Drame v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] HCATrans 207

[2020] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S158 of 2020

B e t w e e n -

MOHAMED DRAME

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 30 NOVEMBER 2020, AT 2.15 PM

Copyright in the High Court of Australia

HER HONOUR:   On 10  September 2020, the plaintiff filed an application for a constitutional or other writ.  For the reasons that I now publish, the application is dismissed with costs.  The order of the Court is:  application dismissed with costs.

I publish that order and my reasons.  I direct that the reasons be incorporated into the transcript. 

On 10 September 2020, the plaintiff filed an application for a constitutional or other writ. The plaintiff applies for an order that the time in which to bring his application be extended to the date on which it was filed. He claims certiorari to quash the decision of a delegate of the defendant, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”), dated 4 March 2020, to not revoke the cancellation of his visa (“the non-revocation decision”) under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) and mandamus directed to the Minister, requiring that he decide the plaintiff’s revocation request according to law.

The plaintiff is a national of the Republic of Liberia (“Liberia”).  He and his parents arrived in Australia in 2004 holding Class XB Subclass 200 (Refugee) visas.  A criterion for the grant of this visa was that one or more members of the family were subject to persecution in their home country and that the person, or persons, subject to persecution was or were living in a country other than their home country[1].

[1]Migration Regulations 1994 (Cth), Sch 2, cl 200.211(1)(a).

The plaintiff’s parents were living in Liberia in the late 1990s at the time of the outbreak of civil war.  They escaped from Liberia to a refugee camp in Guinea, where the plaintiff was born.  Later the family moved to a town in southern Guinea near the border of Sierra Leone and Liberia.  When the plaintiff was aged seven years, rebel soldiers attacked the town and kidnapped him.  About nine months later, the plaintiff escaped from the rebel soldiers and was reunited with his family.  Thereafter, the family left Guinea and came to Australia.  The plaintiff was eight years old at the time he arrived in Australia.

The plaintiff has a criminal record in Australia commencing from when he was aged 14 years.  The last and most serious entry was his conviction for the offence of robbery in company.  On 17 April 2018, he was sentenced for this offence in the District Court of New South Wales (Bennett SC DCJ) to a term of four years and three months’ imprisonment with a non‑parole period of two years and three months.

On 14 August 2018, the plaintiff’s visa was cancelled under s 501(3A) of the Act. Under this provision, the Minister must cancel a visa if the Minister is satisfied that the holder does not pass the “character test”, relevantly because the person has a substantial criminal record as defined in s 501(7)(c) and the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence.

As soon as practicable after making the decision to cancel a person’s visa under s 501(3A), the Minister is required under s 501CA to invite the person to make representations in accordance with the regulations about revocation of the decision[2].  The plaintiff took up this invitation and made representations to the Minister in accordance with the regulations that the decision cancelling his visa be revoked.

[2]Migration Act 1958 (Cth), s 501CA(3)(b).

Section 501CA(4) is critical to the plaintiff’s case. It provides:

“(4)The Minister may revoke the original decision if:

(a)the person makes representations in accordance with the invitation; and

(b)the Minister is satisfied:

(i)that the person passes the character test (as defined by section 501); or

(ii)that there is another reason why the original decision should be revoked.” (emphasis added)

On 4 March 2020, a delegate of the Minister made the non‑revocation decision.  The delegate summarised the plaintiff’s submissions made in support of revocation of the cancellation decision as follows:

“–[The plaintiff] was born in a refugee camp in the Republic of Guinea (Guinea) and has no connection to and never lived in the Republic of Liberia (Liberia)

–All of [the plaintiff’s] immediate family reside in Australia and [the plaintiff] has no other family members outside of Australia

–As a child [the plaintiff] was kidnapped and forced to be a child soldier which has had a lasting impact on [the plaintiff’s] mental health

–[The plaintiff] attributes his offending to lack of ‘parental guidance’ and to getting involved with the wrong crowd whom introduced him to illicit substances

–[The plaintiff] is remorseful for his actions and states the likelihood of him re-offending is ‘so small’

