Plaintiff M1/2021 v Minister for Home Affairs

Case [2022] HCA 17

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

PLAINTIFF M1/2021  PLAINTIFF

AND

MINISTER FOR HOME AFFAIRS  DEFENDANT

Plaintiff M1/2021 v Minister for Home Affairs

[2022] HCA 17

Date of Hearing: 30 November 2021
Date of Judgment: 11 May 2022

M1/2021

ORDER

The questions of law stated for the opinion of the Full Court in the Special Case filed on 28 April 2021 be answered as follows:

1. In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?

Answer:

In deciding whether there was "another reason" to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), where the plaintiff remained free to apply for a protection visa under the Migration Act:

(1)the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations;

(2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

(3)to the extent Australia's international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.

2.In making the Non-Revocation Decision:

(a)did the Delegate fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act?

(b) did the Delegate deny the plaintiff procedural fairness?

(c)did the Delegate misunderstand the Migration Act and its operation?

Answer:

(a)No.

(b) No.

(c)No.

3. Is the Non-Revocation Decision affected by jurisdictional error?

Answer:

Does not arise.

4. Should the period of time fixed by s 486A(1) of the Migration Act and rr 25.02.1 and 25.02.2 of the High Court Rules 2004 (Cth) within which to make the Application be extended to 5 January 2021?

Answer:

No.

5. What, if any relief, should be granted?

Answer:

None.

6. Who should pay the costs of, and incidental to, the Special Case?

Answer:

The plaintiff.

Representation

R C Knowles QC and C Mintz for the plaintiff (instructed by Corrs Chambers Westgarth)

C L Lenehan SC with B D Kaplan for the defendant (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Plaintiff M1/2021 v Minister for Home Affairs

Immigration – Visas – Cancellation of visa – Revocation of cancellation – Where plaintiff's visa cancelled…

Continue reading Plaintiff M1/2021 v Minister for Home Affairs

Sign in free to access the full text

Details
AGLC
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Case
[2022] HCA 17
Decision Date

CaseChat Overview and Summary

The plaintiff, a citizen of South Sudan, sought the revocation of his visa cancellation, which had been mandated under section 501(3A) of the *Migration Act 1958* (Cth) following his imprisonment for criminal offences. The plaintiff made representations to the Minister, including claims that his removal from Australia would breach Australia's international non-refoulement obligations, specifically alleging he would face persecution, torture, and death in his home country. A delegate of the Minister decided not to revoke the cancellation, concluding there was no "another reason" to do so under section 501CA(4)(b)(ii) of the Act. The delegate considered it unnecessary to assess the non-refoulement claims, stating they would be fully considered if the plaintiff applied for a protection visa. The case was brought before the High Court of Australia by way of a Special Case.

The central legal issues before the High Court were whether the delegate was required to consider the plaintiff's representations concerning potential breaches of international non-refoulement obligations when deciding whether there was "another reason" to revoke the visa cancellation, whether the delegate failed to exercise the jurisdiction conferred by section 501CA(4), whether procedural fairness was denied, and whether the delegate misunderstood the *Migration Act*. The Court was also asked to consider whether the decision was affected by jurisdictional error and whether an extension of time for the application should be granted.

The High Court, in answering the questions posed in the Special Case, determined that while the delegate was required to read, identify, understand, and evaluate the plaintiff's representations regarding non-refoulement obligations, Australia's international non-refoulement obligations, as unenacted domestic law, were not a mandatory relevant consideration. The Court also held that it was open for the delegate to defer the assessment of these obligations on the basis that the plaintiff could apply for a protection visa. Consequently, the Court found that the delegate did not fail to exercise jurisdiction, deny procedural fairness, or misunderstand the *Migration Act*. The Court also determined that the Non-Revocation Decision was not affected by jurisdictional error and declined to extend the time for the application.

The Court ordered that the questions of law be answered as stated, with the plaintiff to pay the costs of the Special Case. However, in a dissenting opinion, one judge argued that the delegate's approach was not a legally reasonable consideration of the plaintiff's representations as a whole, particularly the claims of persecution, torture, and death, and that the plaintiff was entitled to have these representations reasonably considered. This dissenting view highlighted the potential for the delegate's decision to have been different had these grave claims been properly engaged with.

