Minister for Immigration and Border Protection v BCR 16

[2017] HCATrans 240

[2017] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M93 of 2017

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

BCR 16

Respondent

Application for special leave to appeal

BELL J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 NOVEMBER 2017, AT 11.18 AM

Copyright in the High Court of Australia

MR C.J. HORAN QC:   If the Court pleases, I appear with MS J.A. LUCAS for the applicant in this matter.  (instructed by the Australian Government Solicitor)

MS K.L. WALKER, QC:   If the Court pleases, I appear with MR N.M. WOOD for the respondent.  (instructed by Clothier Anderson Immigration Lawyers)

BELL J:   Yes, Mr Horan.

MR HORAN:   Your Honours, we are exercising powers in relation to the cancellation of a visa:  can the Minister deal with the question of non‑refoulement on the basis that it is open to the non‑citizen to make an application for another visa, and in particular a protection visa?  Differing views have been expressed on that question in the Federal Court.  Apart from the differences of opinion which arose in the courts below in this proceeding, the majority’s analysis involves attention, if not a direct conflict with, an established line of authority in the Full Court of the Federal Court.

BELL J:   This is a reference to Le, is it?

MR HORAN:   To Le and the cases that preceded Le, yes.

BELL J:   Le was concerned with the question of whether, for the purposes of a 501 determination, non‑refoulement was a mandatory relevant consideration.

MR HORAN:   That is correct.  We say that in addressing that question the Full Court and the Full Courts whose decisions were considered in Le, a necessary step in their reasoning was that when a protection visa application came to be considered and determined it would be necessary to consider claims for protection and the existence of non‑refoulement obligations at that point.

The conclusion of the Full Court in Le was not a broad conclusion that it is never a mandatory relevant consideration to consider non‑refoulement in a cancellation under section 501.  The conclusion was that in circumstances such as that case where it was open to the non‑citizen to make a further application for a protection visa that was not a mandatory relevant consideration.  That is why that step, that premise that non‑refoulement obligations would be assessed at that point was really a necessary step in the Full Court’s reasoning in that line of authority.

Whether or not that be correct the question for the Full Court in this case, the majority sought to distinguish that line of authority on bases we say are unsatisfactory, and I will come to that.  The dissenting judge, Justice Davies, followed and applied that line of authority, so there is within the Full Court’s decision itself a direct difference between whether or not that line of authority governed the outcome in the present case or not.

KEANE J:   How much of that difference depends upon the view one takes of the proper construction of the Minister’s reasons.

MR HORAN:   The central point raised by ground 1 does turn on paragraph 19 of the statement of reasons but it is not simply a matter of construction in a narrow factual sense.

KEANE J:   It is a very unattractive vehicle for special leave to ask us to enter upon this exercise basically on the basis that we start from the need to construe the reasons given in the particular case.

MR HORAN:   It is not for this reason, your Honour, that the whole of the majority’s analysis of paragraph 19 and why it involved a jurisdictional error in this case rested not so much on the particular words used in that section but upon an analysis of the statutory scheme in relation to both decision‑making for cancellation decisions on the one hand and decision‑making for visa applications, and in particular protection visa applications, on the other.

EDELMAN J:   Except your appeal, if you were to be granted special leave, could only succeed if you were to overturn the majority’s characterisation of the decision‑maker’s reasons.

MR HORAN:   That is correct.

EDELMAN J:   On the factual point about non‑refoulement obligations.

MR HORAN:   It is because that factual inference was drawn on the basis of the majority’s analysis of the statutory scheme and the interaction of section 501 and 501CA on the one hand and section 65 on the other.  That was the fundamental reason why the majority came to the conclusion that the Minister had misunderstood the operation of the Act and the course of decision‑making in relation to protection visa decisions.  We say that the majority’s construction or characterisation of those reasons was erroneous, not because of the particular construction of the words but because of the way in which the majority analysed the statutory scheme.

If I could come to the three fundamental errors that their Honours made:  first, they erred by concluding that the Minister had proceeded on a misunderstanding as to the likely course of decision‑making on any protection visa made by the respondent; second, the majority erred by finding that if the cancellation was not revoked the Minister would be required, as in under a legal duty, to refuse any subsequent application for a protection visa made by the respondent on character grounds without any consideration at all, let alone an assessment of protection claims or non‑refoulement obligations; third, the majority erred in failing to follow and apply the line of authority which culminated in the Full Court decision in Le.

That is why we say that paragraph 19 is the starting point for the analysis in relation to ground 1 but it is more than a mere question of fact arising in this particular case because it is based upon the analysis of the statutory framework which raises questions of principle and questions of law.  We say that those questions go to the operation of the Act and to the interaction between these two quite different areas of decision‑making under the Act. 