–[The plaintiff] has completed a number of courses whilst incarcerated in order to assist his rehabilitation

–[The plaintiff] has contributed to the community by way of volunteer work”

The delegate was required to determine the plaintiff’s revocation request in accordance with Direction No 79, a direction given by the Minister under s 499 of the Act (“the Direction”). The Direction required the delegate, inter alia, to take into account three primary considerations: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community[3].  The delegate was also required to take into account other considerations where relevant[4].  “Other considerations” are stated non-exhaustively to include “international non‑refoulement obligations”[5]. Clause 14.1(1) of the Direction states that a non‑refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where the person will be at risk of a specific type of harm. Clause 14.1(1) names the international instruments that give rise to Australia’s non‑refoulement obligations and states that “[t]he Act reflects Australia’s interpretation of those obligations and, where relevant, decision‑makers should follow the tests enunciated in the Act”.

[3]Direction No 79 – Migration Act 1958 – Direction under s 499 (Cth), cl 13(2).

[4]Direction No 79 – Migration Act 1958 – Direction under s 499, cl 14.

[5]Direction No 79 – Migration Act 1958 – Direction under s 499, cl 14(1)(a).

Clause 14.1(4) should be set out in full:

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

Among the materials that the delegate took into account was an affidavit affirmed by the plaintiff’s mother that was tendered at the sentence hearing before Bennett SC DCJ.  His Honour’s reasons for sentence were also before the delegate.  These referred to the contents of two reports prepared by a psychologist who had interviewed the plaintiff.  The psychologist expressed the opinion that the plaintiff has been severely affected by having been kidnapped as a child and by the difficulties of adjusting to life in Australia.  In the psychologist’s opinion, the death of the plaintiff’s father in 2008 had led to further deterioration in the plaintiff’s mental health.  The delegate noted that the plaintiff has been diagnosed with long standing post‑traumatic-stress disorder (“PTSD”).

The delegate observed that the plaintiff and his family had come to Australia in 2004 as refugees and that the plaintiff’s circumstances “may give rise to international non‑refoulement obligations”. The delegate considered that it was unnecessary to decide whether such obligations are in fact owed to the plaintiff because the plaintiff is able to make a valid application for a protection visa. The delegate described an application for a protection visa as the “key mechanism” under the Act for the consideration of claims by a non‑citizen to fear harm if returned to the non‑citizen’s home country. The delegate referred, in this connection, to the Minister’s Department’s practice of applying the protection‑specific criteria before considering other criteria when processing protection visa applications. The delegate determined the plaintiff’s revocation request on the basis that he would have the opportunity to have any protection claims assessed in an application for a protection visa.

The delegate found that the plaintiff would face hardship in adapting to life in Liberia given his lack of familiarity with Liberian society and the absence of personal support.  The delegate accepted that the absence of a support network would have an effect on the plaintiff’s immediate employment opportunities in Liberia.  In this context, the delegate observed that the plaintiff does not have health concerns or medical issues that might impinge on his ability to gain employment.

The delegate gave “significant weight to the very serious nature of the crimes” committed by the plaintiff.  The delegate could not rule out the possibility that the plaintiff might engage in further offending.  The delegate concluded that the plaintiff represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed other countervailing considerations.

The plaintiff applied for review of the non‑revocation decision to the Administrative Appeals Tribunal (“the Tribunal”). On 24 August 2020, the Tribunal determined that it did not have jurisdiction to review the decision because the application was made outside the nine-day period prescribed by the Act[6].

[6]Migration Act, s 500(6B).

Under s 486A(1) of the Act, an application for a remedy in the exercise of this Court’s original jurisdiction in relation to a migration decision is to be made within 35 days of the date of the decision. The delegate’s decision is a migration decision[7]. Under s 486A(2), the Court may, by order, extend the 35-day period as it considers appropriate if an application for such an order has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in those interests to do so. The plaintiff also requires an order under r 4.02 of the High Court Rules 2004 (Cth) (“the Rules”), dispensing with compliance with the two-month time limit in which to apply for a writ of mandamus[8].
The plaintiff is some five months out of time under the Act and approximately 17 weeks out of time under the Rules.

