stand down and see what can be done and whether or not we have to revert to effectively a teleconference. 

MR PRINCE:   Yes, your Honour, I will do my best.  I had thought if it was my connection I could disconnect and try to reconnect, but I will just try that again. 

KIEFEL CJ:   Because I omitted to ask the Solicitor‑General who is in a conference room in Brisbane what the reception is there, Mr Solicitor?

MR DONAGHUE:   Your Honour, I think I am having the same difficulty that your Honours are having – it is breaking up in and out, which is sometimes occurring for your Honours’ remarks as well and when Justice Nettle answered your Honour’s question he was breaking in and out for me too, so I think I am having the same experience that your Honours are having. 

KIEFEL CJ:   I suggest we stand down for 10 minutes and we will ask our IT people to speak to Mr Prince and see if we can better the connections before we proceed further.  We will stand down for at least 10 minutes or when our IT people say that we can give it another shot.  The Court will adjourn.

AT 10.31 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.58 AM:

KIEFEL CJ:   Yes, Mr Prince, where were we?

MR PRINCE:   Thank you, your Honour.  Thank you for that time.  I was at page 70 of the bundle of further materials, lines 25 to 30, and I had been taking your Honours to that part of the memo which attached the reasons for the Minister’s consideration, which is under the heading “International non-refoulement obligations” which is one of the headings in Ministerial Direction 65.  It provides, at paragraph 77, that the appellant:

arrived in Australia as the holder of a Funded Special Humanitarian (subclass K4B12) visa.

That was wrong.

In 2006 the department found that Australia did not owe protection obligations to [the appellant].  [The appellant] is not [barred] from applying for a protection visa –

So the submissions I had been making just before the technology went wrong was that that memo, that part of the memo, together with the absence of any reference in the reasons to international non-refoulement obligations and Ministerial Direction No 65, which this memo clearly references in substance, and reading the reasons fairly and as a whole, lead to the conclusion that the Minister, consistently with the ministerial direction, switched off consideration of whether or not Australia’s international non-refoulement obligations had a role to play in this case - were relevant to section 501CA decision for revocation.  Again, that is consistent.

GAGELER J:   What if the Minister had just picked up the substance of paragraph 77 in his statement of reasons and said there may be a question about non‑refoulement but [the appellant] is not applying for a protection visa.  Would that have been enough, in your submission?

MR PRINCE:   No, your Honour, because that would indicate, consistently with the ministerial direction, that the question of non‑refoulement is being deferred or placed into the question of whether or not he is barred from applying for a protection visa.  That is because, when we come back to Ministerial Direction No 65 at page 24 of the book and 14.1(4), it is very clear in terms that it is considered unnecessary to determine whether non‑refoulement obligations are owed for the purposes of determining whether the cancellation of the visa should be revoked, where they could make a valid application for another visa.  So that is ‑ ‑ ‑

NETTLE J:   What is logically wrong with that way of thinking?

MR PRINCE:   Because, your Honour, the consequences of revoking the visa are to expose the person to removal from Australia, mandatory removal from Australia under 198, and what is ultimately being done when a person is having their visa cancelled is that they are being expelled from the Australian community, they are being made unlawful, they are then exposed to mandatory removal from Australia.

Now, the mere possibility that they could then apply for another visa or that something else might turn up in the future or that it may be possible for them to find some way to stay here, that does not really deal with the legal consequences of the revocation – sorry, of the failure to cancel the visa under 501.  The consequences of…..the person is rendered an unlawful non‑citizen and liable to removal.  So there are two elements where that miscarries - if that is not given consideration, there are a couple of elements where that miscarries. 

First of all, the breadth of 501CA does not fetter the ability of the applicant to make submissions relevant to revocation in this way.  This is a gloss that has been placed on the breadth of section 501CA by the direction.  That has the effect of, as I said, carving out from consideration under the breadth of 501CA matters which otherwise would be clearly relevant or potentially another reason for revoking the decision to cancel the visa. 

EDELMAN J:  But you accept, do you, as I understand it, that a precondition for this argument is that submissions about non-refoulement have been made? 

MR PRINCE:   Submissions that give rise to – sorry, submissions which may give rise to international non-refoulement obligations, yes.  It does not have to be put in the legalistic fashion that is suggested in the Minister’s submissions.  The refugee does not, in my respectful submission, have to use the word “refoulement”.  The refugee has to raise the facts of a – the facts of a case must make it clear that Australia’s international non‑refoulement obligations are in play, and in my respectful submission ‑ ‑ ‑ 

EDELMAN J:   So the facts of the case must make it clear, or the facts raised and relied upon by the applicant must make it clear? 

MR PRINCE:   Yes, the facts raised by the applicant must make it clear.  I think that must be right.  If your Honours go back to page 24 of the bundle of further materials and the guidelines and subparagraph (3) of 14.1, your Honours will see that:

Claims which may give rise to international non‑refoulement obligations can be raised by the non‑citizen in a request to revoke . . . or can be clear from the facts of the case (such as where the non‑citizen held a protection visa that was mandatorily cancelled).

In answer to your Honour Justice Edelman’s question, it may on that analysis have arisen from something that the Department has provided the Minister, for example, the identification of a visa which is to be cancelled.  So that might not strictly arise from the submissions of the appellant.  But nonetheless it is something which has the potential to be another reason for revoking the cancellation decision.

NETTLE J:   Why can the Minister not say, “Look, there is no reason not to revoke this visa.  There may be a reason to grant a protection visa because of non‑refoulement obligations.  If there is, I’ll think about it when an application for such a visa is made”.

MR PRINCE:   That would be okay if he is not partitioning the issue of non‑refoulement.  So, if he says there is no reason to revoke the cancellation of a visa in this case although there might be claims brought down the track, that is a different proposition to saying, “I’m not going to consider refoulement obligations at this stage of the statutory process because there is another statutory process ‑ ‑ ‑

NETTLE J:   I am sorry, we are talking about a visa which is not a protection visa, ex hypothesi.  The Minister concludes on all the facts of the matter there is no reason not revoke this non‑refugee visa, thinking, “Well, there might be a reason to grant a protection visa because of non‑refoulement obligations, but I am not dealing with that at the moment.  I’m dealing with the cancellation of a non‑refugee visa”.

