CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2020] FCA 1855

FEDERAL COURT OF AUSTRALIA
CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855

File number: NSD 860 of 2020

Judgment of: GRIFFITHS J

Date of judgment: 23 December 2020

Catchwords:
MIGRATION – judicial review of a decision by the Acting Minister under s 501A(2) of the Migration Act 1958 (Cth) (Act) to set aside a decision of the Administrative Appeals Tribunal and refuse the applicant’s application for a Safe Haven Enterprise (Class XE) visa – acceptance by the Acting Minister that refusal of the visa meant that the applicant would be removed to his country of origin in breach of Australia’s international non-refoulement obligations and at risk of being killed – significance of the structure of s 501A(2) of the Act – significance of separate pre-conditions to the exercise of the power, including a separate pre-condition concerning the Acting Minister’s satisfaction that refusal of a visa is in the “national interest” – whether the Acting Minister erred in the particular circumstances of the case by failing to consider the implications of Australia acting in breach of its international non-refoulement obligations in his assessment of the “national interest” under s 501A(2)(e) of the Act – Acting Minister fell into jurisdictional error by assessing the question of “national interest” on an erroneously narrow basis, which reflects unreasonableness and/or an incorrect understanding of the law – Acting Minister distorted his decision-making process by deferring his consideration of the implications of Australia breaching its international non-refoulement obligations to a later stage of the decision- making process relating to his residual discretion – Acting Minister’s decision set aside

ADMINISTRATIVE LAW – consideration of the nature and scope of judicial review of subjective jurisdictional facts with respect to illogical, irrational or unreasonable reasoning and the need to have a correct understanding of the law

Legislation:
Migration Act 1958 (Cth), ss 5H, 5J, 35A, 36, 37A, 91A-91X, 195A, 197C, 198, 501, 501A, 501BA, 501C, 501CA

Immigration and Refugee Protection Act (S.C. 2001, c. 27) (Canada), s 34

Cases cited:
Agraira v Canada (Public Safety and Emergency Preparedness) [2013] SCC 36; 2 S.C.R. 559

Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 109; 380 ALR 393

Applicant M 117 of 2007v Minister for Immigration and Citizenship [2008] FCA 1838

Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897

AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; 162 ALD 449

AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; 268 FCR 424

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353

BAL19 v Minister for Home Affairs [2019] FCA 2189

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94

Buck v Bavone [1976] HCA 24; 135 CLR 110

CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 980

FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112

FRH18 v Minister for Home Affairs [2018] FCA 1769

Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR 120

Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1

Jione v Minister for Immigration and Border Protection [2015] FCA 144; 232 FCR 120

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12

Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218; 256 FCR 50

Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611

Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400

Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992

Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273

Onus v Minister for the Environment [2020] FCA 1807

Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) [2010] HCA 41; 243 CLR 319

R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1

Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391

Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 141

Date of last submission: 18 December 2020

Date of hearing: 28 September and 10 December 2020

Counsel for the Applicant: Mr N M Wood with Mr D J McDonald-Norman

Solicitor for the Applicant: Human Rights for All

Counsel for the Respondents: Ms R Francois with Ms K Morris

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

NSD 860 of 2020

BETWEEN:
CWY20

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

MINISTER FOR HOME AFFAIRS

Second Respondent

ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVIES AND MULTICULTURAL AFFAIRS

Third Respondent

ORDER MADE BY:

GRIFFITHS J

DATE OF ORDER:

23 DECEMBER 2020

THE COURT ORDERS THAT:
1.The third respondent’s decision dated 16 July 2020 be set aside.
2.The applicant pay the third respondent’s costs in respect of and incidental to the hearing on 28 September 2020, as agreed or taxed.
3.The third respondent pay the applicant’s costs of and incidental to the amended originating application, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

[1]

Summary of background matters

[10]

Relevant extracts from the Acting Minister’s statement of reasons

[28]

The Department’s brief to the Acting Minister

[36]

The applicant’s submissions summarised

[39]

The Acting Minister’s submissions summarised

[54]

The applicant’s submissions in reply summarised

[65]

Consideration and determination

[70]

(a) Relevant legislative provisions and case law

[70]

(i) General

[70]

(ii) The national interest

[73]

(iii) Non-refoulement obligations

[82]

(iv) The Full Court’s decision in AQM18

[85]

(b) Judicial review of subjective jurisdictional facts

[96]

(i) Illogical, irrational or unreasonable reasoning

[96]

(ii) The need to have a correct understanding of the law

[114]

(c) The Acting Minister’s jurisdictional error

[116]

Conclusion

[141]

GRIFFITHS J:
Introduction

The applicant’s case has a long and unfortunate history, not the least being that he has been held in immigration detention for more than five years, during which period he has been involved in multiple proceedings in this Court and in the Administrative Appeals Tribunal (AAT), many of which were determined in his favour.
The applicant now challenges by way of judicial review a decision dated 16 July 2020 by the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Acting Minister). The decision, which was made under s 501A(2) of the Migration Act 1958 (Cth) ((the Act), involved a refusal of the applicant’s application for a Safe Haven Enterprise (Class XE) visa (the visa). The basis for the impugned decision was that the Acting Minister reasonably suspected that the applicant did not pass the character test, he was satisfied that it was in the national interest to refuse the visa, and he viewed his assessment of the national interest as outweighing considerations which were favourable to the applicant in determining whether or not he should exercise the power under s 501A(2). In making that decision, the Acting Minister set aside a decision of the AAT in the applicant’s favour dated 25 October 2017.
The applicant was granted leave to rely upon an amended originating application which was attached to his supplementary submissions filed on 19 October 2020. The single ground of judicial review is that the Acting Minister fell into error in failing to consider Australia’s international non-refoulement obligations to other countries, in relation to the applicant, in assessing whether it was in the “national interest” to refuse to grant a protection visa to the applicant. The claimed error is particularised by reference to the following two matters:
(a)the Acting Minister failed to have regard to a relevant consideration in his determination of “the national interest”; or
(b)he reasoned in a manner which was unreasonable, illogical or irrational.
The applicant abandoned two grounds of judicial review previously relied upon by him and which were the subject of the hearing on 28 September 2020 of his then originating application. The matter was then adjourned to provide the applicant with an opportunity to give consideration to whether he wished to raise the ground of judicial review which is the subject of these reasons for judgment.
When the matter resumed for hearing on 10 December 2020, at the completion of the applicant’s oral address, counsel for the Acting Minister said that she was caught by surprise because of how the applicant presented his case. She asked for leave to provide further supplementary submissions on an issue which, she submitted, did not arise on the amended originating application nor from any other source. The Court drew counsel’s attention to page 7 of the transcript of the hearing on 28 September 2020, where the matter about which counsel complains was squarely raised by the Court.
To avoid any prejudice to the Minister, orders were made for the parties to file post hearing supplementary submissions, limited to the following issue:
[W]hether the Acting Minister erred in his understanding of the ‘national interest’ in s 501A(2) of the Migration Act 1958 (Cth) by deferring consideration of non-refoulement obligations to the exercise of his discretion and thereby distorted his decision-making process.
The parties availed themselves of that opportunity.
For completeness, the Acting Minister’s counsel made oral submissions on 10 December 2020 in respect of the balance of the applicant’s case.
For the reasons that follow, the amended originating application will be upheld and the Acting Minister’s decision set aside.
Summary of background matters
On 3 March 2014, the applicant was convicted in the Local Court of New South Wales of two counts of assault with act of indecency. He was sentenced to a total term of imprisonment of 15 months. He was also convicted of five counts of indecent assault of a person under 16 years of age, to which he was sentenced to a total term of imprisonment of 41 months. Accordingly, the applicant was sentenced to a total term of imprisonment of 56 months, with a fixed term of 14 months imprisonment. All these matters involved criminal conduct of a sexual nature involving young females, five of whom were under the age of 16. This meant that he had a substantial criminal record and did not pass the character test under s 501(6)(a) of the Act with reference to s 501(7)(d).
On 16 December 2015, while the applicant was in immigration detention, he applied for the visa. It was refused by a delegate on 20 July 2017. The applicant appealed to the AAT, who set aside the delegate’s decision on 25 October 2017. On 16 April 2018, the then Minister for Home Affairs asked his Department to prepare a submission on whether the AAT’s decision should be set aside under s 501A(2). There was then a delay of 17 months until, on 27 September 2019, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs set aside the AAT’s decision and refused to grant the visa. The applicant’s solicitor deposed that she did not receive the 27 September 2019 decision until 15 October 2019. On 3 October 2019, having apparently not yet received the 27 September 2019 decision, the applicant then brought proceedings in this Court complaining of unreasonable delay in finalising his application (NSD1608/2019). Ultimately, on 21 February 2020, the decision of 27 September 2019 was set aside by consent, after the Minister conceded that decision was “affected by error because the first respondent failed to consider the immediate legal consequence of the decision, being that the applicant would be removed from Australia as soon as reasonably practicable.”
On 17 June 2020, the applicant brought further proceedings in this Court complaining of unreasonable delay in finalising his application (NSD674/2020). Apparently, part of the delay was caused by a challenge to the correctness of the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189. On 23 and 24 June 2020, the Full Court found in two separate appeals (KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121), that part of BAL19 was wrongly decided, with the consequence that the character provisions of the Act continue to be available with respect to the refusal of a protection visa. On 21 July 2020, the application in NSD674/2020 was dismissed by consent (with the Minister agreeing to pay the applicant’s costs), which was shortly after the Minister made the 16 July 2020 decision under challenge in this proceeding.
It is desirable to provide a brief outline of some of the procedural history leading up to the making of the Acting Minister’s decision dated 16 July 2020. This outline is far from exhaustive.
By a notice dated 18 July 2018, the applicant was notified by the Department of the intention to consider refusing his application for a visa under s 501A(2) of the Act (First Notice of Intention). He was provided with a copy of Direction 65 for the purpose of guiding any response which he wished to make. Direction 65 was at that time the Direction from the Minister under s 499 guiding decision-makers in exercising their powers to refuse or cancel a visa under s 501 or to revoke the mandatory cancellation of a visa under s 501CA.
Direction 65 was revoked on 28 February 2019 and replaced by Direction 79. The Department wrote to the applicant on 8 April 2019, enclosing a copy of Direction 79, and telling him that he “should now use Direction 79 in place of Direction 65”. The Department told him that if the Minister made the decision personally he or she was not bound by Direction 79, however, Direction 79 “provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether to revoke the original decision to cancel your visa”. Presumably the letter dated 8 April 2019 is a pro forma letter. It contains instructions which have no relevance at all to the applicant. No question of revocation arose in circumstances where the applicant was applying for a visa to be granted to him. But he was told in the 8 April 2019 letter that it was important that he read Direction 79 carefully “as it may be relevant to any response you provide”.
The preamble to Direction 79 states that the document provides “a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA”. On page 2 of the Direction, it is stated that Part B of the document identifies considerations which are relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application. On page 4, the document specifies that a decision-maker “must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa”. Part B identifies three primary considerations which must be taken into account in deciding whether to refuse a non-citizen a visa. Section 12 of the document identifies “other considerations” which must be taken into account where relevant. They include (without limitation) “International non-refoulement obligations”. Section 12.1(2) provides (emphasis added):
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizens’ visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
This statement echoes the assurance given by the then Minister in his second reading speech to the 2004 Bill (see at [49] below).
On or about 23 August 2018, the applicant provided a statutory declaration in response to the First Notice of Intention. He drew attention to the fact that the Department had determined that Australia owed non-refoulement obligations in respect of him and that Australia would be in breach of those international obligations if he were returned to his country of origin.
The applicant provided a further detailed written submission dated 23 April 2019 in response to the Department’s invitation in the letter dated 8 April 2019 (see [15] above). It was made plain that he continued to rely upon his earlier submissions dated 23 August 2018. His second set of submissions broadly followed the structure of Direction 79. Notably, however, he also provided representations on the topic of the “national interest”.
The applicant’s second set of written submissions contained detailed representations on international non-refoulement obligations. Those representations were made not under the heading of “national interest”, but consistently with the structure of Direction 79 and the Department’s encouragement to the applicant to follow that structure, his representations on that topic were directed to the question of the residual discretion (i.e. s 12.1(2) of Direction 79) (see [16] above).
By a letter dated 25 June 2020, the Department issued another notice of intention to consider setting aside the AAT’s decision and refusing to grant the applicant a visa under s 501A(2) (Second Notice of Intention). He was told that a purpose of the notice was to inform him that the Minister would personally consider whether to set aside the AAT’s decision dated 25 October 2017 and refuse him a visa. Although the notice contained some information regarding the concept of the “national interest”, no explicit invitation was extended to the applicant to make representations on that particular subject. He was, however, invited to comment on information which indicated that he may not pass the character test. It was also stated that he may want to provide reasons why his application should not be refused even if he did not pass the character test. Nothing in the 25 June 2020 letter precluded the applicant from making submissions to the Acting Minister on the subject of the national interest.