[7]Migration Act, s 5(1).

[8]High Court Rules 2004 (Cth), r 25.02.01.

It is accepted that notification of the non-revocation decision was sent to the plaintiff’s last residential address known to the Minister and it follows that the plaintiff is taken to have received the notification on 17 March 2020[9].  The plaintiff explains the delay in commencing the proceedings on the basis that he did not, in fact, receive notice of the non‑revocation decision until 31 July 2020 when he was informed of it by his solicitor.

[9]Migration Regulations, reg 2.55(7)(a).

The Minister submits that whether the plaintiff has provided a satisfactory explanation for the delay, this Court should not make an order under s 486A(2) of the Act extending the 35-day time limit because the application discloses no arguable basis for the relief sought. I accept that submission. For the reasons to be given, I reject each of the grounds on which the non‑revocation decision is challenged, and it follows that there is no utility in extending the time in which to bring the proceeding.

The plaintiff’s first ground contends that the delegate erred in the purported exercise of his jurisdiction under s 501CA(4)(b) of the Act in finding that he did not need to consider, and by failing to consider, whether the plaintiff’s circumstances engage Australia’s non‑refoulement obligations. The argument draws on the analysis in Ali v Minister for Home Affairs[10] (“Ali”) for the proposition that if a claim that non‑refoulement obligations were owed was raised, the claim was required to be addressed as part of the consideration of whether under s 501CA(4)(b)(ii) there was “another reason” for revocation of the cancellation decision.

[10](2020) 380 ALR 393.

It is not in issue that the plaintiff is able to make a valid application for a protection visa. The delegate’s conclusion that it was unnecessary to consider whether the plaintiff engages Australia’s non‑refoulement obligations complied with cl 14.1(4) of the Direction. Particulars of the plaintiff’s challenge under his first ground contend that r 14.1(4) is invalid in that it purports to confine impermissibly the scope of matters that may constitute “another reason” for satisfaction that the decision to cancel a visa should be revoked under s 501CA(4)(b)(ii) of the Act.

In Ali the Full Court of the Federal Court (Collier, Reeves and Derrington JJ) commented on the “rapidly expanding number of decisions dealing with alleged errors by the Minister in relation to Australia’s non‑refoulement obligations, insofar as they relate to the Minister’s functions under s 501CA(4) of the Act and cognate provisions”[11]. The Assistant Minister had determined not to revoke the cancellation of Mr Ali’s visa under s 501CA(4), having found that it was unnecessary to consider Mr Ali’s claims to fear persecution and harm if he were returned to Ethiopia on the ground that Mr Ali was able to make a valid application for a protection visa. The Full Court held that the Assistant Minister had failed to consider a clearly articulated ground advanced by Mr Ali: whether returning Mr Ali to Ethiopia would breach Australia’s non‑refoulement obligations under the Act or otherwise, together with the consequences to Australia of that breach[12].

[11]Ali v Minister for Home Affairs (2020) 380 ALR 393 at 394 [1].

[12]Ali v Minister for Home Affairs (2020) 380 ALR 393 at 426-427 [103].

Ali was handed down before this Court’s decision Applicant S270/2019 v Minister for Immigration and Border Protection[13] (“Applicant S270”) and aspects of the analysis in Ali are not easily reconciled with the joint reasons in Applicant S270.  For present purposes it suffices to observe that the plaintiff’s case is to be distinguished from Ali in that the plaintiff made no claim to fear persecution or harm if he were returned to Liberia.

[13](2020) 94 ALJR 897; 383 ALR 194.

The circumstances in Applicant S270 are closer to the circumstances of the plaintiff’s case.  Applicant S270/2019 was born in Vietnam.  He spent some years in a refugee camp in Hong Kong before arriving in Australia in 1990 on what was likely to have been a Code 200 (Refugee) visa[14].  He was aged 15 years.  In his request to revoke the cancellation of his visa, Applicant S270/2019 did not make any claim to fear persecution or other serious harm.  His submissions broadly raised issues of a similar character to those raised by the plaintiff:  he had no ties to his country of birth; no place to live or to work there; and no knowledge of his way around the country[15].  The Minister determined not to revoke the cancellation of Applicant S270/2019’s visa.

