Plaintiff M1/2021 v Minister for Home Affairs

[2021] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M1 of 2021

B e t w e e n -
PLAINTIFF M1/2021
Plaintiff
and
MINISTER FOR HOME AFFAIRS
Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON TUESDAY, 30 NOVEMBER 2021, AT 10.00 AM

KIEFEL CJ: In accordance with the remote hearing protocol, I will announce the appearances of the parties.

MR R.C. KNOWLES, QC appears with MS C. MINTZ for the plaintiff. (instructed by Corrs Chambers Westgarth)

MR C.L. LENEHAN, SC appears with MR B.D. KAPLAN for the defendant. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Knowles.

MR KNOWLES: Yes, thank you, your Honour. The reception is a little bit patchy just at this point in time. I am not sure whether it is just me or whether…..difficulties but I think we will press on and see how…..

KIEFEL CJ: Yes, it is not good…..

MR KNOWLES: I am not hearing much of what your Honour is saying, I am afraid.

KIEFEL CJ: No. Well, I think we will have to adjourn and see what can be done. The Court will adjourn.

MR KNOWLES: Thank you, your Honour.

AT 10.01 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.10 AM:

KIEFEL CJ: Yes, Mr Knowles.

MR KNOWLES: Thank you, your Honours. This is a matter in which the plaintiff has applied for judicial review of a decision made by a delegate of the defendant, the Minister for Home Affairs, purportedly pursuant to section 501CA of the Migration Act to refuse to revoke an earlier decision to cancel his refugee and humanitarian visa. The plaintiff has filed and served an outline of argument this morning which sets out the structure of the oral submissions that will be given today.

First, we will address the facts and issues in this matter; then we will turn to the proper construction of section 501CA; then we will turn to how, having regard to that proper construction as well as the delegate’s reasons for decision, the delegate erred by failing to consider the plaintiff’s representations about the existence of non‑refoulement obligations owed to him; then we will turn to why those errors are material so as to give rise jurisdictional error; and, finally, we will address why, in the exceptional circumstances of this case, there ought be an extension of time granted to the plaintiff.

The division of oral submissions today between myself and Ms Mintz will be as follows. I will deal with the matters in the oral outline paragraphs 2 to 11. That covers the…..and facts, as well as the proper construction of section 501CA and then the particular errors that arise in the circumstances of this case. Ms Mintz will then turn to the matters that are set out in paragraphs 12 and 13 of the oral outline, in particular the materiality of the errors in this case as well as the extension of time application.

So, if I can proceed then to the facts in this case. There is agreed between the parties – this is set out in the special case – and, as your Honours will have seen, the plaintiff was born in what was then Sudan in 1986. He is a citizen, now, of South Sudan. He was granted a refugee and humanitarian visa on 30 January 2006 and came to Australia that year.

He did so as part of a family group, and his mother was the primary visa applicant. The primary visa criteria in respect of that refugee and humanitarian visa included that the visa applicant is subject to substantial discrimination amounting to gross violation of human rights in the applicant’s home country. Moving forward in time, now 19 September 2017, the plaintiff was convicted in the Magistrates Court …..counts of unlawful assault and sentenced to an aggregate term of imprisonment of 12 months. Subsequently, on 27 October of that year, his visa was cancelled under section 501(3A) of the Migration Act.

He was then invited to make representations about revocation of that cancellation decision, and that invitation, as well as a notification of cancellation, is set out in the letter at pages 80 to 82 of the special case book. If I could just take your Honours there briefly, your Honours will see turning to page 81, at the bottom of page 81, there is a heading:

How to make representations about revocation of the decision to cancel your visa

And under that it said:

If you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form.

Now, in that regard, if I can then take your Honours to that form which was completed on behalf of the plaintiff, and that commences at page 85 in the special case book. Your Honours will see that is a form that apparently, from the header of it, was issued by the Department of Immigration and Border Protection and is headed “Request for revocation of a mandatory visa cancellation under S501(3A)”. Just before the table, and the heading “Personal Details”, your Honours will see there that it states:

If you wish to request revocation of your visa cancellation please complete all parts of this request form, as well as the ‘Personal Details Form’, which was attached to your notice of cancellation.