In the section of the letter under the hearing “How and when to respond to this notice”, the applicant was advised as to how he should respond on the subject of the character test and any reasons why his application should not be refused even if he did not pass the character test. He was given no explicit advice on how he should respond to national interest considerations. He was, however, provided with another copy of Direction 79.
By a letter dated 29 June 2020, the applicant’s representative responded to the Second Notice of Intention. The continuing reliance on his earlier submissions was confirmed, including, but not limited to, the submissions dated 23 April 2019. The applicant’s representative submitted that it was not open to the Minister to use his power under s 501A(2) because it had been used previously on 27 September 2019 and that decision had been set aside. The representative’s submission dated 29 June 2020 did not contain any additional submissions on the concept of the national interest.
As noted above, on 16 July 2020, the Acting Minister decided to exercise his power under s 501A(2) to refuse the visa. This is the decision which is challenged in the present proceeding.
The Acting Minister was provided with a lengthy submission and recommendations by his Department. The Department summarised the applicant’s written submissions and attached copies of them in its brief to the Acting Minister.
The Acting Minister provided a detailed statement of reasons in support of his decision. The structure of the statement of reasons leaves no room to doubt that the Acting Minister proceeded on the basis that Australia’s non-refoulement obligations were only relevant to the question whether he should exercise his residual discretion to refuse to grant the visa. The statement of reasons indicates that the Acting Minister (correctly) viewed his decision-making task under s 501A(2) as involving several separate and distinct stages, including separate stages relating to good character, national interest and his residual discretion.
It is evident from that part of the Acting Minister’s reasons relating to his assessment of the national interest that he gave no consideration in that assessment to the fact that he accepted that, in the applicant’s circumstances:
(a)Australia owed international non-refoulement obligations;
(b)refusal of the visa meant that the applicant would be removed to his country of origin in breach of those obligations; and
(c)there was a risk that the applicant would be killed if he returned to his country of origin.
It is desirable to highlight the primary relevant parts of the Acting Minister’s statement of reasons.
Relevant extracts from the Acting Minister’s statement of reasons
The Acting Minister acknowledged in [14] of his statement of reasons that the question whether refusal of the applicant’s visa application was in the national interest “is separate and distinct from the question whether or not [CWY20] passes the character test”.
The Acting Minister correctly noted at [15] that “national interest” is not defined for the purposes of s 501A and that, generally, courts had been reluctant to attempt to define it in statutory contexts. The Acting Minister then at [16] to [18] referred to Madafferi v Minister for Immigration &Multicultural Affairs [2002] FCAFC 220, Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 and Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391. Significantly, after referring to Madafferi, the Acting Minister acknowledged (correctly) at [16] that “the question of what is or is not in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably” (emphasis added). This is relevant to a central issue in the proceeding, being the ambit of judicial review of the Acting Minister’s satisfaction concerning s 501A(2)(e) of the Act.
At [19] to [22], the Acting Minister summarised the applicant’s representations dated 23 April 2019 on the topic of “national interest”, with particular reference to his submission that he did not have a significant criminal history and had not reoffended since his convictions in 2014. At [21], the Acting Minister noted the applicant’s submission that it could not reasonably be said that refusing him a visa “would be in the national interest and taking into account the interests of Australia as a whole, and stated that this is a particular case given that without clear definition, it is impossible to properly address any concerns the Minister has relating to the public interest”.
The Acting Minister concluded the section of his statement of reasons on national interest with the following findings at [23]:
Having regard to the above, I consider that matters of national interest include, amongst 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 it. I also find that matters of national interest can include a consideration of the risk of a person reoffending and the harm which could flow if such a risk eventuated.
It is worth reiterating that nowhere in the statement of reasons concerning the national interest did the Acting Minister turn his mind to the possible relevance to that topic of Australia’s non-refoulement obligations and their implications in the applicant’s case.
The following paragraphs of the Acting Minister’s statement of reasons are directed to his consideration of Australia’s non-refoulement obligations, noting that they all appear in that part of the statement relating to the Acting Minister’s residual discretion (emphasis added):
…
108.I accept that my Department has found that [CWY20] is a person in respect of whom Australia has non-refoulement obligations.
109.I am mindful that the AAT was not comforted by the Department’s reassurance that [CWY20] would not be sent back in breach of international obligations, after taking into account the effect of ss197C and 198. Whilst the AAT viewed [CWY20’s] offending very seriously, it found that the correct or preferable decision in this case was to grant [CWY20] a visa.
110.I understand that if I decide to set aside the original decision and refuse to grant [CWY20’s] Safe Haven Enterprise (Class XE) visa, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa. I further understand that, according to the relevant provisions of the Regulations, [CWY20] could only apply for a Bridging R (Class WR) visa in response to an invitation, and that in respect of a Protection visa, he will be prevented by s48A of the Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s48B that s48A does not apply to him).
111.I am aware that the statutory consequence of a decision to refuse to grant [CWY20’s] Safe Haven Enterprise (Class XE) visa is that, as an unlawful non-citizen, [CWY20] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
112.I am mindful that even if I refuse to grant [CWY20’s] Safe Haven Enterprise (Class XE) visa, I have a personal non-compellable power in s195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [CWY20’s] favour, he will be liable for removal as soon as reasonably practicable in accordance with s198 of the Act, including to Afghanistan, having regard to s197C. In this regard, I find that if [CWY20] is removed to Afghanistan, there is a risk that he would suffer the type of harm described in his protection claims, including death at the hands of the Taliban and other extremists groups. I gave considerable weight to this risk.
113.I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [CWY20] criminal offending in the making of my decision whether to set aside the original decision and refuse to grant [CWY20’s] Safe Haven Enterprise (Class XE) visa.
The Acting Minister summarised his conclusions at [126] to [133] of his statement of reasons. He reiterated that he was satisfied that the refusal of the applicant’s visa was in the national interest (at [127]). He referred at [131] to “countervailing considerations” in CWY20’s case, including non-refoulement obligations. He summarised his reasons regarding the seriousness of the applicant’s offending and the risk to the Australian community were he to reoffend (matters which the Acting Minister elaborated upon earlier in his statement of reasons at [88] to [93]). He then concluded at [133] (emphasis added):
I find that the above considerations favouring not setting aside the original decision and refusing to grant [CWY20’s] visa are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to refuse to grant [CWY20’s] application for [the visa] under s 501A(2) of the Act.
There can be no doubt that the Acting Minister’s assessment of national interest considerations was critical to his ultimate conclusion that such considerations outweighed other considerations in favour of not setting aside the AAT’s decision to grant the visa. This part of the reasoning highlights the importance of the Acting Minister having a correct understanding in law of the concept of “the national interest”.
The Department’s brief to the Acting Minister
The following extracts from the body of the Department’s submission to the Acting Minister are also relevant (emphasis added):
14.[CWY20] is a person in respect of whom Australia has been found to owe protection obligations. This means to remove him to his country of nationality would be in breach of Australia’s international non-refoulement obligations. If you decide to refuse to grant [CWY20’s] Safe Haven Enterprise (Class XE) visa, he will be an unlawful non-citizen who must be detained under s189 of the Act and kept in immigration detention until, relevantly, he is removed from Australia under s189 or is granted a visa.
15.I draw to your attention that if you decide to refuse to grant this visa, there is presently no known prospect of removal of him to another country other than his country of origin. Refusal of his visa will mean that as soon as reasonably practicable and if the other conditions in an applicable subsection of s198 are satisfied, he must be removed to Afghanistan even though doing so would be in breach of Australia’s international non-refoulement obligations. This consequence follows from s197C (1) of the Act, which provides that “[f]or the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.
16.However, if you refuse to grant [CWY20’s] visa, it is open to you to consider alternative management options. In this case, it would be open to you to consider making a residence determination under s197AB to enable [CWY20] to reside in the community, noting that a person covered by a s197AB determination would still be considered ‘detained’ under the Act.
17.As a further alternative, it is open to you to consider intervening under s195A of the Act to grant another visa. If you decided to consider whether to intervene under s195A the consequence will be that [CWY20] is detained until you make a decision in this regard. If you decide not to intervene under s195A, then, again, [CWY20] must be removed to Afghanistan unless some other country is an available destination at that time. That removal must occur as soon as reasonably practicable if the other conditions in an applicable subsection of s198 are satisfied.
18.If you indicate that you wish to consider alternative management options, a further submission will be referred for your consideration.
…
86.You may wish to note, that the Department has found that [CWY20] is a person in respect of whom Australia has protection obligations, with the country of reference being Afghanistan. This means that to remove [CWY20] to Afghanistan would be in breach of Australia’s international non-refoulement obligations. [CWY20] could be removed to a country other than Afghanistan but there is currently no known prospect of removal to such a country.
87.If you decide to refuse to grant [CWY20’s] Safe Haven Enterprise (Class XE) visa, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations). According to the relevant provisions of the Migration Regulations, [CWY20] could only apply for a Bridging R (Class WR) visa in response to an invitation. Also, regarding a Protection visa, [CWY20] will be prevented by s48A of the Act from making a further application for a Protection visa while he is in the migration zone (unless the Minister determines under s48B that s48A does not apply to him).
88.You should also be aware that if you decide to refuse to grant [CWY20’s] Safe Haven Enterprise (Class XE) visa, he will, as an unlawful non-citizen, be subject to continued immigration detention under s189 of the Act and removal from Australia under s198 of the Act “as soon as reasonably practicable”. In this respect, you should note that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. In relation to the operation of ss189, 196, 197C and 198 of the Act in the context of [CWY20’s] case should you refuse to grant his Safe Haven Enterprise (Class XE) visa, I refer back to paragraphs 14 to 18 above.
89.You have been asked to indicate whether or not you would like to consider alternative management options in [CWY20’s] case (which encompass the possibility of granting a visa under s195A) should you decide to refuse to grant his Safe Haven Enterprise (Class XE) visa.
90.It is open to you to give considerable weight to the assessment that [CWY20] 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 his Safe Haven Enterprise (Class XE) visa.
91.While the AAT viewed the offending very seriously, it did not accept that the primary considerations including the Protection of the Australia Community consideration, outweighed Australia’s non-refoulement obligations owed to him Attachment F.
There is nothing in the Department’s brief to suggest that Australia’s non-refoulement obligations might form part of the Acting Minister’s assessment of the national interest.
With reference to [18] and [89] of the Department’s brief, the Acting Minister indicated that he did not require the Department to provide him with a further submission regarding “alternative management options”. In other words, the Acting Minister accepted that the applicant would be refouled and put at risk of being killed.
The applicant’s submissions summarised
In summary, the applicant contended that it was unreasonable for the Acting Minister to:
(a)recognise that refusing a protection visa to the applicant 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 not to exercise another power that would avoid the applicant being removed from Australia to his country of origin; and
(c)not consider Australia’s international non-refoulement obligations in assessing whether or not it was in the national interest to refuse to grant the visa.
The applicant emphasised that there was no discussion of Australia’s non-refoulement obligations in that part of the Acting Minister’s statement of reasons relating to the national interest (i.e. [14] to [93]). That issue was only addressed by the Acting Minister in that part of his statement of reasons concerning the exercise of his residual discretion (i.e. at [101] to [117]).
The applicant also relied upon the Department’s advice to the Acting Minister to the effect that, unless the applicant was granted a visa under s 195A, the applicant must be removed to his country of origin even though this would be in breach of Australia’s international non-refoulement obligations (referring to the Department’s submission at [15], as extracted at [36] above). The applicant contended that the Acting Minister clearly understood that refusing to grant the applicant a protection visa or to embark upon a consideration of whether the non-compellable power under s 195A should be exercised, meant that the applicant must be removed to his country of origin notwithstanding that this would place Australia in breach of its international obligations.
The applicant relied upon two recent cases in support of his judicial review challenge. The first is CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 980. The other case is FRH18 v Minister for Home Affairs [2018] FCA 1769. Justice Rares decided both those cases. In CPJ16 at [52], Rares J held that the Minister fell into jurisdictional error when, in making a decision under s 501A(2) and having found that non-refoulement obligations were owed in relation to the applicant, in determining the national interest the Minister had failed to consider:
(a)the circumstances and consequences for the applicant of her refoulement; and
(b)the consequences for the national interest in refouling a person in breach of Australia’s international non-refoulement obligations.
Earlier, in FRH18, which involved a decision cancelling a protection visa under s 501A(2), Rares J said at [49]:
In the applicant’s case, the Minister’s reasons revealed what he understood that he was deciding and why he had decided to delay considering how Australia’s non-refoulement obligations could be addressed. However wide the scope of the Minister’s discretion to consider what is in the national interest, the question whether to make a decision that would have the prima facie effect of putting Australia in breach of its non-refoulement obligations owed in public law to other nations party to treaties with Australia whence those obligations derive, suggests that this factor must be considered (and not put to one side) by the Minister in exercising the power under s 501A(2) (cf: Graham 347 ALR at 363-364 [57], [59]).
The passage in Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] which was referred to by Rares J is as follows (footnotes omitted, emphasis added):
The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister’s satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”.