[14]Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 899 [11] fn 2 per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 196.

[15]Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 900 [19]-[20] per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 197-198.

The joint reasons in Applicant S270 identified the key question in the appeal as whether the Minister was required to consider whether Australia owed non‑refoulement obligations to the appellant as “another reason” under s 501CA(4)(b)(ii). Their Honours answered that question “no”[16].  Their Honours said that there was nothing in any of the material submitted by Applicant S270/2019 in support of his revocation request that indicated that he held a subjective or well‑founded fear of persecution in Vietnam at the time of making the request.  This was determinative against Applicant S270/2019’s case[17]. Their Honours nonetheless went on to address the contention that Australia’s non‑refoulement obligations are a mandatory relevant consideration in exercising the s 501CA(4) discretionary power. Their Honours found nothing in the text of the provision, its subject matter, scope or the purpose of the Act requiring the Minister to take account of non‑refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, and the circumstances do not suggest, any non‑refoulement claim[18].

[16]Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 901 [26] per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 199.

[17]Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 902 [32] per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 200.

[18]Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 902 at [33] per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 200.

Their Honours observed that[19]:

[19]Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 902 [35] per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 201.

“[I]t is through express provisions in the Act that Australia’s non‑refoulement obligations under international law have been implemented in Australian domestic law; and, if a non‑citizen affected by cancellation seeks to have the Minister consider non‑refoulement and remains free to apply under those express provisions for a protection visa, the Minister is not required to consider non‑refoulement unless a claim for a protection visa is made.” (footnotes omitted)

And their Honours emphasised that consideration of a revocation request proceeds on the claims and material put forward by the applicant and that if “no refoulement claim is made ... non‑refoulement does not need to be considered in the abstract”[20].

[20]Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 902 [36] per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 201.

The plaintiff acknowledges that he did not make any non‑refoulement claim in his revocation application.  He seeks to distinguish Applicant S270 on the basis of the delegate’s finding:

“Mr Drame arrived in Australia on a Class XB Subclass 200 (Refugee) visa, and as such, Mr Drame’s circumstances may give rise to international non‑refoulement obligations.”

In circumstances in which the delegate himself identified that the plaintiff may have non-refoulement claims, the plaintiff submits that the delegate’s choice not to make further inquiries amounted to a constructive failure to exercise jurisdiction.  He contends that it was incumbent on the delegate to seek out records identifying the reasons for the grant of the visas on which he and members of his family entered Australia.  These documents, it is said, would have provided the starting point for consideration of the situation in Liberia and the assessment of whether the plaintiff is at risk of serious harm were he to be removed there.

The plaintiff submits that his position is to be distinguished from the position of the respondent in Minister for Immigration and Citizenship v SZIAI[21] in that he did not have, and did not have the means of obtaining, documents relevant to the question of whether his removal to Liberia engages Australia’s non‑refoulement obligations.  The plaintiff relies on the joint reasons in SZIAI for the acknowledgement that in some circumstances a decision‑maker’s failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertainable, might amount to a constructive failure to exercise jurisdiction[22].

[21](2009) 83 ALJR 1123; 259 ALR 429.

[22]Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; 259 ALR 429 at 436.

Whatever circumstances informed the grant of Class XB Subclass 200 (Refugee) visas to the plaintiff and his family in 2004, any consideration of Australia’s non‑refoulement obligations in 2020 would be with respect to the risks of harm to the plaintiff in Liberia at the present time and in the foreseeable future.  It is not self‑evident that the plaintiff did not have the means of obtaining material relevant to the assessment of any such risk.  In any event, it remains that the issues for the delegate’s determination were framed by the representations that the plaintiff made in response to the Minister’s invitation[23].  The delegate was required to consider any substantial or clearly articulated claim on the material before him, however there was no claim that the plaintiff feared persecution or was at risk of serious harm in Liberia.