I will come to that in a moment. If one goes to the top of the next page, page 86 of the special case book…..the plaintiff formally makes the:

request that the Minister . . . revoke the mandatory cancellation of [his] visa under s501(3A) of the Migration Act ‑

On page 87, that is where a person sets out their reasons for seeking revocation. In the box on that page, your Honours will see that there is a reference to an attachment and that attachment is the aforementioned personal circumstances or personal details form which one finds commencing at page 90 of the special case book. Again, your Honours will see that that is a form that has been issued by the Department of Immigration and Border Protection and under the heading, it says:

This form asks for information that is important to the Minister or delegate making a decision about possible cancellation of your visa or revocation of a decision to cancel your visa.

Now, in the form, the plaintiff set out representations as to revocation of the cancellation of his visa, including various representations of…..serious harm and even death in the event of any return to South Sudan.

If I first take your Honours to page 99 of the special case book, which is…..and at the bottom of that page the question is posed:

Do you have any concerns or fears about what would happen to you on return to your country of citizenship?

And the box next to that is ticked “Yes”. Then, there is a reference to an attachment. That attachment appears to be the document which one then finds at page 101 of the special case book. As one can see, there is a heading on that page “Attachment/s to Questions” and then “Reasons for Revocation”. There the plaintiff stated:

I believe that we arrived in Australia on a “protection visa”, but have been unable to confirm what type of visa a “class XB subclass 202 Global Special Humanitarian visa” is.

Then, in the next paragraph:

We left South Sudan as refugees because as citizens of the Denka tribe we were being hunted by the much larger and more powerful Nual tribe, and because my father was amongst the first of us to be killed we had no protection whatsoever.
The Nual, already a brutal people, are now the majority tribe in that region, and as such has political and military dominance, which makes it very dangerous to be a Denka tribesperson in South Sudan. Despite having left South Sudan as a child, the tribe I was born into will still be the primary defining characteristic that I’d be judged by, and forcing me to return without any political or military alliances, affiliations or aspirations is exactly the same as sentencing me to death.

Then the plaintiff goes on to say:

To further complicate the matter I understand that more recently ISIS has been active in the region, having aligned many of its local interests with the Nual in its efforts to gain further support, and in doing so has decimated much of my homeland, and most of my people.

Then further down your Honours will see in the second paragraph beside the section number 2 at the end of that paragraph the plaintiff states:

I’ve little doubt that sending me to a premature death would leave my entire family devastated.

That submission is repeated at page 106 of the special case book and similar submissions are made throughout. For instance, at the bottom of page 96 of the special case book one sees the plaintiff stating:

I’ve no doubt that sending me to a premature death would no doubt leave my entire family devastated.

At page 97 he refers to the circumstances that led to him and his family leaving Sudan, and at page 98 he says at the bottom of the page in terms of the hardship that removal might cause to members of the Australian community – this is right at the bottom of page 98:

Sending me back to South Sudan is sentencing me to the same fate as my father ‑

At page 100 at the top of the page the question is posed:

Are there any other problems you would face if you have to return to your country of citizenship?

And he answers:

Yes, I might be tortured before being killed by the Nual or ISIS in an attempt to extract any possibly useful information I might have. They won’t know I know nothing of use to them until after they’ve tortured me, but I fear that ISIS might try to use my capture to pressure my family in Australia, either for money, or maybe for something much worse.

Then similar sentiments are expressed in terms of what appears further down on page 100 in the first paragraph, beginning with the words, “I’m ashamed”. Likewise, finally, at page 104 – again, in response to the question about concerns or fears about what would happen to him on return to South Sudan – the first paragraph states:

I will either get killed, or persecuted then killed, or tortured then killed. As a citizen of the Denka tribe I will [be] hunted by the much larger and more powerful Nual tribe, the result of an ongoing feud that has been going on for generations.

There are other passages in this document but, by and large, they are repetitive of these matters that I have already…..

There were further representations made by the plaintiff to the Minister in respect of revocation and one of those is contained at page 116 of the special case book. That is the handwritten letter that one sees there dated 10 May 2018 but bearing a fax transmission date of 11 May 2018. Your Honours will see there that the plaintiff stated:

I’m very concerned. Not only have I been doing everything I can to better myself, and have been keeping the Dept of Immigration updated every time I’ve completed another course, but due to “non‑refoulment obligations”, I didn’t think it was possible to force me back to South Sudan –

He then goes on to say:

I spoke to my mother last night, and she tells me that the situation in regards to my tribe, Dinka, remains fundamentally unchanged to the killing since we fled there just over 20 years ago. I’m stressed about the idea of never seeing my children again, or the rest of my family either, and I’m outright scared about the prospect of being forced back to South Sudan. I had to leave there, along with the rest of my family, because our lives were in danger, and I don’t understand why you would want to send me to my death?