MR PRINCE:   Yes, but that again introduces a taxonomy into the class of visas in 501 which the place of 501CA does not bear.  It always has to be remembered that 501CA and 501 appear in the miscellaneous part of the Act that deal with visas across a whole range of situations.  So there is not a partitioning of visa classes within that such that protection visa applications get dealt with differently to other types of visas. 

The non‑refoulement obligations arise on Australia as a matter of international law because of – or potentially because of the appellant’s potential status as a refugee under the Refugee Convention.  It is very difficult to see how that could not potentially be a reason relevant to revoking the decision to cancel a visa and whether or not there is a different statutory process down the track does not abdicate responsibility in dealing with the particular statutory process which is under consideration, which is 501CA.

EDELMAN J:   You do not say that the reason is a mandatory relevant consideration.  What you say, as I understand it, though, is that the Minister here has effectively said, impliedly not expressly, there are non‑refoulement considerations in this case but I refuse to consider them in the circumstances of this case. 

MR PRINCE:   Yes, or he has overlooked it – or he just has not turned his mind to the refoulement issues in the case.

NETTLE J:   You say it is not open to the Minister to conclude that a non‑refoulement obligation, potential at least, is not relevant to a decision to cancel a non‑refugee visa?

MR PRINCE:   That is right and creating blanket rules like that really disengages the breadth of the discretion in 501CA.  It excludes from consideration matters which would clearly be relevant, that is the vice.

GAGELER J:   Relevant in a mandatory sense, Mr Prince?

MR PRINCE:   Yes, your Honour, in the circumstances of this case.  Relevant in a mandatory sense does not, again, come from – we do not suggest that in relation to an English student visa cancellation where the person has never ever been anywhere near the Refugee Convention that it would be a mandatory consideration to go through a tick‑a‑box exercise to work out whether the person was owed non‑refoulement obligations by Australia.  But in the circumstances of this case because the obligation – the mandatory relevant considerations in 501CA take their shape from the nature of the reasons which may support revocation and there is an opportunity to give submissions on that and here the submissions do throw up the issue of non‑refoulement under Australia’s international obligations, that is what makes, in this case, consideration of Australia’s non‑refoulement obligations under the Refugee Convention a mandatory relevant consideration.

GAGELER J:   So is your submission to the effect that a submission from a person whose visa has been revoked, which might reasonably be accepted by the Minister as a reason for revocation, becomes, by virtue of the submission having been made, a mandatory relevant consideration?  Is that the way you put it?

MR PRINCE:   Yes.

GAGELER J:   You are not relying on international legal obligations in some way being made, by virtue of that status, mandatory relevant considerations?

MR PRINCE:   That is correct.

GAGELER J:   So…..the point having been raised and being reasonably capable of being accepted by the Minister that mandatory relevant consideration arises?

MR PRINCE:   Precisely, because ultimately the question of what are mandatory relevant considerations to section 501CA come from the structure, context and purpose of that provision.  The structure, context and purpose of that provision is to provide an opportunity for…..to be made on revocation for any other reason.  It can be anything.  But genuine consideration has to be given to those matters which could result in revocation because it is important to remember that 501CA was introduced at the same time as…..

KIEFEL CJ:   Mr Prince, could you just repeat that last submission?

MR PRINCE:   Yes, thank you, your Honours. 

EDELMAN J:  We heard you right up until “501CA was introduced at the same time as”, and then you dropped out. 

MR PRINCE:   Thank you, your Honour.  It was introduced at the same time as 501(3A) - subsection (3A).  So subsection (3A) – these two provisions, 501CA and 501(3A), work in lockstep.  They are complementary.  Section 501(3A) mandates cancellation of a visa.  So the starting point is a cancelation of the visa.  There is no real process of analysis or judgment about that, it just follows the statutory criteria. 

The corresponding reprieve or benefit to that strict automated process is what appears in 501CA.  So 501CA is the means by which everything else in the universe that was not considered in 501(3A), which might lead to a different decision, is to be considered.  It is where the breadth of all the human circumstances of a particular individual in respect of whom such a devastating decision has been made get taken into account. 

So it picks up the breadth of any other reason for revocation and it gives an opportunity to make submissions about any other reason for revocation.  It does not bar or exclude or list the matters that can be considered.  It can include the impact on somebody’s auntie, it can include the impact – all sorts of impacts that no one could possibly foresee and draft in a piece of legislation that could apply to any non‑citizen at any given time on any visa and to exclude from that breadth a matter which must clearly otherwise be relevant, namely, Australia’s international non‑refoulement obligations where it is raised by the facts or the submissions, is to stultify the breadth of 501CA. 

That is what is being done in 14.1(4).  It is what is being done by trying to suggest that somehow there is an implicit restriction on the general power in 501 because of the very specific powers in section 36.  But, of course, section 36 is dealing with an entirely different subject matter and, once again, framers of legislation cannot anticipate every possible human circumstance or consequence of these matters, and this is a classic example because here we have a person who engaged Australia’s international protection obligations outside of this modern prescriptive framework for granting protection visas. 

At the time that the appellant came to Australia there was no visa process by which a statutory visa process could give him recognition as a refugee in Australia…..his circumstances…..did not apply to him at the time that he was brought here as a refugee.  It is to unduly restrict or narrow the breadth of 501CA.

I am not sure where I am up to in my oral outline, your Honours.  Would your Honours just give me a moment to see?  I think I have covered the nature of the statutory power under 501CA, which is topic A.  I have taken your Honours to the representations that the appellant is a refugee, and he told the Minister that.

I was going to take your Honours to the comprehensive plan of action and the history of the matter.  Perhaps I can do that now, in further materials 111.  It starts at 102, your Honours.  The first thing that might be noted is that this is a session of the General Assembly of the United Nations under the auspices of the Office of the United Nations High Commissioner for Refugees and it was the International Conference on Indo‑Chinese Refugees.  The objective of the conference is in item II, 2, at about point 45:

The objective of the International Conference on Indo‑Chinese Refugees was to adopt a new, comprehensive and solution-oriented approach to the problems posed by the continuing presence in the South‑East Asian region of large numbers of refugees and asylum‑seekers from Viet Nam and the Lao People’s Democratic Republic, and by their continuing exodus into the region.