The applicant pointed to [59] of FRH18, where Rares J said that because a decision to cancel a visa under s 501A(2) may cause Australia to be in breach of its international non-refoulement obligations, this was a relevant consideration in determining what is or is not in the national interest. The applicant contended that the present proceeding was even stronger than in FRH18 because the Acting Minister explicitly stated here that he did not wish to consider “alternative management options” in relation to the applicant, whereas Rares J made a finding in FRH18 that there was no likelihood in that case that the Minister would use “alternative management options”.
The applicant also emphasised that the Acting Minister did not appeal either of these two cases. He added that neither was plainly wrong so they should be followed as a matter of comity.
The applicant then made submissions as to why the two cases are plainly right, not only for the reasons given by Rares J but for the following additional reasons. First, although the concept of “the national interest” is a broad one, the Acting Minister’s assessment of the relevant state of satisfaction must be formed reasonably (Re Patterson at [167] per Gummow and Hayne JJ). The applicant said that it was unnecessary for the Court to conclude whether non-refoulement obligations are a mandatory consideration in every case involving an exercise of s 501A. Rather, the issue was whether the Acting Minister, acting reasonably, could give no consideration to the fact of Australia breaching its international obligations in assessing whether he was satisfied that refusal of a protection visa was or was not in Australia’s “national interest” in the particular circumstances appertaining to the applicant.
The applicant cited several cases in support of his contention that damage to Australia’s international reputation fell within the ordinary concept of national interest (for example, Applicant M 117 of 2007v 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] ff per Tamberlin J and Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 109; 380 ALR 393 at [91]).
The applicant contended that the unreasonableness of the Acting Minister’s failure to consider breach of Australia’s international obligations in assessing the national interest was accentuated by two contextual matters, namely the purpose of the protection visa regime and the public assurances given by the Government that discretionary powers under the Act would be exercised as necessary to ensure adherence to Australia’s obligations. In particular, reliance was placed upon the following assurances given by the then Minister for Immigration and Border Protection (the Hon Scott Morrison MP) in his second reading speech to the Migration and Maritime Powers of Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth). With reference to Sch 5 of the Bill, which the then Minister said made clear that the “the removal power is available independent of assessments of Australia’s non-refoulement obligations”, he stated (emphasis added):
Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant’s protection claims has been concluded.
While the applicant accepted that it may have been open to the Acting Minister to conclude that he would not consider the exercise of his non-compellable powers as a course consistent with Australia’s “national interest” if he had formed that view after considering Australia’s non-refoulement obligations, this did not occur here. Rather, the applicant complained that the Acting Minister failed to address the breach of Australia’s non-refoulement obligations in considering the question of “national interest”.
In his oral submissions, the applicant emphasised that no reliance was placed on the concept of mandatory relevant considerations. He confirmed that his claim of unreasonableness arose in the particular circumstances of this case, referring to Buchanan J’s statement in Jione v Minister for Immigration and Border Protection [2015] FCA 144; 232 FCR 120 at [17] that “the national interest is a broad and often indeterminate test, until the circumstances of a particular case come into focus”. The applicant emphasised the following relevant particular circumstances of his case:
(a)it was a species of protection visa which the Acting Minister refused to grant him;
(b)the Acting Minister made clear that he would not consider alternative management processes, such as the exercise of his power under s 195A of the Act;
(c)the Acting Minister plainly understood that a consequence of his decision was that the applicant would be returned to his country of origin; and
(d)the Acting Minister accepted that there was a threat that the applicant would be killed if this occurred.
While indicating that unreasonableness was the primary ground relied upon, the applicant also confirmed that the Acting Minister’s error could be characterised as relating to his incorrect understanding of the relevant law, with particular reference to the breadth of the concept of the “national interest”.
With reference to the Acting Minister’s reliance upon Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897 at [35], the applicant rhetorically asked why the Minister now accepted that he must consider non-refoulement in respect of his residual discretion where an applicant raises non-refoulement obligations, yet took a different view with respect to the Minister’s consideration of the national interest.
The Acting Minister’s submissions summarised
The Acting Minister sought his costs in respect of the hearing held on 28 September 2020 and the costs of him responding to the originating application, which was belatedly replaced by the latest amended application.
The Acting Minister did not dispute that he must consider the question of Australia’s non-refoulement obligations, where the issue has been raised by the applicant, when considering whether or not to exercise the power to refuse a protection visa on character grounds (citing Applicant S270/2019 at [35]). He added that he had given that matter consideration in this case.
The Acting Minister described the sole ground of review now relied upon by the applicant as involving a “novel proposition” which is based upon “a particular reading” of Rares J’s reasons for judgment in CPJ16.
The Acting Minister added that:
(a)Rares J’s statement in CPJ16 at [52] was not pleaded nor raised by the applicant there; and
(b)possibly as a consequence, Rares J’s attention was not drawn to High Court and Full Court authority to the effect that breach of Australia’s non-refoulement obligations was not a mandatory relevant consideration in determining Australia’s “national interest”.
The Acting Minister cited Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [74] per Kiefel and Bennett JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [127] per Heydon and Crennan JJ and Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [101] per McHugh and Gummow JJ, where their Honours referred to the effect of unenacted international obligations upon discretionary decision-making, under statutory powers and without specification of those obligations, and stated that such obligations “are not mandatory relevant considerations attracting judicial review for jurisdictional error”.
In response to the applicant’s reliance on review for “unreasonableness” (as opposed to mandatory relevant considerations), the Acting Minister submitted that the claim of unreasonableness was “just emphatic disagreement with a [sic] administrative decision as is the speculation about the impact on Australia’s international reputation”. The Acting Minister contended that the applicant pointed to nothing in the particular facts of his case which made the Minister’s decision unreasonable.
The Acting Minister submitted that Rares J’s reasons in CPJ16, particularly at [43] and [49], are “better understood as holding that the Minister’s reasons as a whole were legally unreasonable”.
As to the Acting Minister’s further supplementary submissions (see [6] above), in large part they repeated his earlier submissions. In addition, he submitted that the applicant “appears to accept the unconfined breadth of the national interest”. In my view, the applicant made no such acceptance and, in any event, the Acting Minister’s submission is contrary to Graham at [57].
The Acting Minister submitted that the legal requirements for unreasonableness and a correct understanding of the law were not synonymous and should not be conflated. Up to a point, that may be accepted, but it has repeatedly been recognised that the grounds of review may overlap (see, for example, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ; Minister for Immigration and Citizenship v Li[2013] HCA 18; 249 CLR 332 at [72] per Hayne, Kiefel and Bell JJ; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [77] per Robertson J and note also Avon DownsPty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 where Dixon J stated that jurisdictional error concerning a subjective jurisdictional fact may often be explained in alternative ways and that it “is not necessary that you should be sure of the precise particular in which he has gone wrong”).
The Acting Minister then submitted that the applicant’s reliance on “unreasonableness” should not be permitted to subvert the proposition that breach of Australia’s non-refoulement obligations was not a mandatory relevant consideration in assessing the national interest. Again, this submission fails to take into account the fact that the grounds of review may overlap and that the Acting Minister’s decision is amenable to judicial review not only for unreasonableness, but also on the question whether he acted on a correct understanding of the law (see Onus v Minister for the Environment [2020] FCA 1807).
Significantly, and notwithstanding the terms of the grant of leave for the Acting Minister to file supplementary submissions, nowhere in his supplementary submissions did he squarely address the proposition that his approach distorted the decision-making process by not assessing the implications of Australia breaching its non-refoulement obligations in his assessment of the national interest and deferring that assessment to a later stage of the decision-making process relating to the residual discretion. Nor did the Acting Minister respond to the significance of the structure of s 501A(2).
The applicant’s submissions in reply summarised
In his written reply submissions and his supplementary submissions in reply, the applicant made the following contentions. First, he rejected the Acting Minister’s description of his argument as “novel”. He emphasised that it was supported by both CPJ16 and FRH18. The applicant submitted that the Acting Minister could, in particular circumstances, fall into jurisdictional error in not considering non-refoulement obligations in assessing the “national interest”.
Secondly, the applicant reiterated that he placed no reliance upon mandatory relevant considerations, consequently the authorities cited by the Acting Minister (see [58] above) were not relevant to his argument of unreasonableness.
Thirdly, the applicant emphasised the particular circumstances of his case which were relevant to his unreasonableness argument, being the circumstances summarised at [51] above.
The applicant disputed that he needed to adduce evidence to demonstrate that breach of Australia’s international obligations would have some particular detrimental effect on Australia’s international reputation. He submitted that it was “self-evident” that dishonouring a solemn promise is apt to undermine confidence in the promisor.
It is unnecessary to summarise the applicant’s further supplementary submissions because they are substantially reflected in my reasons below.
Consideration and determination
(a) Relevant legislative provisions and case law
(i) General
It is well to set out the relevant parts of s 501A of the Act (noting in particular the structure of s 501A(2) and the separate precondition in s 501A(2)(e) that the Minister is satisfied that refusal or cancellation is in the national interest):
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.
…
Sub-section 501A(3) confers on the Minister a power to set aside an original decision and either refuse to grant or cancel a visa where the following two conditions are met:
(a)the Minister reasonably suspects that the person does not pass the character test as defined in s 501; and
(b)the Minister is satisfied that refusal or cancellation of a visa is in the national interest.
The difference between sub-sections 501A(2) and (3) is that natural justice requirements apply to the former power but not to the latter power. Presumably this is why express provision is then made in s 501C(4) for the Minister to revoke what is described as the “original decision” if the person makes representations in accordance with an invitation given under s 501C(3)(b) and the person satisfies the Minister (post-decision) that he or she passes the character test.
Reference should also be made to a suite of provisions in the Act which address the issue of non-refoulement (see ss 5H, 5J, 35A, 36, 37A, 91A-91X and 197C). As the plurality (Nettle, Gordon and Edelman JJ) noted in Applicant S270/2019 at [34] (footnotes omitted):
… 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. …
(ii) The national interest
Unsurprisingly, there is no definition of “the national interest” in the Act. It should be noted, however, that the object of the Act is stated in s 4 to be “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens” (emphasis added). Necessarily, therefore, the suite of provisions in the Act which address the issue of non-refoulement (as set out at [72] above), which are directed to the issue of non-refoulement and the grant of protection visas in order to comply with Australia’s non-refoulement obligations, are intended to serve the national interest.
That is not to say that the various Conventions to which Australia is a party and which underpin the provisions in the Act relating to non-refoulement have been enacted into domestic law. Rather, as the High Court pointed out in Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) [2010] HCA 41; 243 CLR 319 at [27] “… the Migration Act contains an elaborate and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol”. Those observations apply equally to other relevant Conventions which give rise to non-refoulement obligations in international law. In Plaintiff M61/2010E, the High Court then added at [27]:
… Consistent with that assumption [i.e. that Australia has protection obligations to individuals], the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well‑founded fear of persecution for a Convention reason.
It is also apt to repeat what the plurality said in Graham at [57] (see [44] above) regarding the concept of the “national interest” (in the context of the Minister’s power to refuse to grant or to cancel a visa under s 501(3)). The Minister’s satisfaction of what is in the national interest was described there as “broad and evaluative” but “not unbounded” (emphasis added). The same can be said regarding the concept of “the national interest” in s 501A(2).
It is apposite to note how the plurality in Graham at [56] highlighted the structure of s 501(3) as conferring a power on the Minister, which particular power may only be exercised if two conditions are met, namely:
(a)the Minister reasonably suspects that the person does not pass “the character test”; and
(b)the Minister is satisfied that the refusal or cancellation “is in the national interest”.
Both those conditions also apply to the exercise of the Minister’s power under s 501A(2). There is an additional condition, namely that the person does not satisfy the Minister that the person passes the character test.
The Minister’s obligation under s 501A(2) to comply with natural justice requirements in exercising the power under that provision means that an affected person has an opportunity to make representations on any of the three conditions to the exercise of the power under s 501A(2), as well as in respect of the residual discretion, before the Minister makes a final decision.
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 might also be noted that in Graham the plurality noted at [58] that the structure of the Minister’s statement of reasons in that case revealed that the Minister treated his satisfaction that cancellation of the visa was in the national interest as “the starting point for the consideration of the exercise of discretion…”. The same may be said of the Acting Minister’s reasons in the present proceeding.