So, the representation ‑ ‑ ‑

STEWARD J: Mr Knowles, in relation to that last letter, is that a representation the Minister could validly have regard to, given that it was sent after the 28‑day period?

MR KNOWLES: Yes, it is, in the sense that once one has passed through the gateway of having made some representations within the 28‑day period, it is then open to provide further details of those representations and that is precisely what has occurred here. We would say, also, it is open to provide further representations provided that there has been compliance with making some representations in the 28‑day period. But, even if that were not so, we would say that these augment what was expressly stated, or plainly implicit, in the representations that were made within the 28‑day period.

So, we say that the representations included that, if his visa remained cancelled and he were removed to South Sudan, any such removal would expose him to serious harm, even death, on account of his race and his membership of a particular social group and that that would contravene international non‑refoulement obligations, and further, that those representations went to another reason why the cancellation decision should be revoked.

They were not representations that were insubstantial in any way or unparticularised. They went to who would harm him and why. He explained how he and his family had previously fled Sudan, the circumstances that led to them doing so, and he stated that those circumstances had not changed. In addition, he referred to a new fear of harm from ISIS on the basis that ISIS have aligned with the Nual tribe and were therefore…..people of Denka…..so we say not in any way irrelevant to the task…..

MR LENEHAN: I do apologise to interrupt ‑ ‑ ‑

KIEFEL CJ: Yes, Mr Lenehan.

MR LENEHAN: We are having some difficulty, Mr Knowles ‑ ‑ ‑

KIEFEL CJ: Yes. Mr Knowles, reception is becoming quite patchy. I thought for a moment it might just be that you were turning your head to the side when you were reading from the special case book but now when you are facing us the problem, if anything, is getting worse. I think we will have to adjourn again. The Court will adjourn.

AT 10.26 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.41 AM:

KIEFEL CJ: Yes, Mr Knowles.

MR KNOWLES: Thank you, your Honours, for your forbearance. I am hopeful that we will not have the same difficulties. I think it might have had something to do with my blurring of my background. I am hopeful that will remedy the problem.

Now, I was about to take the Court to the decision of the delegate not to revoke the visa cancellation and that commences in the special case book at page 118, and it was not in dispute before the delegate that the plaintiff had been sentenced to the aggregate term of 12 months’ imprisonment that I mentioned earlier, and, as such, the delegate was not satisfied that the plaintiff passed the character test.

The delegate referred to the representations and asserted at various point that they had been considered, and an example of that can be found at page 120 of the special case book, and in particular paragraphs 11 to 12. And at paragraph 11 one can see that there is a summary of the revocation request and supporting submissions. There is no express reference there to any claimed existence of non‑refoulment obligations, but it is arguably at least acknowledged in the last dash point in paragraph 11.

Then at paragraph 12 one sees a general catch‑all assertion of consideration of representations. What then follows is the delegate’s referral to the three primary considerations and the various other considerations that were the subject of what was then Direction No. 65 issued by the Minister under section 419 of the Migration Act. The other considerations first come up at page 125 of the special case book and at paragraphs 46 to 50 the delegate refers to representations about existence of “international non‑refoulement obligations” claimed by the plaintiff to be owed to him, and the prospect of serious harm or even death confronting him on any removal to South Sudan.

The relevant subject matter plainly, we would say, went to the existence of international non‑refoulement obligations. So much is clear from the heading and otherwise to various references in the four paragraphs to the international non‑refoulement obligations. For instance, at paragraph 46 the delegate observed that the plaintiff’s circumstances “may give rise to international non‑refoulement obligations”, and at 47 the delegate noted the representations as to the reasons for the claimed existence of those non‑refoulement obligations. Then at 48 one sees what is really the critical paragraph of the delegate’s reasonings for the purposes, we say, of this case and that is where the delegate said “I consider that” ‑ ‑ ‑

STEWARD J: Mr Knowles, I am sorry, I hope you can hear me.

MR KNOWLES: Yes, I can.

STEWARD J: Where they refer to international non‑refoulement obligations, a critical issue for decision is whether that is a reference to treaty commitments or whether that is a reference to the domestic enactment of those obligations. From my memory, Direction 65 says that where relevant decision‑makers should follow the tests in the Act. So, there is a question of whether, having regard to – if my memory is correct about Direction 65, is whether this is a reference to Australia’s domestic enactment of our international non‑refoulement obligations or whether this is a reference not to section 36(2)(a), but to treaty commitments.