What this comprehensive plan of action did was to turn a process of bulk recognition, which had been taking place until that point, into a process of individual refugee status assessment and that was to occur for people who arrived in Hong Kong after a particular date.  It is common ground that ‑ ‑ ‑

KIEFEL CJ:   Mr Prince, what part of this document do you say supports the notion of a bulk recognition of refugee status?

MR PRINCE:   If I can take your Honours to page 115, item E, paragraph 8:

8.        Continued resettlement of Vietnamese refugees benefiting from temporary refuge in South‑East Asia is a vital component of the Comprehensive Plan of Action.

1.         Long Stayers Resettlement Programme

9.        The Long‑Stayers Resettlement Programme includes all individuals who arrived in temporary asylum camps prior to the appropriate cutoff date and would contain the following elements:

(a)      A call to the international community to respond to the need for resettlement –

consistently with paragraph 8 above:

in particular through the participation by an expanded number of countries –

Then going down to (b):

A multi‑year commitment to resettle all the Vietnamese who have arrived in temporary asylum camps prior to an agreed date, except those persons already found not to be refugees under established status‑determination procedure and those who express the wish to return to Viet Nam.  Refugees will be advised that they do not have the option of refusing offers of resettlement, as this would exclude them from further resettlement consideration.

That is, it was only the people who were accepted by the states, the party states to this, who would be resettled under this comprehensive plan of action, and that is what happened to my clients.  They were brought…..camps in Hong Kong. 

There is no mechanism in this agreement for the resettlement of people who are not refugees and in fact people who are not refugees are excluded from resettlement, or people who have been found to be not refugees are excluded from resettlement.  I will just take your Honours to the case of Huynh which is in volume 5, if your Honours have volume 5 of the joint bundle of authorities.  In Huynh’s Case, as your Honours will see at page 1009 of the book:

Ms Huynh and the respondent travelled to Australia in 1992 -

There was a travel document issued to them in Kuala Lumpur on 4 August 1992.  Then their Honours note at paragraph 7, page 1009 – has your Honour Justice Gageler got the ‑ ‑ ‑

GAGELER J:   No, I do not know what we are looking at, Mr Prince.

MR PRINCE:   I am so sorry, your Honour, we are looking at Huynh which commences on page 1006 of volume 5 of the joint bundle of authorities behind tab 24.

GAGELER J:   Thank you.

MR PRINCE:   This is the case that is relied upon by the Minister for the proposition that holding a Class 200 visa does not equate to being recognised as a refugee, but it is important to remember the statutory framework as existed and applied to the Huynhs.  At paragraph 6, it is noted that they travelled to Australia on a travel document issued in Kuala Lumpur on 4 August 1992.  The Act as in force at 4 August 1992, from paragraph 7, defined “visa” to mean:

‘an entry visa or a travel-only visa’ . . . a Class 200 visa was called a ‘Refugee’ visa.  However, it is clear that an applicant for a Class 200 visa did not need to establish that he or she was a refugee within the meaning of the Convention –

and it sets out the criteria.  However, what their Honours go on to say at 11 at page 1010 is that:

The Migration Amendment Act (No 2) 1992 . . . which came into operation on 30 June 1992 –

which was after my client arrived in Australia, but before the Huynhs arrived in Australia:

provided for the first time for a procedure under the Act for the determination of refugee status.  Prior to 30 June 1992 the question of whether an individual was a person to whom Australia owed protection obligations under the Refugees Convention was answered administratively.  Although the entry visa upon which the respondent first entered Australia was issued after 30 June 1992 . . . it seems unlikely that he entered Australia on the basis of a determination that his status in Australia was that of a refugee.

That is, in his case there was a mechanism under the Act of refugee status determination but there was no evidence that that had been engaged in that particular case.  Here, in our case there was not such a statutory process for refugee status determination and the matter was dealt with administratively.  In light of the terms of the CPA and the resettlement under the CPA that a person not have been found to not be a refugee and the people to whom the CPA was addressed…..or at least it is highly likely…..must have administratively accepted my client as part of its non‑statutory processes.  At paragraph 22 of the decision in Huynh at page 1014 of book 5, what their Honours say is that:

As the above discussion reveals, it does not logically follow from the fact that the respondent once held a Class 200 visa that he is a person to whom Australia owes, or once owed, protection obligations under the Refugees Convention.  The criteria specified in respect of Class 200 visas, read together with the provisions of Part 2 Division 1AA of the Act as in force in the period following 30 June 1992, make it clear that applicants for Class 200 visas were not assessed against the definition contained in Article 1A of the Refugees Convention.

That is, the introduction of an assessment process into the Act for refugee status determination meant that something different had to happen to establish that an assessment had occurred. 

That is critical to the reasoning of their Honours in Huynh and it is a feature that does not apply in the present case.  We do not say that the mere fact that he held a Class 200 visa, if that is what he in fact held, notwithstanding that it is not what any of the Minister’s notes said, if that was a visa that he held we do not say ipso facto that makes him a refugee because the title of the visa is refugee, but the circumstances of the case in terms of the timing of his arrival in the Hong Kong refugee camp from Vietnam, together with the arrival in Australia before there was a statutory process of refugee status determination, together with the circumstances in the comprehensive plan of action and, really, a commonsense approach to the mass resettlement of what were always considered to be Vietnamese refugees in Australia clearly put the Minister on notice ‑ ‑ ‑

KIEFEL CJ:   On notice that he might be a refugee.

MR PRINCE:   Yes. 

KIEFEL CJ:   Is that what it amounts to?

MR PRINCE:   Yes, that Australia might owe international protection obligations to him by reason of his status. 

KIEFEL CJ:   That would require the Minister then having – because it is a possibility and not a likely fact, it would require the Minister to undertake further investigations in order to determine whether or not non‑refoulement obligations were owed.  So there would be two steps to be undertaken.  Is that right?