It is appropriate to say something more at this point about the High Court’s decision in Re Patterson. That case involved a judicial review challenge to the exercise of the Minister’s decision under s 501(3) to cancel a visa. The Minister was empowered to cancel a visa if the Minister reasonably suspected that the person did not pass the character test and the Minister was satisfied that the cancellation was in the national interest. Justice Gaudron said at [78] that the terms of the provision made it clear that national interest considerations were “separate and distinct” from the question whether or not a person passed the character test. Her Honour acknowledged that matters which resulted in a person failing the character test could also provide the foundation for the Minister’s satisfaction that it was in the national interest to cancel the person’s visa. Her Honour added, however, at [80] that this was not to say that a person’s conduct which resulted in the person failing the character test necessarily meant that those circumstances would found a satisfaction that it was in the national interest to cancel the person’s visa. Her Honour emphasised that the issues “must be considered separately”. Where the same conduct was relied upon for the purposes of both conditions, her Honour said that “there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it was in the national interest to cancel the visa of the person concerned”.
Re Patterson clearly establishes that the Minister’s decision under a provision such as s 501(3) is amenable to review for jurisdictional error. At [82], Gaudron J said (footnotes omitted):
A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided or misunderstands the nature of the opinion which he or she is to form. …
To similar effect, see Re Patterson at [189] per Gummow and Hayne JJ.
(iii) Non-refoulement obligations
Although the concept of non-refoulement is not defined in the Act, the following definition of “non-refoulement obligations” appears in s 5:
non-refoulement obligations includes, but is not limited to:
(a)       non-refoulement obligations that may arise because Australia is a party to:
(i)        the Refugees Convention; or
(ii)       the Covenant; or
(iii)      the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
Recently, in Ali at [24], the Full Court summarised the concept of “non-refoulement” and its relationship with the Act by reference to another Full Court decision (Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 (Ibrahim Full Court)):
The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100] – [113]. In summary and relevantly for the purposes of this matter:
(a)the term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:
Article 33
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(b)In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.
(c)In the Act, the concept of “non-refoulement obligations” is not limited to those obligations which arise under the Convention and includes obligations arising under other international treaties and international law. It is not confined to protection obligations which arise under s 36(2) of the Act (at [103]).
(d)Although the term “non-refoulement obligations” has been used interchangeably with the term “protection obligations” as used in s 36(2)(a) of the Act, the two do not truly compare as Australia’s non-refoulement obligations under international law are wider and more comprehensive than those which are given domestic force by s 36(2) (at [103] to [104]).
(e)The internal relocation principle applies in the consideration of the non-refoulement obligations, but it is not relevant to the determination of whether a protection visa should be granted under s 36(2)(a) (at [113]).
It is also convenient to set out what the Full Court said in Ali at [91], referring to an observation by Wigney J in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [224]:
His Honour’s comment in the last sentence emphasised that the consequence of non-compliance with Australia’s treaty obligations does not only impact on the person who might be returned to their home country. It impacts upon Australia’s reputation and standing in the global community. This point was also recognised by Charlesworth J in Hernandez (at [63]):
Had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4). The existence of the obligation is clearly capable of furnishing “another reason” why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law. Accordingly, meaningful consideration of the issue may have made a difference to the ultimate outcome.
(iv) The Full Court’s decision in AQM18
As has been emphasised, the Acting Minister undoubtedly recognised that, in this particular case, the exercise of his power under s 501A(2) would put Australia in breach of its international non-refoulement obligations. He considered that this was outweighed by other considerations which favoured the decision to refuse to grant the applicant the visa. The only issue is whether the Acting Minister fell into reviewable error in considering the implications of Australia being in breach of those obligations when he addressed his residual discretion under s 501A(2) and not earlier in his analysis, with particular reference to a precondition to the exercise of the power, namely that he was satisfied that refusing to grant the visa was in the national interest.
This is not the first reported case in which a Minister has proceeded to cancel or refuse a visa notwithstanding that it was understood that the consequence of the decision would be that the affected person would be removed from Australia to their country of origin in breach of Australia’s non-refoulement obligations. Another example is AQM18v Minister for Immigration and Border Protection [2019] FCAFC 27; 268 FCR 424 at [17] per Besanko and Thawley JJ (to similar effect, see White J’s conclusion on this issue at [119]).
As in the present proceeding, the power exercised by the Minister in AQM18 was s 501A(2). The Minister set aside a decision of the AAT and refused to grant the appellant a protection visa.
The primary judge had held that the Minister had proceeded on a misunderstanding as to the effect of ss 198 and 197C because the Minister thought that the appellant would not be refouled in breach of Australia’s non-refoulement obligations (see AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; 162 ALD 449). On appeal, the Full Court held that the Minister had understood that the appellant would be refouled as a consequence of his decision. The plurality said that the Minister had weighed the issue of non-refoulement obligations against his earlier finding that it was in the national interest to refuse the appellant’s application for a protection visa (see at [23] per Besanko and Thawley JJ).
The primary issue in the appeal in AQM18 was whether the Minister fell into jurisdictional error in exercising his power under s 501A(2) in a period which was beyond a reasonable time. The Minister cross-appealed and challenged the primary judge’s conclusion that the Minister had misunderstood the legal consequences of his decision and failed to take those consequences into account. The Full Court dismissed the appeal and allowed the cross-appeal.
It is notable that the sole judicial review ground raised by the present applicant did not arise in AQM18.
Perhaps unsurprisingly, notwithstanding the Acting Minister’s reliance on AQM18 at the initial hearing on 28 September 2020, no reliance was placed by him on that authority when the hearing resumed, presumably because, upon reflection, the Acting Minister recognised that the issue now raised had not been raised in AQM18.
As the applicant repeatedly stated, his judicial review challenge is not based on a claim that the Minister failed to take into account a mandatory relevant consideration. Rather, it is based on the concepts of unreasonableness and the need for the Acting Minister to have a correct understanding of the law. For that reason, it is difficult to understand the Acting Minister’s reliance on Huynh, Nystrom and Lam, none of which address these concepts. In the first two of those cases, it was held that, in exercising the power under s 501 to cancel a person’s visa, there was no obligation on the Minister to consider specific factors which are personal to the visa holder, such as the circumstances surrounding the offences that have been committed. I do not consider that those cases answer the applicant’s complaint in the present proceeding, which does not rely on any contention of a failure to take into account a mandatory consideration. Moreover, the issue of Australia’s non-refoulement obligations has a much broader character than a matter which is entirely specific to a visa holder or visa applicant, such as the circumstances surrounding the offence for which the person has been convicted. It is important to bear in mind that Australia’s non-refoulement obligations are owed not to the visa holder or visa applicant, but to the international community. That is not to deny, however, that the question whether or not those obligations have been enlivened will necessarily involve consideration of the circumstances pertaining to a particular individual.
As to Lam, which was also cited by the Acting Minister, the observations of McHugh and Gummow JJ were directed to the issue of mandatory relevant considerations, which is not relied upon by the applicant in the present proceeding.
I 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. It may be interpolated at this point that as McHugh, Gummow and Hayne JJ observed in Yusuf at [82] different kinds of error which give rise to jurisdictional error “may well overlap”.
It is appropriate to say something more about the nature and scope of these grounds of review as they apply to what can be described as a “subjective jurisdictional fact”.
(b) Judicial review of subjective jurisdictional facts
(i) Illogical, irrational or unreasonable reasoning
As noted above, I do not consider that the condition in s 501A(2)(e) is accurately described as a discretionary power, the exercise of which would attract the principles concerning reasonableness in the legal sense identified in cases such as Li and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1. That is not to say that the Minister’s satisfaction as referred to in that provision is not amenable to judicial review for unreasonableness. The Acting Minister correctly acknowledged at [16] of his statement of reasons that the question of his satisfaction as to what was or was not in the national interest “must be attained reasonably”.
The Acting Minister’s satisfaction as to whether a visa should be refused because it is in the national interest constitutes a jurisdictional fact, as that concept was described by the High Court in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 at [43]. Adopting the approach of the Full Court in Ali at [41], I consider that the Minister’s state of satisfaction in s 501A(2)(e) is a “subjective jurisdictional fact”.
There is a comprehensive and helpful description of the ambit of judicial review of such a subjective jurisdictional fact in Ali at [42] ff. (I understand that the Minister has indirectly challenged the correctness of Ali in an appeal he has brought in FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124, but the Court was informed by counsel that the grounds of appeal do not challenge the Full Court’s description of the scope of judicial review of a subjective jurisdictional fact). As the Full Court noted in Ali at [42], the existence of a subjective state of mind is not beyond review by the Court, but “the grounds upon which it may be “reviewed” are limited” (referring to cases such as Avon Downs at 360 per Dixon J and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] per Gummow and Hayne JJ).
It is desirable to set out Dixon J’s frequently cited statement of principles in Avon Downs at 360, which describes the ambit of judicial review of a subjective jurisdictional fact:
But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
The passage from SGLB at [38] per Gummow and Hayne JJ which was referred to by the Full Court in Ali is as follows (footnote omitted, and noting that the statements refer to the Minister’s satisfaction under s 65 of the Act, which their Honours described at [37] as “a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned”):
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.
Reference should also be made to Latham CJ’s statement of the principles in R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430, where the Chief Justice said:
[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.
The Chief Justice added at 432:
It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
It is important not to lose sight of what Gibbs J said in Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 regarding the practical difficulty of establishing unreasonableness in the case of a state of satisfaction which is a matter of opinion or policy:
In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.
Those observations have particular resonance in the present proceeding where the Minister’s state of satisfaction relates to the very broad and evaluative concept of “the national interest”.