MR KNOWLES: Yes, your Honour is correct. That appears relevantly in Direction No. 65 which I believe has been provided to the Court at paragraph 14.1(1) and in the direction that appears at page 19. Your Honour is correct that there is a reference to the various international treaty obligations in that first subparagraph in paragraph 14.1, but there is also of course in the heading the words “International non‑refoulement obligations”, but at the end of that paragraph – and this is perhaps what your Honour might be referring to – it states:

The Act reflects Australia’s interpretation of those obligations and, where relevant, decision‑makers should follow the tests enunciated in the Act.

There is a couple of points that we would make there. It is not entirely clear what is meant at the end of that first subparagraph because, while under the Act there is a reference to protection obligations for the purposes of section 36(2) and the alternative various criteria that one sees in section 36(2), there is also a definition of the term “non‑refoulement obligations” in the Act as well, so it actually picks up the term “non‑refoulement obligations” and defines it by reference to international treaties.

One sees that in section 5 of the definition provision of the Act and the definition of “non‑refoulement obligations” refers to those various international treaties, not just the Refugees Convention, but also the covenant which is defined as the International Covenant on Civil and Political Rights, as well as the Convention Against Torture, as well as more generally the international law…..which give rise to obligations of non‑refoulement obligations. So, the definition of that term for the purposes of the Act is very much, we would say, in accordance with those international law treaties, conventions and the like.

The other point that we would make is that, whatever might be said here, one needs to deal with the representations as made and the representations as made went to non‑refoulement obligations, not protection obligations under the Act for the purpose of section 36(2), that is for the purposes of the relevant visa criterion that needed to be satisfied in order for a person to be granted a protection visa. Paragraph 48 states:

I consider that it is unnecessary to determine whether non‑refoulement obligations are owed in respect of –

the plaintiff:

for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non‑refoulement obligations would be fully considered in the course of processing that application.

Then in paragraph 49, after describing how that protection visa application process would work and the order in which various matters would be considered and that the protection obligation matters would be considered first before other matters such as eligibility criteria relating to the risk posed to the Australian community as such, if I can use that shorthand expression, at the end of paragraph 49 the delegate stated:

I am therefore confident that ‑

the plaintiff:

would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

We would say that what these passages show is that the delegate expressly declined to consider the plaintiff’s representation that he was owed non‑refoulement obligations and did so on the basis that protection obligations would be the subject of consideration in any future protection visa application if it were to be made. Obviously at this time there had not been such an application for a protection visa, and it could not necessarily be known as to whether one would be made.

Then the last paragraph in this passage that is of some significance for present purposes is that of paragraph 50 and there the delegate indicated a preparedness to consider the plaintiff’s claims of harm, albeit outside the concept of non‑refoulement and the international obligations framework. So, there was an express exclusion of consideration of any claims of harm which your Honours will recall rose to the level of torture and death and an express exclusion of consideration of those claims within the context of international non‑refoulement obligations. The delegate then went on to say:

I accept that regardless of whether –

the plaintiff’s:

claims are such as to engage non‑refoulement obligations ‑

the plaintiff:

would face hardship arising from tribal conflicts were he to return to Sudan.

Now, that generalised reference to hardship does not grapple at all, we would say, with the relevant claims that are made in the context of non‑refoulement obligations which go to matters as serious as serious harm, persecution, death or torture.

Now, having referred to these representations, and also having referred to other representations ‑ ‑ ‑

EDELMAN J: Mr Knowles, could I just ask you precisely what your submission is about the omission from the delegate’s reasons? Is it a submission that, absent paragraphs 48 and 49, and performing what you say is the proper task, the delegate would have gone on to consider additional facts relating to the claims of harm such as the possibility of death or the likelihood of death, and so on, or is it a submission that paragraph 50 recognises all of the factual matters that the applicant has raised but just refuses to look at those factual matters in the light of any international obligations that might be owed, or is it both?

MR KNOWLES: I think it is both, your Honour, in the sense that the – firstly, the representations – we would way there was not necessarily a specific requirement to consider the representations by reference to a final determination as to the existence or otherwise of non‑refoulement obligations, but there had to be consideration of the existence or otherwise of non‑refoulement obligations in…..as it would be brought to bear…..as to whether or not there was another reason for which the cancellation should be revoked and that includes the existence of those non‑refoulement obligations of themselves, it includes matters going – it could include, we should say, matters going to the precise claims or basis upon which it is put.