MR PRINCE:   Yes.  He would have to engage with the question – intellectually engage with the question as to whether the consequence of refusing the revocation was that Australia might be in breach of its international obligations.  At the very least ‑ ‑ ‑  

KIEFEL CJ:   But it is a might, is it not?  You have to concede that it is not sufficient for the Minister to be required immediately to ask does Australia owe non-refoulement obligations, but rather is there the possibility and should I look into it further?

MR PRINCE:   Yes.  Do the facts throw up this as a real and substantial issue that needs to be addressed? 

EDELMAN J:   And the Minister would then, for those facts, go to the facts mentioned or relied upon by the applicant in submissions?

MR PRINCE:   Yes, and the facts relied upon by the Minister in response.  The debate could occur within the forum where it is meant to occur, which is the discretion under section 501CA where the Minister has ‑ ‑ ‑ 

EDELMAN J:   Will you be taking us to those facts that the applicant relied upon in submissions?

MR PRINCE:   Yes.  I will take you to some of those, your Honour, but in essence the facts are the ones that I outlined at the beginning, that is, his arrival in the refugee camp in Hong Kong from Vietnam, the CPA…..by which…..in the CPA and involved in…..this would give rise to the requirement to engage in that question by the Minister.  Can I just take your Honours to…...  There is a reference in our written submissions to the first reading speech by Senator Crowley at 248 of the…..

KIEFEL CJ:   Sorry, we just lost you there, Mr Prince.  What was the reference you were giving us?

MR PRINCE:   Page 248 of the bundle.  It is the appellant’s amended submissions.  Do your Honours have the appellant’s amended submissions?  It is page 5 of that document, starting at paragraph 26.  Before I go to that, I just draw your Honours’ attention to the passage from Justice Stone’s decision in SZEGG at paragraph 23, referring to the structure and the scheme of the comprehensive plan of action.  Her Honour said:

In those days, all Vietnamese asylum seekers were regarded en masse as prima facie refugees and offered by UNHCR for resettlement in third countries, in an arguably pragmatic exercise that ended in the late 1980s -

obviously with the introduction of the CPA. 

Under what came to be known ‑ ‑ ‑

GORDON J:   Mr Prince, there are two questions, are there not?  Do you accept, as both Justice Stone in that case and also in Huynh, that there is a distinction to be drawn between a refugee or a person being described as a refugee, and then being categorised as a refugee for the purposes of the Refugees Convention, because at the moment, as I understand your submission, you seem to have merged the two and, secondly, that in relation to the CPA, the only people excluded from it were those who had been assessed as not being covered by the Convention.  If that is right, do you accept that the people who then fell and were subject to the CPA were those who may possibly be a refugee, for the purposes of the Convention, and also those who may not be?

MR PRINCE:   It is a possibility, your Honour.  But it is a strained possibility in all of the circumstances of this case because my client fled from Vietnam, was sent away by his parents with his brother when he was eight years old, at the early stages of the exodus from Vietnam when there did not seem to be any question in the international community about the applicability of the Refugee Convention to those people.

KIEFEL CJ:   I think that might be putting words into the mouth of the international community.  They certainly think that amongst the exodus there would be a large number of persons who would qualify as refugees, but I do not think you could realistically take it further than that, could you, Mr Prince?

MR PRINCE:   Well, can I just take your Honours to the paragraph I was going to go to at paragraph 26 of our written submissions and the notes from Senator Crowley in the Senate on the first reading speech of the 1994 legislation, which introduced reference into the Act of the comprehensive plan of action.  The Senator said:

It is worth reviewing the history of this issue in the region, which provides context for the bill.  Until 1989, the international response to the problem of Indo‑Chinese asylum seekers had been a combination of temporary asylum in countries in the region, and international resettlement.  Increasingly, the reasons given by those fleeing related to poverty, rather than persecution.

That is something which is noted in the comprehensive plan of action as something that was occurring later in time.  The Senator goes on to say that:

Under the CPA, those screened in as refugees are offered third country resettlement.  Those screened out are required to return to Vietnam under arrangements monitored by the UNHCR.  The CPA also provides a framework for orderly migration from Vietnam.  A crucial part of the CPA has been the establishment of refugee status determination procedures in countries of first asylum such as Indonesia.  These processes are conducted in association with the UNHCR and according to the UN Convention definition of “refugee”. . . . The 17 Vietnamese boat people who arrived in Broome on 7 July 1994 had been assessed under these UNHCR sponsored processes in Indonesia and had been found not to be refugees.  From July 1989 to July 1994, Australia has resettled 17,600 Vietnamese and Laotian refugees under the CPA, with about 1,400 expected to arrive during 1994‑95.  Our effort has been, and continues to be exemplary”.

This is a process of resettlement of refugees and excluded from it are people who are found to not be refugees.  The overwhelming likelihood from those circumstances and the entirety of the context of the time is that it was accepted that if these children were being resettled in Australia, as they were by the Australian Government, that they were refugees.  The government acted consistently with that proposition under the CPA in relation to them, and the CPA received in 1994 some statutory recognition.

Interestingly, that statutory recognition, which is in Division AI, which is headed “Safe third countries” – and I will just get your Honours the reference to where it is in the interiors.  It is in volume 1 of Part A of the joint book of authorities.  Do your Honours have that?

KIEFEL CJ:   Sorry, where was that again, Mr Prince?

MR PRINCE:   It is page 44 of volume A of the joint book of authorities.

KIEFEL CJ:   Yes, thank you.

MR PRINCE:   Subdivision AI, “Safe third countries”, section 91A:

This subdivision is enacted because the Parliament considers that certain non‑citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa.  Any such non‑citizen who is an unlawful non‑citizen will be subject to removal under Division 8.

That references the CPA as the comprehensive plan of action approved by the International Conference on Indo‑Chinese Refugees held at Geneva, Switzerland from 13 to 14 June 1989. 

KIEFEL CJ:   When did this subdivision come into effect, Mr Prince? 