The High Court’s decision in Minister for Immigration and Citizenship v SZMDS[2010] HCA 16; 240 CLR 611 is another important authority in identifying the scope of judicial review of subjective jurisdictional facts. Although the High Court divided three to two on the outcome, the majority and minority judgments substantially reflect similar legal principles. The Court split in applying those principles to the particular circumstances of the case.
The Court unanimously decided that the Minister’s state of satisfaction for the purposes of s 65 of the Act in determining whether or not to grant a visa was a jurisdictional fact. Justices Crennan and Bell stated at [120] that an erroneously determined jurisdictional fact may give rise to jurisdictional error and their Honours gave the following examples (footnotes omitted):
… The decision maker might, for example, have asked the wrong question or may have mistaken or exceeded the statutory specification or prescription in relation to the relevant jurisdictional fact. Equally, entertaining a matter in the absence of a jurisdictional fact will constitute jurisdictional error.
Their Honours also acknowledged that a jurisdictional fact was subject to judicial review where the reasoning in relation to it was “illogical or unreasonable, or irrational” (at [124]), whilst also emphasising that not every lapse in logic will give rise to jurisdictional error and the need for the Court to be “slow, although not unwilling, to interfere in an appropriate case” (at [130]). Their Honours then said at [131]:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Finally, it is important to note the emphasis placed by Crennan and Bell JJ on the significance that, unlike Avon Downs, the decision-maker in SZMDS had provided reasons for decision, as required by s 430 of the Act (at [105]).
The importance of reasons was given further emphasis by Gummow A-CJ and Kiefel J in dissent in SZMDS (see at [32] ff). Their Honours acknowledged at [35] the need, upon judicial review, for reasons “not to be scrutinised in an over-zealous fashion”. At [40], Gummow A-CJ and Kiefel J referred approvingly to what Gummow and Hayne JJ had said in SGLB at [37]-[38], namely that, in a case involving judicial review of a subjective jurisdictional fact, “the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds” and is a question which “should not receive an affirmative answer that is lightly given”. 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 Acting Minister placed heavy reliance upon Lander J’s reasons for judgment in Maurangi v Bowen [2012] FCA 15; 200 FCR 191 at [63] to [70]. That case involved judicial review of the Minister’s decision under s 501A(2). In response to the applicant’s contention there that the Minister had misconstrued the expression “in the national interest”, Lander J said at [67] that as long as “the Minister addresses the question whether the refusal or cancellation of a visa of a person who does not satisfy the Minister that the person passes the character test is in the national interest the Minister will have acted within jurisdiction”. At [68] to [70], his Honour referred to Madafferi, Gunner and Re Patterson. It is notable that his Honour made no reference to cases such as SZMDS and Avon Downs. It is equally notable, however, that at [71] Lander J said that there was nothing to suggest in Maurangi that the Minister acted unreasonably. Evidently, his Honour accepted that the Minister’s decision under s 501A(2) was amenable to review for unreasonableness. For the reasons I have given above, I consider that such a decision is also reviewable on the basis whether the Minister acted with a correct understanding as to the law.
In support of the Acting Minister’s contention that it was speculation that breach of Australia’s non-refoulement obligations would impact Australia’s international reputation, he relied upon the following passages from Minister for Immigration and Multicultural Affairs v Khawar[2002] HCA 14; 210 CLR 1 at [44]-[45] per McHugh and Gummow JJ concerning the Refugees Convention (footnotes omitted):
44.Although none of the provisions in Ch V gives to refugees a right to enter the territory of a Contracting State, in conjunction they provide some measure of protection. Nevertheless, it remains the case, to repeat one commentator:
“States the world over consistently have exhibited great reluctance to give up their sovereign right to decide which persons will, and which will not, be admitted to their territory, and given a right to settle there. They have refused to agree to international instruments which would impose on them duties to make grants of asylum.
Today, the generally accepted position would appear to be as follows: States consistently refuse to accept binding obligations to grant to persons, not their nationals, any rights to asylum in the sense of a permanent right to settle. Apart from any limitations which might be imposed by specific treaties, States have been adamant in maintaining that the question of whether or not a right of entry should be afforded to an individual, or to a group of individuals, is something which falls to each nation to resolve for itself.”
45.Several further points should be made here. The first is that the Act is not concerned to enact in Australian municipal law the various protection obligations of Contracting States found in Chs II, III and IV of the Convention. The scope of the Act is much narrower. In providing for protection visas whereby persons may either or both travel to and enter Australia, or remain in this country, the Act focuses upon the definition in Art 1 of the Convention as the criterion of operation of the protection visa system.
I do not view those passages as supporting the Acting Minister’s case in the particular circumstances here. As Mr Wood (who appeared for the applicant, together with Mr McDonald Norman) pointed out, those passages need to be read in the light of [42] of Khawar, where their Honours highlighted the limited nature of individual rights under the Refugees Convention itself.
Nor do I accept the Acting Minister’s position regarding the significance to the present proceeding of s 197C of the Act. As the terms of s 197C make clear, that provision goes no further than to state that, for the purposes of s 198 (i.e. for the purpose of an officer removing an unlawful non-citizen from Australia), it is irrelevant whether Australia has non-refoulement obligations in respect of the person. The provision says nothing about Australia’s non-refoulement obligations in respect of the exercise of other powers or duties under the Act. The extrinsic materials and contents of Direction 79 referred to above also make clear that solemn assurances were given that Australia would honour its international obligations concerning non-refoulement in other ways.
For completeness, it may be noted that Applicant S270/2019 is not determinative of the issues which arise in the present proceeding. No question relating to the national interest arose in that case. It dealt with a different issue, namely whether Australia’s non-refoulement obligations were a mandatory relevant consideration in exercising the power under s 501CA(4) of the Act. The plurality held that where no non-refoulement claim was made on the materials, nor any such claim suggested in the circumstances of that case, such obligations were not a mandatory relevant consideration.
(ii) The need to have a correct understanding of the law
In Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218; 256 FCR 50 at [46], White J held that even when the Minister is considering as broad a matter as the national interest in exercising the power under s 501BA of the Act, a correct understanding of the law to be applied is an implied condition of the valid exercise of power. (The Minister did not appeal from this judgment. The appeal in Ibrahim Full Court referred to at [83] above concerned a subsequent decision relating to the same Mr Ibrahim).
In my view, the same requirement applies when the power being exercised is that conferred by s 501A(2). I respectfully agree with White J’s careful analysis of the relevant authorities. They support the proposition that the subjective jurisdictional fact contained in s 501A(2)(e) must be formed reasonably and on a correct understanding of the law (see, in particular, Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [33] per Gageler and Keane JJ; Graham at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Ibrahim Full Court at [51]-[56] per White, Perry and Charlesworth JJ and Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54] per Robertson J).
(c) The Acting Minister’s jurisdictional error
As has been emphasised above, the expression “the national interest” is a broad and evaluative one, but it is not unbounded. The Acting Minister noted in his statement of reasons that his state of satisfaction as to what is or is not in the national interest is a question which has been entrusted to the Minister by the Parliament, but he then correctly acknowledged that this satisfaction “must be attained reasonably”. Moreover, the requisite satisfaction must be reached on a correct understanding of the law.