It might be that it could have been addressed – it was not – but it could have been addressed by saying, well I accept that there might be non‑refoulement obligations and I will weigh the possibility of those non‑refoulement obligations in the balance in reaching my conclusion about whether or not there was another reason as to revocation of visa cancellation and so just merely the possibility was brought to bear on reaching the conclusion as to satisfaction in respect of the existence of another reason to revoke the visa cancellation. So, we would say ‑ ‑ ‑

EDELMAN J: I understand the submission about leaving out of account the notion of international obligations. The other aspect that I am still grappling with in your submission is whether you say that, for example, the final sentence of paragraph 47, is a matter that was taken out of the account but, because of the unwillingness to consider international non‑refoulement obligations, or whether – on what might be a more natural reading of paragraph 50 – the reference to “claims of harm” includes the references to sending him back “to a premature death”.

MR KNOWLES: That is one reading. We would say that one needs to read the decision as a whole and, when one does that, one looks to the ultimate conclusion of the delegate and the conclusion – not only does it not refer at all to the existence, or otherwise, of non‑refoulement obligations, it actually does not even refer to the findings of hardship or harm which, we would say, are wrapped up in that.

But, nonetheless, even if the hardship were taken into account and went to the factual matters underpinning any non‑refoulement obligations, it does not follow that the representations, as the existence of non‑refoulement obligations, were considered in the requisite circumstance and considered for purposes of state of satisfaction in relation to another reason to revoke the visa cancellation. So, the answer is ‑ ‑ ‑

STEWARD J: Mr Knowles, can I ask, is it your case that when a non‑refoulement claim is made that 501CA(4) mandates that the way in which it must be considered is an inquiry, in some way, into the merits of the claim and if that is the case, why? Why is that mandated as the way by which you consider the claim or take it into account?

MR KNOWLES: We say that that is what consideration requires in terms of an active intellectual engagement with any representation of that nature, firstly, having regard to authorities such as Tickner v Chapman. But we would also say that it could be done in a variety of ways but it has to be done such that the existence, or otherwise, is brought to bear in reaching a state of satisfaction as to any other reason – another reason – for revocation of visa cancellation and that when I come to the conclusion in a moment of the delegate’s decision one would see simply did not occur here.

GLEESON J: Mr Knowles, what about section 499(2A) which requires compliance with a direction like Direction 65? Is that relevant to the question that Justice Steward asked about whether or not there is, actually, an obligation to consider this?

MR KNOWLES: It would be relevant if the direction is not contrary to the Act and we would say that insofar as…..and that is, I think, made clear from subsection (2), your Honour, where it said:

Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

So, to the extent that the direction might in some way contravene the requirement for there to be consideration of representations made in accordance with section 501CA, insofar as it constrains what is otherwise required by the Act and is contrary to it, we would say, to that extent at least, it is invalid.

GLEESON J: Is there any part of the direction that you would accept ‑ ‑ ‑

KIEFEL CJ: I am sorry, Justice Gleeson, you have not finished your question.

GLEESON J: I am sorry, Chief Justice. I was wanting to ask Mr Knowles whether there is any aspect of the direction which you accept is not valid that is relevant to this particular set of representations?

MR KNOWLES: Any part of the direction that is not valid? Yes, we would say the part that indicates – that goes to – differentiates between the circumstances in which the ability…..to making a protection visa application, that part and that is perhaps what is enshrined ‑ ‑ ‑

KIEFEL CJ: Mr Knowles, I think you might have to repeat that, it came out a little garbled.

MR KNOWLES: I am sorry ‑ ‑ ‑

KIEFEL CJ: Which part of the direction do you say is not valid?

MR KNOWLES: The part that differentiates between circumstances in which claims for non‑refoulement obligations are raised and the visa cancelled was a protection visa, on the one hand, and differentiates that situation from where the visa cancelled was not a protection visa and there is still recourse to making a protection visa application. And, in particular, it is subparagraph (4) and what follows from it.

So, subparagraph (4) basically says that where there is an ability to make such a protection visa application:

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.

And then paragraph (5) says:

If, however, the visa that was cancelled was a Protection visa –

and goes on to say, well it can be considered, and we would say that is an unlawful restraint on the terms of section 501CA insofar as it refers to representations at large.

We would say that the appropriate course is what is set out in paragraph (6) insofar as – perhaps if one takes up the words “In these circumstances” at the start of that paragraph:

decision‑makers should seek an assessment of Australia’s international treaty obligations –

or at least undertake some assessment of their own in order to bring that representation, if it be made, to account, in reaching the requisite state of satisfaction.