Orders

Orders of the court

The questions of law stated for the opinion of the Full Court in the Special Case filed on 28 April 2021 be answered as follows:

1. In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?

Answer:

In deciding whether there was "another reason" to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), where the plaintiff remained free to apply for a protection visa under the Migration Act:

(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations;

(2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

(3) to the extent Australia's international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.

2. In making the Non-Revocation Decision:

(a) did the Delegate fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act?

(b) did the Delegate deny the plaintiff procedural fairness?

(c) did the Delegate misunderstand the Migration Act and its operation?

Answer:

(a) No.

(b) No.

(c) No.

3. Is the Non-Revocation Decision affected by jurisdictional error?

Answer:

Does not arise.

4. Should the period of time fixed by s 486A(1) of the Migration Act and rr 25.02.1 and 25.02.2 of the High Court Rules 2004 (Cth) within which to make the Application be extended to 5 January 2021?

Answer:

No.

5. What, if any relief, should be granted?

Answer:

None.

6. Who should pay the costs of, and incidental to, the Special Case?

Answer:

The plaintiff.

Background

Background to the litigation

For the reasons below, I respectfully dissent. The approach of the delegate was not a legally reasonable consideration of the plaintiff's representations as a whole. The plaintiff was entitled to have reasonable consideration given to his representations that he would be persecuted, tortured, and killed. This entitlement follows not merely as a matter of principle, based upon considerations of dignity and humanity, but also as a matter of authority. The entitlement is consistent with a long line of authority in the Federal Court, including the Full Court of the Federal Court. The Federal Court now has vast expertise and refined knowledge in the field of migration law. In relation to issues of interpretation and application of the terms and meaning of the Migration Act, which for decades now has seen refinement upon refinement by both the courts and Parliament, this Court should pause for serious thought before concluding that such a large swathe of decisions of the Federal Court should be overturned.Background The plaintiff is a citizen of the Republic of South Sudan. In 2006, at the age of 19, the plaintiff, together with other members of his family, entered Australia holding a Refugee and Humanitarian (Class XB) visa, subclass 202 (Global Special Humanitarian) ("Refugee visa"). This class of visa is distinct from a protection visa[80].[80]Migration Act 1958 (Cth), s 35A. On 19 September 2017, the plaintiff was convicted of two counts of unlawful assault and sentenced to an aggregate term of 12 months' imprisonment. The plaintiff had previously been imprisoned on several occasions with the longest term being six months' imprisonment. In September 2018, the plaintiff completed the custodial term of his sentence and was transferred to immigration detention. As a consequence of the plaintiff's sentence of 12 months' imprisonment, a delegate of the Minister cancelled the plaintiff's Refugee visa, as was required by s 501(3A) of the Migration Act. On 27 October 2017, the Minister sent the plaintiff written notice of this decision and, pursuant to s 501CA(3)(b), invited the plaintiff to make representations to the Minister on a Revocation Request Form within 28 days about revocation of the cancellation decision, together with any additional information that the plaintiff wished to provide, including subsequently to the 28‑day period, before a decision about revocation was made. In a Revocation Request Form dated 3 November 2017, with the assistance of another prisoner, the plaintiff made representations to the Minister about revocation of the cancellation decision. Consistently with the Minister's invitation, the plaintiff made further representations, including a number of months later, on 10 May 2018. As the delegate of the Minister explained, the plaintiff's representations could "reasonably be summarised as follows:•He has been in Australia for 12 years.•He has two minor children for who[m] he would like to be a role model and to bring up; he wants to make sure they don't repeat the same mistakes he has made.•His family will be devastated if he is removed.•He will not re‑offend. He is ashamed of his mistakes and he has learn[ed] [that] alcohol is not the effective way to cope with stress. He has done courses and will adopt different strategies to cope with stress.•He will have no direct contact with his former partner, the victim of much of his offending.•He will be killed if he returns to South Sudan because of his ... ethnicity."