As a result, the approach adopted by the majority and on which their decision rests does have public importance and significant implications for decision‑making generally under the Act, not just in relation to cancellation decisions because the effect it has in relation to that area is that the Minister or delegate is required to conduct a substantive assessment of international non‑refoulement obligations before deciding whether or not to cancel a visa or to revoke a mandatory cancellation decision.

Secondly, in the context of protection visa decision‑making, it is a necessary premise of the majority’s reasoning that in fact protection visas can now be refused without considering protection claims at all and that in fact, in circumstances where there has been a proceeding cancellation on character grounds based on not passing the character test but on an exercise of discretion, balancing risk of harm and other relevant considerations, once that has been done, any subsequent visa application probably would, if not legally would, be required to be refused.

That is a very large proposition for the analysis of how decision‑making should proceed under section 65 of the Act and how, in particular, public interest criteria 4001 should be interpreted or applied and how section 65 1A(3) and its interaction with section 501 should be approached.

Our submission is that, as a fundamental question as to the operation of the statutory scheme, the fact that a cancellation decision has been made on character grounds or a mandatory cancellation has not been revoked under the character provisions does not in any way preclude or lead to the position that a subsequent visa application should consider, as an initial consideration, character grounds before embarking on any consideration at the time of that decision, that subsequent decision, of protection claims based on prevailing circumstances at that time.

EDELMAN J:   Where do we find in the majority’s reasons the contrary proposition?

MR HORAN:   The contrary proposition in the majority is at paragraph 52, which is at application book 172 to 173, where their Honours postulate that where there has been a refusal or a cancellation on character grounds then there is a real probability that the delegate would refuse a protection visa application on character grounds because it is said that that would lead to:

the most egregious of inconsistencies in a serious aspect of administrative decision‑making about the operation of the character provisions –

if the Minister or the delegate were not to refuse the subsequent protection visa application.  Then at the end of that paragraph their Honours acknowledge that it is not to say it must be done that way; rather, the point is the scheme of the Act permits and, one might say, contemplates it.  So their Honours are saying that, in effect, the scheme of the Act is such that if a person’s non‑protection visa has been cancelled on character grounds, then a subsequent protection visa application must be refused for the same reasons, otherwise there would be an inconsistency in an aspect of administrative decision‑making.  We say that there is no such inconsistency that arises from the consideration of a subsequent protection visa application. 

BELL J:   But the force of their Honours’ analysis was that they were concerned with a decision under 501CA(4)(b)(ii), namely, whether there is another reason why the original decision should be revoked.  In that context and in a context of considering that the matters raised by the applicant may or may not go to Australia’s non‑refoulement obligations and the Minister, taking a particular view, had considered that it was open to simply have no regard to those matters.

MR HORAN:   That is not quite correct, your Honour, because that is another fundamental misunderstanding that the majority, as opposed to Justice Davies and the primary judge, entered into, which was that the Minister was not saying that one can completely disregard as a reason for revocation a claimed risk of harm in the country to which the person will be returned. 

What the Minister was saying – and this accords with the direction that is given to all delegates under the Act to adopt precisely the same approach – was that one need not consider whether, as a matter of international law, non‑refoulement obligations arise in relation to an applicant.  That is for the reason that, because the applicant can apply for another visa, the applicant will not immediately be removed if such an application is made.  An assessment of international non‑refoulement obligations is premature.  What is not premature is an assessment of the risk of harm that is raised.

BELL J:   Do we find that in the ‑ ‑ ‑

MR HORAN:   We do, because this is in part related to ground 2, the Goundar issue.

BELL J:   Yes.

MR HORAN:   But it has a relevance.  If your Honours turn to the Minister’s statement of reasons at application book 100 to 101, one should bear in mind that the – I should say, before going to this, two things about the respondent’s representations in this case.  They included claims that Lebanon was unsafe due to sectarian violence.  The relevant claims are set out by the primary judge at application book 121 to 122.  One sees at application book 25 and 48 that the claim centred on a risk of harm from extremist sectarian groups who were targeting minority groups such as the Alawite sect to which the respondent belonged.  Those were explicitly identified by the applicant’s representative as raising non‑refoulement obligations, and that appears at application book 22.

BELL J:   You were going to take us to where in the reasons there is the consideration of harm other than non‑refoulement.

MR HORAN:   Encompassing the harm that raised non‑refoulement obligations and perhaps going beyond non‑refoulement, but the underlying risk of harm was from sectarian violence.  If one turns to paragraph 27, where the Minister is considering the extent of impediments if removed, then at the top of page 101 of the application book, the Minister says:

However, I accept that he would face some hardship in re‑establishing himself in Lebanon and the possibility of sectarian violence. 