The only other observation I would make as to how this direction, at the time of this decision, did not reflect the law in the Migration Act is that the direction refers to a policy that a person would not be removed, not be returned, to their country of origin, and that appears at the end of subparagraph (6) for instance, and observes that, as a result of that, the person:

would face the prospect of indefinite immigration detention.

Well, that might have been so on that policy, if it were adhered to at the relevant time, but we would say that the terms of section 197C, which has been amended in May of this year, but the terms of that provision as at the time of the decision being made in this case were such that removal was a real…..as a consequence of…..the cancellation, given that removal has to occur “as soon as reasonably practicable” under section 198 of the Migration Act.

If I can now turn to the conclusion of the delegate’s decision and this is where the delegate does bring to account all of the various matters that have been considered for the purposes of considering whether or not there is another reason why the original decision to cancel should be revoked, and particularly from paragraph 63 onwards one sees where that occurs. At paragraphs 63 and 64, the delegate has taken into account and referred to the protection of the Australian community.

At paragraph 65 the delegate has referred to the expectations of the Australian community and evidently from those paragraphs and their terms one can see that the delegate has regarded them as weighing against revocation of visa cancellation. For instance, in paragraph 63, the delegate observes that “significant weight” is given “to the serious nature of the crimes committed by” the plaintiff.

Then after those paragraphs one sees at paragraph 66 the delegate considering the best interests or taking into account the best interests of the plaintiff’s children as a primary consideration and finding that that weighed in favour of revocation. There is a reference also to other considerations at paragraph 67, such as the plaintiff’s ties to the Australian community, him having lived here for over 12 years:

his contribution to the Australian community and the consequences of [the] decision for his immediate family in Australia.

Those considerations at paragraphs 66 and 67 one can see the delegate appears to have regarded as favouring revocation. Then at 68 one sees the balancing exercise that leads to the conclusion reached by the delegate and in particular, where the delegate says:

I conclude . . . the protection of the Australian community outweighs the best interests of his children as a primary consideration, and other countervailing considerations as described above.

In the context of how this appears in the conclusion, we would say that those countervailing considerations described above can only mean those that appear in paragraph 67 in the immediately preceding paragraph. On that reading, one can see that there is no mention in the conclusion of non‑refoulement obligations or even, picking up a point that was raised by your Honour Justice Edelman earlier, or even harm to the plaintiff or hardship on any removal to South Sudan.

So, this reading of the conclusion demonstrates that non‑refoulement obligations were neither considered nor weighed in arriving at the state of satisfaction as to the existence or otherwise of another reason why the original decision to cancel the plaintiff’s refugee humanitarian visa should be revoked.

Now, the only other matter that is pertinent to the facts of this case is that, about a month after this, the plaintiff applied – in September 2018 – for a protection visa, and about two years after that, that application was refused. The decision record in respect of the refusal of the protection visa application begins at page 127 of the special case book.

In a nutshell, if I can summarise the outcome, the delegate there – another delegate of the Minister – found that Australia did owe protection obligations to the plaintiff, under section 36(2) of the Migration Act, but despite finding that the applicant met those relevant criteria, the criterion in subsection 36(2)(a), the delegate also found that the plaintiff did not satisfy other criteria for the grant of the protection visa, in particular the criterion in subsection 36(1C) ‑ ‑ ‑

KIEFEL CJ: Mr Knowles, you are breaking up a little bit. Could I suggest – I know this is difficult – but could I suggest that you speak a little slower? I think your equipment is not quite keeping up with you.

MR KNOWLES: Yes, I am happy to do that. Thank you, your Honour, and apologies. So, if one goes to the last page of the decision, at page 176 of the special case book, under the heading “Part 8: Conclusions”, one sees what was found in terms of the relevant criteria. The delegate was:

satisfied on the evidence before me, that the applicant would face a real chance of suffering serious harm amounting to persecution [in] South Sudan in the foreseeable future.

And also found that:

he would face a real risk of significant harm throughout South Sudan.

They are the two paragraphs of 36(2), being paragraphs (a) and (aa). Then the delegate goes to say:

Notwithstanding the above, I have also found the applicant is affected by the ineligibility provisions of the Act set out in s 36(1C)(b), or s 36(2C)(b)(ii) of the Act.

Now, the first of those is a criterion, if not met, means that the visa cannot be granted. The second of those, subsection (2C)(b)(ii), that goes to the complementary protection obligation criterion in paragraph (2)(aa) of section 36 which I will come back to in due course, but essentially, if the circumstances in 36(2C)(b)(ii) exist, then one does not meet the criterion in 36(2)(aa).