MR PRINCE:   This was introduced in 1994 I believe, your Honour.  I think the reference was in the first reading speech I referred you to, which is the - so it was the Migration Legislation Amendment Act (No 4) 1994. That was the Act to which Senator Crowley was referring in the first reading speech that I just took your Honours to.  Then, your Honours ‑ ‑ ‑

KIEFEL CJ:   Mr Prince, given that from the time of the comprehensive plan of action Australia moved to a formal process of establishing whether or not a person was a refugee under the Convention or not, at this point in time, at the point when the Minister is looking at the question of revocation, would it have been an appropriate course for the Minister to say on your case that, well there is a possibility looking at the history of the matter and what the comprehensive plan of action encompassed that this person might have been…..that under our law that there be a finding to that effect in accordance with the Convention and so I will allow the processes to take ‑ those processes to take effect in the event that there is an application made to determine that status. 

MR PRINCE:   Except what that is doing ‑ ‑ ‑ 

KIEFEL CJ:   …..appropriate…..

MR PRINCE:   No, your Honour, for this reason.  What that is doing is denying the pre‑existing status, that is to say, the investigation should be by the Minister into whether or not this man has pre-existing status recognised by Australia under the Refugee Convention.  Now, if he does…..arises….. 

KIEFEL CJ:   Could you just repeat those last few sentences? 

MR PRINCE:   I am sorry.  If he had the status of a refugee under the Refugee Convention recognised by Australia in 1992 he does not have to regain that status every time some issue arises.  He has the status.  The starting point is he has – so to then put him through a process of having to ‑ ‑ ‑ 

KIEFEL CJ:   But, Mr Prince, as I understand your argument, he has never had the status accorded a refugee under the Convention because the questions under the Convention have not been addressed.  Your argument is that he had a similar status as a refugee under the comprehensive plan of action.  Is that not your argument? 

MR PRINCE:   No, your Honour ‑ ‑ ‑ 

KIEFEL CJ:   You are saying that the comprehensive plan of action – the comprehensive plan of action assumes that people are refugees within the meaning of the Convention? 

MR PRINCE:   Yes, if they are going to participate in the resettlement for long stayers in the section that I have taken your Honours to.  There has been de facto recognition of his status as a refugee by the Australian Government when they accepted him for resettlement to this country and brought him here.  There was no statutory process for refugee status determination at the time – it was dealt with administratively.  All the actions of the Australian Government are consistent with an administrative Act accepting his status as a refugee under that Convention – and that is what we say happened.

We do not even need to get that high, so far as section 501CA is concerned.  But that is something that the Minister needed to investigate…..that is, does the man have the status of a refugee - can your Honour Justice Gageler hear me?

GAGELER J:   No.

KIEFEL CJ:   This is where I am a little confused, Mr Prince, because in paragraph 13 of your outline you say:

The Appellant is a refugee, or at least a serious question is raised as to whether he is one.

MR PRINCE:   I missed the last bit of what your Honour just said, I am so sorry.

KIEFEL CJ:   Paragraph 13 of your outline of argument that says:

The Appellant is a refugee, or at least a serious question is raised as to whether he is one.

My question is which are you contending for because frankly, from my perspective, you seem to be moving between the two?

MR PRINCE:   As I said, the serious question as to whether he is one is all that is necessary to establish a jurisdictional error in the exercise…..in this case because there is…..Australia has non‑refoulement obligations to him by reason of his status under the Convention.  We, of course, contend that he is in fact a refugee under the Refugee Convention and has been recognised as such and accorded that status by the Australian Government consistently with the comprehensive plan of action.  Did your Honour Justice Gageler hear that?

GAGELER J:   I did.  Can you hear me?

MR PRINCE:   Yes, I can.

GAGELER J:   Can I just ask this question.  If, by reason of the CPA, he was recognised as…..

MR PRINCE:   I am sorry, I cannot hear your Honour.

KIEFEL CJ:   Yes, we cannot either.  Justice Gageler, would you mind repeating that?

GAGELER J:   Yes.  If he did meet the definition of “refugee” at the time of the CPA, recognised as such, and if he has not lost refugee status by reason of Article 1C of the Convention, would he not meet the criterion for the grant of a protection visa now under section 36(2)(a) of the Act?

MR PRINCE:   Thank you, your Honour, not necessarily because the terms of section 36 of the Act are not co‑extensive with the meaning of “refugee” in the Refugee Convention.  The Act has made a decision to move away from a straight application of the criteria in the Refugee Convention and to create a codification which, with respect, does not entirely encompass the terms of the Refugee Convention.  So there is a potential gap between whether or not he has that status under the Refugee Convention as a matter of international law and whether or not he is entitled to a protection visa.  So that is the first problem.

The second problem is the factor of time because holding the status under the Refugee Convention continues unless and until Article 1C is applied and a person at any given point in time might not meet the criteria for the Refugee Convention if they were to be reassessed at a particular point in time.  But nonetheless, because of the prior recognition and status and the absence of cessation, they maintain their status and benefits under the Refugee Convention. 

That is of course because the Refugee Convention is concerned with providing durable solutions to people and providing at the end of the day refuge, that is, a place where they can rebuild their lives in safety without having to undergo reassessments at every moment to determine whether or not they would at that point in time be reassessed as being refugees within the Convention.

KIEFEL CJ:   A difficulty at the moment of course, might be whether or not the appellant could say that he feared – had genuine fear of harm.

MR PRINCE:   That might be a problem and it has not really been looked into, but Article 1C has different considerations to that.  It engages questions of whether or not there is a special issue related to his refugee status.  Now, in this case he arrived as an unaccompanied minor or with his 15‑year‑old brother at the age of eight.  His brother then immediately went off and started a family.  He was cast ashore by himself as an eight‑year‑old child, having had no education in the refugee camps in Hong Kong.  He then, as the sentencing remarks of the judge make clear, was scarred by that, as one would expect, and fell into a life of crime.  That persecution has had an effect on him which is continuing.  It has continued all his life because he has not ‑ ‑ ‑

KIEFEL CJ:   Mr Prince, I think we might be getting away from the issues that we were discussing.