Consideration of the question of the national interest can be affected by the particular circumstances of the case, including any representations made by an applicant on that subject. It is to be recalled that a feature of the power conferred by s 501A(2) is that it must be exercised in accordance with natural justice requirements, which include an affected person having an opportunity to make representations prior to a decision being made whether or not to exercise the power. That is not say, however, that in attaining the state of mind as to whether or not he or she is satisfied for the purposes of s 501A(2)(e) that the refusal of a visa is in the national interest, the Minister has only to address any such representations made by the affected person on the subject of the national interest. The Minister’s task is wider than that because he or she is obliged to have a correct understanding of the law, which necessarily involves the Minister having to address any relevant component of the national interest which arises squarely on the material before the Minister. This may include representations made by the applicant on that subject, but it is not necessarily confined to consideration of such representations.
It should be reiterated that the applicant in this case did raise the issue of non-refoulement in his representations to the Minister but, consistently with the structure of Direction 79 and the Department’s encouragement to follow that structure, those submissions were not under the heading of “national interest” (see [17] to [22] above).
In the particular circumstances of this case, 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 he made. Those findings involved an acceptance by the Acting Minister that Australia owed non-refoulement obligations in relation to the applicant, and that refusing him the visa would put Australia in breach of those obligations because necessarily the applicant would have to be returned to his country of origin where there was an accepted risk that he would be killed. The Acting Minister’s decision to refuse the applicant the visa meant that the applicant would be refouled in breach of Australia’s obligations under international law. That very serious consequence for Australia had to be confronted and assessed by the Acting Minister in assessing the national interest as required by s 501A(2). 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 the applicant a visa.
The Minister erroneously confined his assessment of the national interest by simply focusing upon the seriousness of the applicant’s criminal conduct, the sentence he received, the risk of him reoffending and the harm to the Australian community if such a risk eventuated. Those matters were relevant to an assessment of the national interest, but so were 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.
It has been recognised in other cases that Australia’s international reputation and standing falls within the ordinary meaning of the expression “national interest”. For example, in Applicant M 117 of 2007, in determining whether cancellation of the visa was in the national interest for the purposes of s 501(3), the Minister took into account under the rubric of the national interest that Australia’s international reputation and good standing would be damaged if the nation provided, or was seen to provide, a safe haven for people who have committed serious crimes in another country, or are wanted to face charges for such crimes. At [45], Kenny J described the damage to Australia’s international reputation that might result from allowing a non-citizen to remain in the country to be a matter which “plainly falls within the ordinary conception of national interest”.
In Wong at [33], after observing that the primary determination of what is in the national interest is for the Minister and not for the Court, Tamberlin J observed that the expression “national interest” can include a consideration of Australia’s position as a nation in relation to other nations. His Honour said that immigration is an area which necessarily involves Australia’s relationship with nationals or persons from other countries and their admission into (or removal from) Australia. His Honour added at [33] that this relationship “can involve the perceptions by other nations of Australia as a member of the international community and such perceptions can be of great significance to Australia”. To similar effect, see the Full Court’s observations in Ali at [91], which are set out at [84] above.
It is apposite to note what Mason CJ and Deane J said in Minister of State for Immigration and Ethnic Affairs v Teoh[1995] HCA 20; 183 CLR 273 at 291. After acknowledging that the provisions of an international treaty which has been ratified by Australia do not form part of domestic law unless validly incorporated by statute, their Honours nevertheless emphasised the significance of Australia ratifying an international convention. Their Honours said that such ratification “is not to be dismissed as a merely platitudinous or ineffectual act”, but rather is to be viewed as “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”.
Finally, the meaning of the concept of “the national interest” was the subject of a decision by the Supreme Court of Canada in Agraira v Canada (Public Safety and Emergency Preparedness) [2013] SCC 36; 2 S.C.R. 559. Section 34(2) of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) (Canada) conferred a power on the Minister to provide ministerial relief in respect of a permanent resident or foreign national who is “inadmissible” on security grounds specified in s 34(1). Sub-section 34(2) provided that the specified grounds for inadmissibility in the previous sub-section do not apply to a permanent resident or foreign national “who satisfies the Minister that their presence in Canada would not be detrimental to the national interest”.
The term “national interest” was not defined in the legislation. The appellant had been denied Convention Refugee status on the basis that he lacked credibility. He then married a Canadian national and applied for permanent residence. His visa application was refused on the basis that he was “inadmissible” because of his membership of a terrorist organisation. There is nothing in the Court’s reasons for judgment to suggest that the principle of non-refoulement was raised by the appellant.
The Court noted at [65] that there was no dispute between the parties that the term “national interest” refers to matters which are of concern to Canada and Canadians. This included public safety and national security, matters which had been relied upon by the Minister, but the Court added at [65] that consideration of the “national interest” was not confined to those matters alone. Other matters within the term were identified by the Court as “the preservation of the values that underlie the Canadian Charter of Rights and Freedoms and the democratic character of the Canadian federation, and in particular the protection of the equal rights of every person to whom its laws and its Constitution apply”.
The Supreme Court traced the legislative history of s 34(2), which included a 2001 Senate Committee report on the relevant Bill. At [71], the Court set out the following passage from that report (emphasis in original):
The Committee recognizes that Bill C-11 represents a major overhaul of Canada’s immigration and refugee protection legislation, and it will thus likely set the standard for many years to come. The Committee also fully appreciates that the current context in which the Bill is being considered is one of heightened security concerns following the profoundly tragic events of 11 September 2001 in the United States. In this con-text the Committee realizes that the Bill must embody a balance that will respect the needs and rights of individuals while simultaneously serving the public interest particularly with respect to security concerns and meeting Canada’s international obligations.
Significantly, after setting out that passage, the Supreme Court then stated at [72] (emphasis added):
This passage certainly highlights the IRPA’s role in “serving the public interest… with respect to security concerns”. However, it does not limit the national interest to security concerns. It also highlights the fact that meeting Canada’s international obligations (including, presumably, obligations stemming from rules of customary and conventional international human rights law) is an important part of the national interest.
After referring to several matters which were relevant to the task of statutory construction, including the structure and context of s 34, the Supreme Court concluded at [82] that “… in determining whether a person’s continued presence in Canada would not be detrimental to the national interest, the Minister must consider more than just national security and whether the applicant is a danger to the public or to the safety of any person”.