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, KEANE, GORDON AND STEWARD JJ GAGELER J EDELMAN J (dissent) GLEESON J
To the extent that the Minister asserted that the plaintiff had not discharged his onus of proof that the unreasonableness of the delegate was material, this submission cannot be maintained. It is impossible to deny the possibility that the result of the delegate's consideration might have been different if the delegate had added to their balancing of the relevant representations the plaintiff's claims of persecution, torture, and death.Conclusion At its simplest, this special case involves little more than asking whether the consideration by the delegate of the whole of the plaintiff's representations was reasonable. In Hands v Minister for Immigration and Border Protection[117], Allsop CJ, speaking of s 501 of the Migration Act, said that, "where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people". The consequences of persecution, torture, and death are the most devastating consequences that could be encountered by a person facing removal from Australia. Even with the usual strict sense in which the standard of reasonableness is applied there is no sense in which it was reasonable for the delegate to decline to engage with the plaintiff's repeated pleas not to expose him to persecution, torture, and death.[117](2018) 267 FCR 628 at 630 [3]. A lengthy extension of time is required for this application, including an extension of 845 days under s 486A of the Migration Act. In the exceptional circumstances of this case, that extension is appropriate for four reasons. First, the merits of the plaintiff's case are strong and the issues are of considerable public importance. Secondly, the substance of the plaintiff's case concerns matters of the gravest import to him. Thirdly, the plaintiff has limited ability to read and write in English and relied heavily upon the assistance of another prisoner in the preparation of his application. In the course of receiving that assistance, a substantial part of the delay, including two years between the application and decision, was caused by the plaintiff applying for a protection visa, which was the course that the delegate's reasons had asserted to be the only manner in which the plaintiff's claims of non‑refoulement could be considered. Fourthly, the Minister did not suggest any specific prejudice would arise from the grant of an extension of time.Answers to the questions stated in the special case Two points should be made about the manner in which the questions in the special case were expressed. First, question 1 was expressed broadly by the plaintiff, no doubt to ensure that it did not confine his submissions concerning the unreasonableness of the delegate's consideration of the plaintiff's representations. Those submissions were not limited to the delegate's failure to engage with Australia's international non‑refoulement obligations but extended also to the failure to engage with the heart of the plaintiff's representations: that removal would result in his persecution, torture, and death. Secondly, as the plaintiff's submissions made clear, question 2b relied upon the concept of "procedural fairness" in a broad, perhaps loose, sense that also encompassed unreasonableness in the process of decision‑making. The answer to that question reflects that extended sense in which procedural fairness was also relied upon.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, KEANE, GORDON AND STEWARD JJ, GAGELER J, GLEESON J

No issue was raised in this Court concerning the operation of s 36(2C)(b)(ii), which neither permits nor requires the Minister to refuse a protection visa where the plaintiff is a refugee under s 36(2)(a). Section 36(2C)(b)(ii) permits refusal only on the ground of complementary protection (s 36(2)(aa)), for essentially the same reasons concerning conviction of a particularly serious crime and being a danger to the Australian community. By contrast, s 36(1C)(b) provides that "[a] criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds ... having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community".The reasonableness condition upon consideration of representations under s 501CA(4) of the Migration Act Under s 501(3A) of the Migration Act, cancellation of a visa is mandatory if the Minister is satisfied that the person has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record, and the person is serving a sentence of imprisonment on a full‑time basis in a custodial institution[81]. The cancellation decision under s 501(3A) can be made by a delegate of the Minister. And the cancellation decision is not subject to rules of natural justice[82].[81]Migration Act, ss 501(3A), 501(6)‑501(7).[82]Migration Act, s 501(5). Upon cancellation of a visa, the person's status is changed from a lawful non‑citizen to an unlawful non‑citizen[83] and, subject to circumstances which include a power to grant a "detainee visa" to the person[84], or the person (whose cancelled visa under s 501(3A) was other than a protection visa) making an application for a protection visa[85], or pending consideration of representations by the person about revocation of the cancellation decision[86], they must be detained in immigration detention and removed from Australia as soon as practicable[87].[83]Migration Act, ss 13‑15.[84]Migration Act, s 195A.[85]Migration Act, ss 501E(1)‑501E(2).[86]Migration Act, s 501CA(4)(a).[87]Migration Act, ss 189, 193(1)(a)(iv), 198(2A). Section 501CA makes provision for revocation of the original cancellation decision under s 501(3A). As soon as practicable after making the cancellation decision, the Minister must give the person a written notice setting out the cancellation decision, and must invite the person to make representations to the Minister about revocation of the decision[88].[88]Migration Act, s 501CA(3). Section 501CA(4) of the Migration Act empowers the Minister to revoke the original decision cancelling a visa. It provides:"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." Under s 501G(1)(e), the Minister is required to provide reasons for a decision not to revoke a decision to cancel a visa.