MR PRINCE:   The point, your Honour, is that Article 1C(5) engages a process of looking at whether something – whether there are exceptional circumstances arising from the persecution that would make it inappropriate to cease the protection under the Convention.  Here, if one looks through that prism or that framework, one could readily appreciate that his circumstances and the prospect of him going back to Vietnam where he might end up in those terrible circumstances turning back to drugs in a country where that is a dreadful proposition, it is an ongoing effect.  So there would be meaningful things for him to say if anybody ever turned their mind to Article 1C…..and whether or not his status would be…..

KIEFEL CJ:   Anything further?  I am sorry, Justice Gordon was asking a question.

GORDON J:   Can I ask one factual question and that is what happened in December 2006 when it appears on some of the materials that he was assessed and rejected against the appropriate visa?

MR PRINCE:   Yes.  I believe that may have been engaged by an earlier criminal offence.  There was a previous criminal offence for which he was convicted and I think he was released from custody around that time.  I will get the dates, your Honour.  It seems to be around a similar time to a previous consideration as to whether to cancel his visa and in that case the decision was made not to cancel the visa.

GORDON J:   In the book of materials it says that he was assessed as not being entitled to a protection visa.  Is that right – or at least not entitled to a conclusion that he was entitled to the protection under the Convention.

MR PRINCE:   Yes.  He did not apply for a protection visa, your Honour, so there has not been a determination that he is not entitled to a protection visa within the scheme of the Act.  There has been a – if your Honours go to page 79 of the bundle of further materials ‑ ‑ ‑

KIEFEL CJ:   It was a departmental determination, was it?

MR PRINCE:   Yes, that is right.

KIEFEL CJ:   It is a departmental determination that Australia probably did not owe him protection obligations but that he was not applying for one.

MR PRINCE:   Yes, in 2006.  There was no consideration of the cessation provision in that.  In fact, one of the tick‑a‑boxes on page 81 of the bundle of further materials says:

Was the person assessed as being excluded from being owed protection obligations or as having their refugee status ceased because of another provision of the Refugees Convention or Migration Act (for example 1C ‑ ‑ ‑

and that is ticked no.  This assessment was being undertaken through the prism of a fresh assessment…..whether he would meet the criteria as at 2006.  There does not seem to be any acknowledgement in this document anywhere that he already had the status of a refugee by reason of the events in 1992 and the application of the comprehensive plan of action to him.  This really just looks like a fresh assessment as at 2006. 

Indeed, if your Honours go – there is a cross-reference in this document to a protection obligation assessment, which is a different document, which predates it.  I will just get your Honours the reference to that.  Page 35 of the supplementary bundle of further materials.  So that last document I took your Honours…..

KIEFEL CJ:   I am sorry, Mr Prince, we have lost you again.  Could you please repeat that?  What was the reference?

MR PRINCE:   The reference is page 35 of the supplementary book of further materials.  Does your Honour have that?

KIEFEL CJ:   Yes.

MR PRINCE:   Thank you.  Your Honours, this is a different document to the one I have just taken you to, which was the international obligations assessment.  The document I just took you to had been attached to a letter…..

KIEFEL CJ:   We are looking at the book of further materials at 35, which is the directions.  I do not think that is the document you are intending to take us to.

MR PRINCE:   I am sorry.  The document at 35 that I have, of the supplementary book of further materials, is headed “Protection Obligations Assessment”.

KIEFEL CJ:   I have a book of further materials.  Is there a supplementary one?

MR PRINCE:   Yes, there is.  Supplementary book of further materials.

GAGELER J:   I am afraid I do not have it.

KIEFEL CJ:   Is it called the joint book of authorities, Part E?

MR PRINCE:   I do not believe so, your Honour.

NETTLE J:   …..further materials.

KIEFEL CJ:   It is the respondent’s further materials, not the applicant’s?

GORDON J:   It is called “Respondent’s book of further materials”.

KIEFEL CJ:   It is not the appellant’s supplementary further materials; it is the respondent’s further materials.  Is that right?

MR PRINCE:   Yes, I think that is right, your Honour.  Yes.

There was an attempt to establish compelling reasons but they were connected with long connection to Australia, Australian children, Australian wife, et cetera.  So, if the question was just compelling reasons then I concede that there was scope for an argument there, but that was not the question.  It was compelling reasons arising out of previous persecution and that was absent. 

Your Honours, I have skated fairly quickly over parts of that, but unless the Court has any further questions those are our submissions.

GAGELER J:   Mr Solicitor, I just have one question.  It really goes back to this question of the need for a substantial and clearly articulated claim.  Where do you get the need for a claim?  Why should it not be that the issue substantially arises on the material before the Minister?

MR DONAGHUE:   Your Honour, can you give me a moment to just make sure I get the language of this right.  …..

KIEFEL CJ:   Mr Solicitor, I am afraid you will have to start that answer again.

MR DONAGHUE:   Sorry, your Honour.  Your Honours, I use that language because it is the language that is used in the Full Federal Court authorities.  But they do connect the claim – they refer to a claim raised by the representations made in support of revocation.  I think that I can accept that the issue is really, which as I think your Honour Justice Gageler is putting to me, that if the material before the Minister raises a substantial or clearly articulated issue or reason as to why the decision should be revoked, then that would be something that the Minister should consider.  As I say, I have not sought to challenge that line of authorities. 

I do not know if that answers your Honour’s question.  But I think, to the extent that my submissions appear to be putting weight upon the word “claim”, I do not emphasise that as a critical ingredient.  But we do say that before there is an obligation on the Minister that if not fulfilled will result in jurisdictional error, there must be at least a substantial, significant and clearly articulated issue or reason that points to the revocation of the cancellation decision.

EDELMAN J:   In other words, you accept, do you then, that (2)(b), the concern with another reason, is not in effect limited by (4)(a), which is the making of representations?  In other words, another reason does not have to be another reason that arises from the representations?

MR DONAGHUE:   No, I did not intend to accept that, your Honour.  I thought I said the reason – the substantial or significant or clearly articulated claim raised by the representations.

EDELMAN J:   I see.