That reference, in my submission, is taking into account the claimed fear of harm in a similar way to the way in which the Minister took into account the same risk in relation to the respondent’s daughter, at paragraph 24 on application book 100, where the Minister, in the middle of that paragraph says:

I find that a decision to not revoke would result in hardship for –

the respondent’s:

family unit if they were to relocate to Lebanon with him, given the possibility of sectarian violence and the separation from her extended family in Australia that –

the daughter –

would experience.

In the context of the ground relating to whether or not the Minister committed jurisdictional error by failing to consider the risk of harm in relation to the respondent’s daughter, that was rejected at both the primary level and by the majority on the basis that it was sufficient for the Minister to have adverted to the claimed possibility of sectarian violence in that context.  The Minister did exactly the same thing in relation to the respondent himself, in paragraph 27. 

EDELMAN J:   That is one of the questions that you agitate.

MR HORAN:   Yes.

EDELMAN J:   That is just a question of factual construction of a single Minister’s reasons in a single case.  That is hardly a question for special leave.

MR HORAN:   No, with respect, your Honour, because it may be that in relation to ground 2 to some degree that is correct.  Ground 2 of itself might not be a special leave point.

EDELMAN J:   But you cannot succeed without ground 2.

MR HORAN:   It nevertheless raises an important point about the way in which risk of harm is considered in the context of cancellation decision‑making.  In this case it is more than just a specific question on particular facts about whether or not this Minister in this case considered risk of harm. 

The question is whether, in relation to international non‑refoulement obligations, it is open to the Minister to take the approach that was taken in paragraph 19, which is to say that because the respondent could make an application for another visa, not just a protection visa but in this case in particular an application for a protection visa, thus it is unnecessary to determine whether non‑refoulement obligations are owed to the respondent for the purposes of this decision. 

It is inferred from that that the Minister misunderstood, had a mistaken assumption, that those non‑refoulement obligations would of necessity be required to be determined in the context of a subsequent protection visa application.

EDELMAN J:   If the Minister had used slightly different words, then we might not be here.

MR HORAN:   These words are the same words used in the direction to ‑ ‑ ‑

EDELMAN J:   But they are not.  The direction at paragraph 10.1, which is what I understand you rely upon ‑ ‑ ‑

MR HORAN:   The equivalent paragraph is 14 in relation to revocation requests.  It is 14.1(4) on page 269 of the application book.

EDELMAN J:   Yes.  Both 14.1 and 10.1 are part of a section which is concerned with other considerations.  The other considerations are mandatory relevant considerations.  So it is just providing that these things are not mandatory relevant considerations.  It is saying nothing about the grounds upon which the Full Court decided this application.

MR HORAN:   What the direction says is consistent with the approach that the Minister took in this case and has taken in other cases, that if the visa the subject of the cancellation decision is not a protection visa, then it is premature and unnecessary to assess international non‑refoulement obligations because they may not need to be assessed until much later in the context of an application for another substantive visa and in particular a protection visa.  The Act quite specifically exempts, in sections 501E and 501F, protection visas from the ordinary consequences of a cancellation decision.

Ordinarily, when somebody’s visa is cancelled, all other visas are taken to be cancelled and no other application in general terms can be made for another visa.  But there is a specific exception in each of those cases for protection visas.  The reason for that is that that is a mechanism that allows those obligations to be assessed at the point when it is needed to be done.

The Minister simply said, consistently with the line of authority in Le and consistently with the direction, that those could be left to be determined at a subsequent time, and that was open, provided that the Minister did not completely ignore the claimed risk of harm which, as I have taken your Honours to in this case, the Minister did not.  I see the light is on.  We would say that there is an important point that the state of authority is uncertain, given the divergent views and differences in authority.  In my

submission, that makes this case an appropriate vehicle to consider that point by this Court.  If the Court pleases.

MS WALKER:   If the Court pleases, could I start immediately by drawing the Court’s attention to a concession made by the Minister both below and in the written submissions filed in this Court, at paragraph 12(b), where effectively the Minister has accepted – we do not understand that this concession has been withdrawn – that, as a matter of construction of the Migration Act, the Act does not require that on an application for a protection visa a person’s non‑refoulement claims will necessarily be considered and determined because there are a number of criteria for the grant of a visa found in section 65, and that also then refers to other relevant sections that impose criteria. 