[23]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 999 [43] per Gummow and Hayne JJ, 1019-1020 [124] per Callinan J; 207 ALR 12 at 21-22, 49.

It may be accepted that in some circumstances a decision‑maker may be required to address an unarticulated claim that is apparent on the face of the material before him or her[24].  There was, however, no material before the delegate raising any suggestion that the plaintiff was at risk of persecution or serious harm in Liberia.  This is not an instance of a decision‑maker failing to make an obvious inquiry as to a readily ascertainable matter.  As the Minister submits, if the delegate had chosen to consider whether the plaintiff’s return to Liberia would engage Australia’s non‑refoulement obligations, it would have been necessary for the delegate to embark on a wide‑ranging investigation.  I reject the submission that the delegate’s failure to make an inquiry concerning the reasons for the grant of the Class XB Subclass 200 (Refugee) visa to the plaintiff and his family in 2004 amounted to a constructive failure to exercise jurisdiction.

[24]DWN027 v Republic of Nauru (2018) 92 ALJR 548 at 552 [17]; 355 ALR 238 at 242-243.

The materials before the delegate did not include an indication, nor did the circumstances suggest, that the plaintiff fears persecution or is at risk of serious harm in Liberia at the present time or in the foreseeable future. In these circumstances the delegate was not required to consider Australia’s international non‑refoulement obligations in exercising the discretionary s 501CA(4) power.

The plaintiff’s second ground challenges the delegate’s finding at paragraph 58 of his reasons (“the employment finding”):

“Mr Drame is aged 24 with no reported health concerns or diagnosed medical issues that might impinge on his ability to gain employment.  Mr Drame would not be at a disadvantage in terms of his employability due to his age.”

The plaintiff contends that the employment finding failed to take account of the evidence of the plaintiff’s mother of his traumatic childhood and the evidence of the psychologist that he suffers from PTSD.  This was evidence of factors that were plainly capable of impinging on his ability to gain employment and the plaintiff submitted that it was not open to the delegate to make the employment finding without taking them into account[25].

[25]Drame v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCATrans 206 at 680-684.

The employment finding is to be understood in the context of the delegate’s reasons as a whole.  It was a finding of the absence of health concerns or diagnosed medical issues that would impinge on the plaintiff’s ability to gain employment in Liberia.  As set out at lines 83 to 106 above, in summarising the plaintiff’s case the delegate noted that the plaintiff’s experience of being kidnapped as a child and of being forced to be a child soldier has had a lasting impact on his mental health.  The delegate went on to review the evidence that had been presented at the sentence hearing including, at paragraph 26 of his reasons, the plaintiff’s mother’s account of the plaintiff’s “extremely traumatic experience of being kidnapped by rebel forces” and the psychologist’s opinion.  The delegate extracted passages from the psychologist’s two reports noting, at paragraph 28 of his reasons, that in the second she had provided further information about the effect that PTSD may have on an individual’s functioning.  Neither report appears to have suggested that the plaintiff’s condition impinged on his ability to obtain employment.

There is no warrant for concluding that the delegate overlooked the mother’s or the psychologist’s evidence when it came to the employment finding.  Nor can it be said that the employment finding was not open on the material before the delegate.  This material included that the plaintiff had successfully completed his Higher School Certificate without any apparent behavioural problems and that he had hopes of becoming a civil engineer.  He had been gainfully employed from mid to late adolescence in fast food restaurants, at a call centre, as an NBN cabling assistant and for an enterprise that provides gardening services.  And there was evidence that he had contributed to the community by undertaking volunteer work.  It cannot be said that the employment finding was not open to the delegate.

Neither ground provides an arguable basis for the relief that the plaintiff claims. There is no utility in making an order under s 486A of the Act, or in dispensing with compliance with the time limit under the Rules. The application must be dismissed. For these reasons there will be the following order: application dismissed with costs.

The Court is adjourned until 10.00 am on Tuesday, 1 December in Canberra.

AT 2.16 PM THE MATTER WAS CONCLUDED