MR DONAGHUE:   That is the way it has been put in the Federal Court in, for example, Omar, which your Honours have behind tab 22, which is a five‑member Bench of the Full Federal Court, and that is the way that it was articulated at paragraph 41 of that case.  So that was what I was endeavouring to concede or accept.

GAGELER J:   Why should that be so?

MR DONAGHUE:   Unless your Honours have anything further, those are my submissions.

KIEFEL CJ:   I think Justice Gageler had a question for you, Mr Solicitor.  You may not hear him.

MR DONAGHUE:   I am sorry.  I could not hear at all, I am sorry.

KIEFEL CJ:   As usual, rather quiet.

GAGELER J:   It was perhaps rhetorical, Mr Solicitor.  My question was why should that be so?  Why should the Minister in making a determination as to another reason be limited to the representations made by the person concerned?

MR DONAGHUE:   Well, your Honour, in my submission, it is not necessarily the case that the Minister is limited in the sense that not entitled to take into considerations that go wider than the issues that are raised.  My answer was rather directed towards the proposition of what must be considered, what become the mandatory considerations and that line of authority is, I think, directed to say because of the role the representations play under (4)(a) where a claim – a substantial or clearly articulated claim is made in those representations, then that is something that the Minister must engage with and if the Minister fails to do so that would be a jurisdictional error.  The Minister can go wider if he or she chooses.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  Mr Prince, do you have anything in reply?

MR PRINCE:   Yes, thank you, your Honour.  Is your Honour able to hear me?

KIEFEL CJ:   I am sorry, what did you say, Mr Prince?

MR PRINCE:   Your Honour, I cannot hear you now.  I have the headphones on, but I cannot hear sound but I expect that you might…..

KIEFEL CJ:   Can you hear me now?

MR PRINCE:   Sorry, I still cannot hear you.  Perhaps I could take out the headphones and give it a try without.  I am sorry about that.  Can your Honour hear me now?

KIEFEL CJ:   Yes, I can hear.  I think everyone else can hear you, Mr Prince.

MR PRINCE:   No, it is not working…..

KIEFEL CJ:   Can you hear us now, Mr Prince?  The Court will adjourn until we try to find another connection.

AT 3.43 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.52 PM:

KIEFEL CJ:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honours.  I apologise for that difficulty.  Can I start with this proposition?  It often gets called a deferral of consideration of non‑refoulement obligations but really it is an abdication of consideration of non‑refoulement obligations so far as section 501CA is concerned.  There is no warrant in the structure or the language of the Act for siloing considerations of refoulement only to the parts of the Act where refoulement would most naturally arise on a more…..basis, namely the process of applying for a protection visa. 

There is almost an Anthony Hordern‑type of approach being taken here to suggest that that somehow means that the non‑refoulement obligations do not really arise in relation to section 501 and, in my respectful submission, that just does not arise from the Act.  This flows through to the Ministerial Direction 65 and my client is criticised – or it is said that my client did not raise issues of refoulement or harm on return or Article 1C or the like, but of course all of those things he was told not to raise because of what appears at page 41 of the bundle of further materials at lines 38 to 50.

That is the framework that gets advice to him as to what submissions he is to make and how he is to make them and of course although Ministerial Guideline 65 is not binding on the Minister per se, it has certainly been incorporated into what the appellant has been asked to address in this process which ultimately shaped and framed the matters which were put to the Minister.

Notwithstanding that restriction and that in a sense catch‑22 that he was not meant to argue refoulement, the submissions that he did make, in my respectful submission, did clearly raise the issues about the circumstances of his departure from Vietnam, and can I just give your Honours those references. 

At page 48 of the bundle of further materials is the first and primary submission in relation to the invitation to make submissions on revocation, and from lines 20 to 30 the appellant expressly references that the sentencing judge referred to the traumatic experience of being a refugee in a Hong Kong refugee camp for a number of years.

KIEFEL CJ:   Mr Prince, surely we have been taken to all of these references?

MR PRINCE:   Those references are set out in the written outline, but I do not think I got a chance to go through them and I had told your Honour the Chief Justice that I would.  But those references are there, and I would invite your Honours to read them.  But those matters were clearly put.  The Minister seems to have the view or taken the approach implicitly that Article 33 is the only non‑refoulement issue or matter arising in the Refugees Convention.  That is to disregard the terms of Article 32. 

It is important to remember that when he loses his visa he is no longer a person lawfully in the country and he loses the blanket prohibition on expulsion from the country contained in Article 32.  True it is that perhaps if he overcomes the hurdles in Subdivision AI and later makes an application for a protection visa, and is found again to be owed non‑refoulement obligations – but, for example, he is not given a visa because of character grounds, he might then acquire or re‑acquire a right not to be refouled under Article 33 of the Convention but he will never get back, unless he gets another visa, the protections that he has in Article 32 of the Convention.

So to suggest, in my respectful submission, that these are matters that can be put out of consideration because he did not raise, or because he did not expressly claim the prospect of harm on return to Vietnam in those terms referable to Article 33, disregards other obligations in the Convention. 

The form that you were taken to at page 11 of the further supplementary appeal book…..is significant, that is, he does say that he has concerns or fears about what would happen on his return…..  That answer should be accepted at face value.  That raises the spectre – and not just the spectre, but squarely raises that he was a refugee when he arrived and that he left Vietnam as a refugee. 

In terms of the proviso in Article 1C – first of all might I say that we do not necessarily concede that the circumstances have changed within the meaning of Article 1C.  We just do not know because nobody has conducted within the Executive an Article 1C assessment ‑ ‑ 

KIEFEL CJ:   Well, you have never raised it in this case.  That is part of the reasons…..

MR PRINCE:   I am sorry, your Honour.  Can your Honours hear me? 

KIEFEL CJ:   Yes, please proceed, Mr Prince. 

MR PRINCE:   Well, as I said, there is the element of catch‑ 22 because of what he was told at page 41 of the bundle which is you should address each paragraph in Part C of the direction that is relevant to your circumstances and that direction included a provision that non‑refoulement would not be considered if there was the ability to make an application for a protection visa.  So that disengagement at the outset of the process because of that siloing of the statutory functions has miscarried the administrative process in which he was engaged and that is the difficulty and that is part of the reason why there is that difficulty with Article 1C. 