They are the facts that are relevant here. In terms of the issues, there are really two key issues in this case. The first is whether or not the reasoning that I took your Honours to earlier at paragraphs 46 to 48 discloses error. In particular, was the delegate required to consider the plaintiff’s representations on the existence of non‑refoulement obligations, whether that be as a necessary condition on the valid exercise of power under section 501CA, or as an incident of affording him procedural fairness and, if so, did the delegate fail to comply with that requirement to consider in the relevant sense those representations, and otherwise do the delegate’s reasons disclose error by misunderstanding the power exercisable under section 501CA? Now, all of those questions, it is submitted, should be answered yes. That is the first issue.

The second issue is, if there was a failure to comply with that requirement, was it material to the delegate’s decision so as to give rise to jurisdictional error? Again, we would say yes. I will be dealing with that first issue, being the errors affecting the delegate’s decision and, as I said earlier, Ms Mintz will deal with the second issue, being the materiality of those errors as well as the extension of time.

Before I proceed further I should say – and it is important to observe this – that contrary to what might otherwise be thought having regard to the Minister’s submissions in this case, it is not part of the plaintiff’s case that international non‑refoulement obligations are a mandatory relevant consideration for decision‑making in section 501CA(4), and it has not been such either. Insofar as…..in the Minister’s.....false premise and, as should be clear, the plaintiff’s case rests on the centrality of representations in the scheme of section 501CA.

Further, it is not said by the Minister in this case that non‑refoulement obligations could never be taken into account as going to another reason to revoke visa cancellation. That is not said in every case…..are an irrelevant consideration to the exercise of power under section 501CA(4). In fact, it is accepted by the Minister that, given the breadth of the phrase “another reason” in section 501CA, non‑refoulement obligations may be a permissive consideration for the purposes of decision‑making under that provision, and that is clear from footnote 20 of the defendant’s written submissions.

KIEFEL CJ: Mr Knowles, when you refer to the representations, are you referring to the representations as a whole or to each individual representation as requiring consideration?

MR KNOWLES: We are referring to substantial, clearly articulated representations in accordance with what has been held, on a number of occasions, in the Full Federal Court. So, we are referring to individual representations ‑ ‑ ‑

KIEFEL CJ: I think it has also been held in the Federal Court that it is the representations as a whole.

MR KNOWLES: That is right, yes, indeed. What has been held, in that regard, is that the representations…..but a failure to have regard to a substantial, clearly articulated representation going to a specific matter is a failure to conform to the task required by section 501CA. So, I think the distinction, for our purposes in terms of the way that we put our case, is that if one is talking about mandatory relevant considerations, yes, the authorities go to the representations as a whole, being a mandatory relevant consideration.

But, if one is talking about a ground of review based on a failure to conform with the statutory task, then it is a different situation, namely, that a failure to have regard to and consider in an active…..way that engages with the matter, a failure to have regard to a substantial clearly articulated representation is a failure to exercise the power in accordance with the task that is dictated by the terms of section 501CA. We also say, obviously, that it is a failure to afford procedural fairness in the circumstances of this case, having regard to ‑ ‑ ‑

KIEFEL CJ: I see the time, Mr Knowles. This might be a convenient time for the Court to take its morning break.

MR KNOWLES: Yes, thank you, your Honours.

AT 11:17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

KIEFEL CJ: Yes, Mr Knowles.

MR KNOWLES: Thank you, your Honour. I think I had just got to the point of saying that it had been accepted in the Minister’s submissions that the breadth of the phrase “another reason” in section 501CA, that means that non‑refoulement obligations may be a permissive consideration for the purposes of decision‑making under that provision. It does not follow, however, that failure to have regard to permissive consideration cannot give rise to jurisdictional error in the statutory and factual context of this particular case. If I can turn now to the relevant provisions in the statutory scheme which your Honours will find ‑ ‑ ‑

EDELMAN J: Mr Knowles, just before you do, could I just understand your submission as to whether it is really one that just depends upon the circumstances of the case or whether it is one from which one might discern a broader underlying principle. As I understand it, you start with the point that it is not your case that one needs to identify all particular considerations as mandatory relevant considerations or not, but that section 501CA(4) does impliedly require consideration of all representations as a whole and that it follows from that – so, the requirement for consideration of representations as a whole is an implication of process and that one might say that that implication of process attaches the ordinary qualification that the process be exercised in a reasonable way. So there one might then conclude that the reasonableness of considering all of the representations as a whole will then depend on all of the circumstances as to whether or not the omission of some…..is reasonable or not.