So it is possible, as a matter of law, for a person to make a protection visa application and for that application to be refused on the basis that, for example, the person does not pass the character test, because they do not pass the health criteria, because they do not pass other criteria in the regulations.  Legally, it is possible for that criterion – not a criterion relating to non‑refoulement but an entirely separate criterion – to be addressed first by a decision‑maker.  If that criterion is not satisfied then the person cannot receive a visa under section 65. 

As the Full Court notes, one can see a certain administrative convenience if there is a clear basis on which a person fails one of the section 65 criteria to simply refuse the visa on that basis without necessarily going through the more complicated exercise of assessing and determining that person’s non‑refoulement claims.

That was conceded both in paragraph 12 of the submissions and also in oral argument below.  I will just give the transcript reference.  It is page 72, line 24, where Mr Gray below quite frankly conceded that that is the correct construction of the Act, and if the Assistant Minister had misunderstood the operation of the Act then she would have made a jurisdictional error.  So there is no dispute about the operation of the Act as we understand it.  The dispute is:  did the Minister misunderstand the Act?  The answer to that question is found only by analysing what the Minister said in her reasons in paragraph 19. 

Fundamentally this is a case directed to a factual question – one paragraph in the Minister’s reasons.  That is ground 1, and that was the principal basis on which the Full Court allowed the appeal and set aside the decision.  Ground 2, the Goundar ground and the question of whether there might have been some claims of harm not rising to the level of non‑refoulement, was an alternative basis on which the Full Court reached its conclusion.  But even that depends upon a construction of the Minister’s reasons, because again there is no contention that Goundar was wrong.  As we understand it, the Minister said that Goundar could be distinguished but not that it was wrong. 

So fundamentally this is a case about a construction of principally one paragraph, paragraph 19 of the Minister’s reasons, but perhaps also some attention being required to be given to paragraph 27.  In our written submissions to this Court we said it might also turn on construction of the applicant’s claims as they were put to the Minister, although it may be that it is conceded that the claims could go beyond non‑refoulement, and the Minister’s position appears to be “if they did go beyond non‑refoulement, they are dealt with in paragraph 27”, which just brings us back to a very narrow focus.  What did the Minister mean in paragraph 19 and did she carry out the statutory task by reference to paragraph 27?

The short point really for your Honours is that this is not a suitable case for the intervention of this Court on special leave, given the particular need to simply construe the Minister’s reasons and understand what the Minister thought about the Act, because there is no dispute about the construction of the Act.

We would further say that the grounds lack merit, in particular when one considers paragraph 19 of the Minister’s reasons which can be found at application book 99.  We say, your Honours, that the word “Thus” in the fourth sentence of the Minister’s reasons is critical because it connects the premise – namely that the respondent is entitled to make an application for a protection visa, and that of course is reflected in the paragraph – with the conclusion that it is therefore unnecessary for this decision‑maker to consider non‑refoulement claims.

The implication from the way in which that paragraph is crafted, and in particular the word “Thus” but also the words “it is unnecessary” – the implication is that the Assistant Minister believed that any such claims would necessarily be addressed at some future time if a protection visa application was made.  That was why the Assistant Minister thought, “I do not need to do it because it will be done by somebody else”.

There was certainly no material before the court to suggest that what the Assistant Minister had in mind was that a person’s non‑refoulement claims simply might never be assessed.  That would be a fairly extraordinary position to take.  Plainly, the Assistant Minister thought that those claims would be addressed, but it is agreed between the parties that the Act would permit the resolution of a protection visa claim without those claims being assessed.  We say that when one does look at paragraph 19, plainly the Full Court was correct in the way that it understood the Minister’s reasoning and that the Minister did misunderstand the scheme of the Act.

Can I also mention to the Court by way of a factual update, your Honours might have noticed, or perhaps might not have noticed, that in footnote 1 of the respondent’s written submissions it was noted that the respondent has in fact made an application for a protection visa and through some oversight the words “insert date” were left in the submissions.

We have by way of both correcting that oversight and updating the Court as to the current status of that application filed and served and affidavit, but can I just indicate this?  The application was filed – or lodged with the Department on 6 September 2016.  It was refused and the respondent was notified of that refusal on 17 August 2017, so reasonably recently.  On 7 September 2017 an application for review was lodged with the AAT and that application remains on foot and is unresolved.

Now, I wanted to mention this to the Court for two reasons:  firstly, simply to ensure the Court has a complete factual picture, but also to say that this is an additional reason why special leave should not be granted, because it means that this case might prove not to be a suitable vehicle for resolution of the legal issues even if the Court thought they rose to the relevant level, because it is possible through this review process that the respondent will be granted a protection visa.