The Court stated at [87] that ultimately, “which factors are relevant to the analysis in any given case will depend on the particulars of the application before the Minister…”.
The Court also referred to Guidelines which had been issued to officers who assessed “national interest” requests. The Court held at [88] that the Minister had not acted unlawfully in the particular case by relying predominantly on national security and public safety considerations. This is because the Minister’s reasons indicated that he did not “exclude the other important considerations in the Guidelines or any analogous considerations”.
While recognising, of course, that the observations of the Supreme Court were directed to the expression “national interest” in a different statutory context and related to different facts from those in the present proceeding, I consider that they broadly support the views I have expressed in these reasons for judgment as to the breadth of the term “the national interest” in s 501A(2). I find 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 that provision.
It is plain from the terms of the Acting Minister’s statement of reasons in the present proceeding that he appreciated and accepted that, as a consequence of his decision to refuse the applicant the visa, the applicant would be returned to his country of origin, where he was at risk of being killed. The Minister also made clear that he recognised that his decision would place Australia in breach of its international non-refoulement obligations in the particular circumstances of the applicant’s case.
It may be noted that the Acting Minister stated at [112] of his statement of reasons that he had given “considerable weight” to the risk that the applicant would be killed if he were returned to his country of origin, but he concluded that the existence of non-refoulement obligations in this case was outweighed by the national interest considerations which he had taken into account. The difficulty with this approach, in the particular circumstances of the applicant’s case, is that consideration of Australia’s non-refoulement obligations and the implications for Australia if those obligations were breached were only weighed in the balance by the Acting Minister when it came to the question of how he should exercise his residual discretion. It is worth reemphasising that s 501A(2) is structured in a way which highlights the distinct and separate pre-conditions to the exercise of the Minister’s power to refuse to grant a visa to a person. 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 structure of s 501A(2) is significant.
I reject the Acting Minister’s contention in his supplementary submissions that it should be inferred from his statement of reasons that he did turn his mind to the implications of Australia breaching its non-refoulement obligations in assessing whether or not it was in the national interest to refuse the visa, but concluded that it was not material to his assessment of that particular subject. Nothing in the statement of reasons supports such an inference and in any event 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.
In my view, the Acting Minister fell into jurisdictional error by assessing the question of the national interest on an erroneously narrow basis. The error can be described alternatively as reasoning unreasonably or failing to act upon a correct understanding of the law. The Acting Minister’s decision to, in effect, defer consideration of the significance of Australia breaching its international non-refoulement obligations to the last stage of his decision-making process (i.e. as to how his residual discretion should be exercised), meant that, when it came to weigh national interest considerations against other matters which were favourable to the applicant, the weighing was distorted. This was because the Acting Minister’s assessment of the national interest could have been different if he had factored into his assessment of the national interest the implications of Australia acting in breach of its international non-refoulement obligations. In other words, if the Acting Minister had directly confronted this issue in the earlier stage of his decision-making when assessing the national interest, there was at least a possibility that he may have given different weight to the national interest when subsequently balancing it with other considerations which were relevant to the exercise of his residual discretion. Further, there was at least a possibility that the 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, would not have progressed to consider his residual discretion.
The need for the Acting Minister to adopt and apply a correct understanding of the national interest is all the more important because it is natural to assume that considerable weight will be given to the assessment of the national interest when that matter comes to be weighed against other considerations which are relevant in the later stage of the decision-making process, being the residual discretion. It is not easy to think of many cases in which a Minister, having assessed that it is in the national interest to refuse to grant or to cancel a visa, will regard this assessment of the national interest as being outweighed by other considerations which arise under the rubric of the residual discretion. This highlights the fundamental importance of the responsible Minister properly understanding the wide ambit of the concept of the national interest so as to avoid any distortion in the subsequent balancing exercise.
It is the Minister’s task ultimately to conduct that balancing exercise, but the task must be carried out according to relevant legal principles. The Court cannot generally review the merits of the Acting Minister’s assessment of the national interest. That is substantially a matter for him. However, the formation of that assessment is susceptible to judicial review for jurisdictional error. It is important that each stage of the decision-making process (which includes the separate and distinct pre-conditions in s 501A(2)(c) to (e)) be conducted reasonably and on a proper legal basis, with a correct understanding of the meaning and application of relevant statutory concepts. The legal requirements for the Acting Minister to act reasonably and to have a correct understanding of the Act when forming the state of satisfaction required by s 501A(2)(e) are separate from any issue of mandatory relevant considerations (see Ibrahim Full Court at [114]).
Finally, I reject the Acting Minister’s submission that the applicant 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 non-refoulement obligations. The “national interest” is sufficiently broad to include Australia’s reputation on the international stage, but the applicant’s case did not turn only on that proposition. The applicant contended that, having entered into international Conventions which contained non-refoulement obligations, it was in the national interest for Australia to honour its international law obligations. That “national interest” is both inward looking and outward looking, as is reflected in what Mason CJ and Deane J said in Teoh at [34]. Moreover, not only did Australia ratify the relevant Conventions, but solemn assurances were given in the extrinsic material and in Direction 79 regarding Australia’s commitment to honouring those non-refoulement obligations. The Court is entitled to take judicial notice of the fact that acting inconsistently with international law obligations and those solemn assurances may undermine confidence both within Australia and externally. Moreover, as Mr Wood pointed out in oral address, the “fact that Australia is contemplating breaching its voluntary assumed [international] legal obligations, is not rendered of no significance by any perceived difficulty in proving the precise, practical impact that that would have for Australia’s reputation”.
For all these reasons, I consider that the Acting Minister fell into jurisdictional error.
Conclusion
The Acting Minister’s decision dated 16 July 2020 should be set aside. The applicant should have his costs of and incidental to the amended originating application but he must pay the respondent’s costs in respect of and incidental to the hearing dated 28 September 2020 having regard to the significantly different focus of the applicant’s case after that hearing finished. I do not accept Mr Wood’s submission that costs should be awarded on the basis that costs are generally awarded to a successful judicial review applicant even though some grounds of review fail. The litigation here has taken a somewhat unusual course. The focus of the applicant’s judicial review challenge took on a very different character after the hearing on 28 September 2020. That previous hearing, and all the steps leading up to it, were effectively rendered redundant by the applicant’s decision to abandon his earlier grounds of judicial review and replace them with a different single ground, upon which he has ultimately succeeded.