Can I just briefly talk about QAAH?  That case can be distinguished because the nature of the extent of Australia’s recognition of the refugees was conditioned by the statutory scheme under which they were first recognised, that is, they were recognised under a scheme which provided for temporary protection in a statutory framework.  On my client’s case his recognition by Australia to be a refugee within the Convention was never so confined. 

In relation to Le, my learned friend noted some of the distinguishing features in Le and, in my respectful submission – first of all, there was actually a decision in that case or reasons given that no claim had been made.  That does not feature in the reasons for decision here.  The issue has just been ignored.  That was at paragraph 9 on page 989 of the bundle.  Also that was a situation where there was not the same mandatory cancellation considerations or mechanisms as occurred here and Article 1C had been applied.

My learned friend formulated a possible decision that could have been made by the Minister to the effect that if a protection visa regime is not applicable then he could choose to disregard any unincorporated obligations.  Our point is that that just has not happened here.  There just has not been that engagement with this issue that arises whereby a reason or an explanation has been given by the Minister as to why the status or the significant potential of that status under the Refugee Convention can be put to one side or overcome by other matters, and that is the problem in the case.  Can I give your Honours a reference to page 716 of the joint book of authorities from the beginning of the page, but particularly about point 3.

KIEFEL CJ:   Which volume is this, Mr Prince?

MR PRINCE:   It is volume 4, your Honour.

KIEFEL CJ:   Tab?

MR PRINCE:   Tab 17, page 716.  The words starting:

Second, as we have noted above, the role of the consideration of whether serious or significant harm might befall the appellant in Lebanon (for Convention or non-Convention-related reasons) has a quite different place in the discretionary decision about revocation, to the place it may have, if reached, in a protection visa assessment. 

What the court is doing there is pointing out a very important and obvious fact - that these are different, separate, statutory powers and functions contained in the Migration Act and they are different in their nature.  The way in which matters factor into one is very different to the other.

Section 501AC is a discretion at large, 65 is an algorithmic formula which should produce a binary result of either to give the visa or to not give the visa.  It is inevitable that when these issues are placed into those two different statutory frameworks they would end up being treated differently. 

So that if there is, as my learned friend concedes - it is permissible to have regard to non-refoulement obligations in relation to section 501, to refuse to have regard to those matters, if they arise substantially on the materials, is to prevent my client from ever having the benefit of the consideration of those matters within that peculiar and particular statutory framework in the Act, namely section 501AC.  That does not – that is not overcome by the possibility that there might be some different statutory function or power where those integers may be applied to a different formula. 

In relation to the exchange between my learned friend and his Honour Justice Edelman, your Honour Justice Edelman put the case correctly from our perspective, so far as we are concerned.  This is not a case where we are simply saying there is a duty to inquire and a failure to engage in a prospective duty to inquire that might yield some results.

This is a case where the important material facts were known to the Minister and were known to him in this statutory process in which he was engaged, either because he had been told by the appellant or from the file, and indeed he had constructive knowledge of the CPA and its history and circumstances.

All of that material was on the pitch.  What was missing was the intellectual engagement with how those facts affected or would impact on his discretionary decision‑making process under section 501CA, including matters like the status and importance of the CPA…..in addition to…..  So all of the matters were known to the Minister…..of which he was aware.  Subject to anything further, if your Honours require my assistance, those are my submissions in reply.

KIEFEL CJ:   Yes, thank you.

MR DONAGHUE:   Your Honour, might I raise one matter before the Court adjourns, very briefly.

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Our friend’s reply just then referred on a number of occasions to what he called the catch‑22 position of not having made submissions because the direction told him not to do so.  We objected to that claim in our written submissions in paragraph 5(c) and paragraph 10 on the basis that, amongst other things, it was a factual claim about what the appellant would or would not have done that we would have tested by cross‑examination, had it been made at some prior point and we made some other submissions about it.

We had understood our friends not to have pressed that because in paragraph 13 of their reply they appear to back away from a claim that came up again for the first time in reply.  So I just…..in the same way that this is a point that we ask your Honour to take that objection into account in evaluating those submissions.

KIEFEL CJ:   Mr Solicitor, I think you can take it that the Court was aware of the concession made in reply.  Do you have anything to say to that, Mr Prince?  You were not interrupted but that is the case, is it not?

MR PRINCE:   We said in paragraph 13, your Honour, that it is not necessary to the success of our argument but ‑ ‑ ‑

KIEFEL CJ:   Well, that is as close to a concession as you could make, Mr Prince.  Are you going to take this any further?

MR PRINCE:   No, your Honour.

KIEFEL CJ:   Yes, thank you.

MR PRINCE:   I am sorry, your Honour.  I would say that it does go to the structure of the shape of the administrative process that is being undertaken.

KIEFEL CJ:   Is that your submission in relation to what Mr Solicitor has put about what you have said in paragraph 13 of your reply?  I want you to think about this before you answer.  Did you concede the point or did you not in your reply?  You said it was no longer relevant, you were not pressing it.  Is that not the effect of what you said?

MR PRINCE:   We said that it was not necessary to the argument, but ‑ ‑ ‑

KIEFEL CJ:   Well, that is one way of telling the other side that they need not deal with it, is it not, and it tells the Court that we need not bother with it either.

MR PRINCE:   I understand what you are saying, your Honour, and I accept that.  The point of distinction between the submissions I was making and what occurred here is there was a positive submission that the appellant in fact refrained from referring to his alleged non‑refoulement, because of the terms of Direction 65.  My proposition was that the catch‑22 is that Direction 65 frames the response to occur, but that does not extend to a submission that subjectively he - that he subjectively refrained from making submissions.  It just…..that it frames the discourse that is occurring in the process.  So, I hope that clarifies things, your Honour.

KIEFEL CJ:   Have you completed your submissions?

MR PRINCE:   Yes, your Honour.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 4.12 PM THE MATTER WAS ADJOURNED