If he is granted a protection visa, that visa would effectively cause any earlier visa to cease to be in effect and so the visa that was cancelled, even if the Minister were ordered to go back and re‑exercise the revocation power and then perhaps exercised it favourably, the visa that was then effectively re‑enlivened would be overtaken by the protection visa.  So we say that that is an additional reason, your Honours, why this is not a suitable vehicle for special leave.

Can I finally mention reliance on Le and the suggestion that there is some split between different Full Courts in the Federal Court on the question of whether the Minister can defer consideration of protection obligations, and it is perhaps just to reiterate a point that was made I think by your Honour Justice Bell. 

Fundamentally, Le quite explicitly – and your Honours will see this at paragraph 61 of the judgment in Le where the Full Court summarises the relevant principles – Le was only a case directed to section 501(1) and section 501(2); discretionary powers to refuse or cancel a visa where a person does not pass the character test.

Their Honours were not asked to consider section 501CA(4).  They did not consider that section and that section is in materially different terms because it does not just focus on whether a person passes the character test.  That is one of the elements of section 501CA(4).  But the second element is whether there is another reason why the Minister should revoke the decision.

Now, that textual difference between 501CA and 501 we say is significant and we say the Full Court below certainly was not required to follow Le because it simply was not even on point, but was correct to distinguish it, and their Honours did that at paragraph 94, their Honours Justices Bromberg and Mortimer, and we say they were right to do so.  There is no tension between the decision in this case about a completely different provision and the decision in Le about section 501.  Unless the Court has any further questions, those are the submissions.

BELL J:   Thank you, Ms Walker.  Mr Horan.

MR HORAN:   Just three or four brief points.  In relation to the scope of the concession, it is true that it is common ground that a visa can be refused on non‑protection criteria or character grounds, but that does not mean, and it was not conceded, that protection claims will not be assessed before doing so, and we say that the position was correctly summarised by Justice Davies at paragraph 128 at page 200 of the application book that:

In the circumstances, the exercise of statutory power would require the Minister to consider Australia’s protection obligations to the [respondent], notwithstanding that the [respondent] may nevertheless be refused a protection visa on character grounds –

So, to say that there are other criteria that could permit refusal is not to say that the protection claims would not be assessed.  One of the areas in the majority’s judgment which we have outlined in our written submissions is the failure to take account of the discretion that comes in to the application of character grounds in the protection visa context under public interest criterion 4001(c) and (d) which are not dealt with adequately by the majority, but they explicitly provide that at a protection visa stage, even if a protection visa applicant does not satisfy the character test, there is a discretion whether or not to refuse – so you can satisfy that criterion even if the character test is not passed.

So, at that stage, the Minister or delegate would be required to turn his or her mind to the exercise of the discretion and it would not be possible to refuse on character grounds without at least considering the protection claims.  Just by way of passing, the decision that was made by the delegate

in this case on the protection visa application is an illustration of that because the protection claims were exhaustively considered.

The second point is that the respondent’s argument and the majority’s view gives rise to a strange inconsistency, and that is that it is necessary legally for the Minister to assess and determine non‑refoulement obligations when deciding whether a visa other than a protection visa should be cancelled or refused on character grounds, but the Minister or delegate is not required to assess non‑refoulement obligations or protection claims at all when deciding whether to refuse an application for a protection visa if some other non‑protection criteria or character grounds are not satisfied.

We say why should not the same argument bite at the subsequent stage so that when the decision‑making power is exercised then that is when it is appropriate to consider international non‑refoulement obligations.  The cancellation stage, it is premature to do so, and one can simply deal with the reasons in the manner that the Minister did.

In relation to the factual developments, we say the fact that – that they have no impact upon whether or not special leave should be granted.  The review application is still pending in the Administrative Appeals Tribunal.  Finally, in relation to the basis on which Le was distinguished, we say that that attempt to distinguish Le on the basis that it dealt with decisions under section 501(2) as opposed to revocation decisions under 501CA is illusory and in fact the Full Court’s decision in this case from which the application is brought has since and is being applied to section 501 decisions. 

So it is not an unreal – essentially that point of distinction is belied by the fact that this decision has far‑reaching implications for decision‑making well beyond this particular case and we say, for those reasons, special leave should be granted.  If the Court pleases.

BELL J:   Thank you, Mr Horan. 

In our opinion, this application is not a suitable vehicle for the grant of special leave and there are insufficient prospects in any event that an appeal would succeed to warrant the grant of special leave.  For those reasons special leave is refused with costs. 

Adjourn the Court to 9.30 am on Tuesday, 5 December in Canberra.

AT 11.56 AM THE MATTER WAS CONCLUDED