I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths.
Associate:
Dated: 23 December 2020

File number:	NSD 860 of 2020
Judgment of:	GRIFFITHS J
Date of judgment:	23 December 2020
Catchwords:	MIGRATION – judicial review of a decision by the Acting Minister under s 501A(2) of the Migration Act 1958 (Cth) (*Act) to set aside a decision of the Administrative Appeals Tribunal and refuse the applicant’s application for a Safe Haven Enterprise (Class XE) visa – acceptance by the Acting Minister that refusal of the visa meant that the applicant would be removed to his country of origin in breach of Australia’s international non-refoulement* obligations and at risk of being killed – significance of the structure of s 501A(2) of the Act – significance of separate pre-conditions to the exercise of the power, including a separate pre-condition concerning the Acting Minister’s satisfaction that refusal of a visa is in the “national interest” – whether the Acting Minister erred in the particular circumstances of the case by failing to consider the implications of Australia acting in breach of its international non-refoulement obligations in his assessment of the “national interest” under s 501A(2)(e) of the Act – Acting Minister fell into jurisdictional error by assessing the question of “national interest” on an erroneously narrow basis, which reflects unreasonableness and/or an incorrect understanding of the law – Acting Minister distorted his decision-making process by deferring his consideration of the implications of Australia breaching its international non-refoulement obligations to a later stage of the decision- making process relating to his residual discretion – Acting Minister’s decision set aside ADMINISTRATIVE LAW – consideration of the nature and scope of judicial review of subjective jurisdictional facts with respect to illogical, irrational or unreasonable reasoning and the need to have a correct understanding of the law
Legislation:	Migration Act 1958 (Cth), ss 5H, 5J, 35A, 36, 37A, 91A-91X, 195A, 197C, 198, 501, 501A, 501BA, 501C, 501CA Immigration and Refugee Protection Act (S.C. 2001, c. 27) (Canada), s 34
Cases cited:	Agraira v Canada (Public Safety and Emergency Preparedness) [2013] SCC 36; 2 S.C.R. 559 Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 109; 380 ALR 393 Applicant M 117 of 2007v Minister for Immigration and Citizenship [2008] FCA 1838 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897 AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; 162 ALD 449 AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; 268 FCR 424 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 BAL19 v Minister for Home Affairs [2019] FCA 2189 BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 Buck v Bavone [1976] HCA 24; 135 CLR 110 CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 980 FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 FRH18 v Minister for Home Affairs [2018] FCA 1769 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 Jione v Minister for Immigration and Border Protection [2015] FCA 144; 232 FCR 120 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218; 256 FCR 50 Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 Onus v Minister for the Environment [2020] FCA 1807 Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) [2010] HCA 41; 243 CLR 319 R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	141
Date of last submission:	18 December 2020
Date of hearing:	28 September and 10 December 2020
Counsel for the Applicant:	Mr N M Wood with Mr D J McDonald-Norman
Solicitor for the Applicant:	Human Rights for All
Counsel for the Respondents:	Ms R Francois with Ms K Morris
Solicitor for the Respondents:	Australian Government Solicitor

ORDER MADE BY:	GRIFFITHS J
DATE OF ORDER:	23 DECEMBER 2020

Introduction	[1]
Summary of background matters	[10]
Relevant extracts from the Acting Minister’s statement of reasons	[28]
The Department’s brief to the Acting Minister	[36]
The applicant’s submissions summarised	[39]
The Acting Minister’s submissions summarised	[54]
The applicant’s submissions in reply summarised	[65]
Consideration and determination	[70]
(a) Relevant legislative provisions and case law	[70]
*(i) General*	[70]
*(ii) The national interest*	[73]
*(iii) Non-refoulement obligations*	[82]
*(iv) The Full Court’s decision in AQM18*	[85]
(b) Judicial review of subjective jurisdictional facts	[96]
*(i) Illogical, irrational or unreasonable reasoning*	[96]
*(ii) The need to have a correct understanding of the law*	[114]
(c) The Acting Minister’s jurisdictional error	[116]
Conclusion	[141]