MR KNOWLES: Yes, we would accept that, and we also obviously – perhaps from what your Honour has said, there is really a combination of general principle in some respects, but then consideration of that in a particular context of a given case of course as to what particular representations are made. But insofar as your Honour makes those points in respect of process, which is reflected in our arguments I would say as to the statutory task as well as our arguments in respect of implication of procedural fairness, we would respectfully agree with your Honour on that score.

GLEESON J: Mr Knowles, can I add - Mr Knowles, can you hear me?

MR KNOWLES: I can, thank you, your Honour.

GLEESON J: Just following on from Justice Edelman’s question…..in Direction 65 where the decision‑maker is told that certain matters must be taken into account. As I understand it an example is in paragraph 14 of the directions, but there are numerous points where the direction speaks in mandatory language. But, as I understand your position, the mandatory force of that goes no higher than what is required as a result of the language of 501CA…..

MR KNOWLES: That is correct, yes, that is right. Yes, 501CA in respect of paragraph 14.1. But there are analogous paragraphs in preceding parts of the direction that go to other – if I can call them – character‑based powers under the Act, such as section 501, for instance.

GLEESON J: Thank you.

EDELMAN J: So that means that the more mandatory, or the more important, or the more emphasis in the direction, about a particular requirement, combined with the more relevant it is to the circumstances of the case, the less likely it may be that discarding those matters would be reasonable.

MR KNOWLES: Yes, we would accept that, absolutely, your Honour. Certainly, we would say, in this case what the direction shows is a cognisance of certain matters and a requirement as to the taking consideration of certain matters. But one of the things that we would say in respect of materiality as such is that there was an awareness – perhaps even incorrectly having regard to the terms of section 197C as at the time of the decision – but an awareness of the prospect of indefinite immigration detention following from a decision not to revoke and a need to weigh that in the balance. That is a matter that we say goes to materiality in the sense that there is this awareness of other matters that could be brought to bear if one were to find that non‑refoulement obligations did exist in considering a representation to that end.

The relevant provisions are contained in the joint book of authorities under tab 3. I am hopeful that when I refer to various parts of the book of authorities, they will be readily able to be brought to hand by your Honours, but the relevant pages are pages 93 and following, insofar as my immediate submissions proceed.

At page 93, your Honours will see section 501. These, we say in our submissions, are a structured, sequential process to the way in which section 501 is set out. One first finds, in the first three subsections of the provision, powers that are discretionary – that the Minister may refuse or may cancel a visa on the grounds of an inability to satisfy the character test. What one then sees after that is in subsection (3A) – particular circumstances in which the cancellation…..is mandatory. There must be a decision to cancel a person’s visa.

Now, obviously, that connotes an absence of any discretion on the part of the decision‑maker, and one will also see that there is an absence of any entitlement to an opportunity to be heard in respect of the exercise of that power, as is indicated from subsection (5), which observes that:

The rules of natural justice . . . do not apply to a decision under subsection –

relevantly here:

(3A).

Now, where there is an opportunity to be heard arises in the context of the ability to request revocation pursuant to section 501CA, which commences at page 100 of the joint book of authorities. It is important to observe a number of aspects of that particular provision that we say are significant for the purposes of the case that is put before your Honours today.

First, this is the only opportunity that a person has to be heard on revocation of cancellation of the visa and it is the only opportunity they have in respect of whether or not that cancellation ought to have occurred. So, it is after the fact of the cancellation and, in that sense, we contend that plainly the purpose of this provision is remedial and beneficial in nature.

The power – and I should say, one sees in subsection (3) the requirement to give notice of the cancellation decision – in paragraph (a), and then in paragraph (b) the requirement for the person to be invited to make representations to the Minister about revocation of the original decision to cancel the visa.

So, there is this significance immediately as to representations that is then highlighted when one has regard to the decision-making power in subsection (4), where the power to revoke the original decision is enlivened in the event of two matters having occurred, firstly that there is the making of representations at all – so there is this critical point going to the representations that your Honour Justice Edelman mentioned earlier, as a whole – that they need to be considered – and then, in respect of that, the second aspect is that there is satisfaction, relevantly here:

that there is another reason why the original decision should be revoked.

There is an interconnectedness, we would say, between firstly the representations in paragraph (a) and the state of satisfaction in paragraph (b). We would say that what that interconnectedness goes to is that in exercising the power under subsection (4), there must in fact be consideration of the representations – because if that were not so, then the point of giving a person an opportunity to make those representations would serve little or no practical effect and it is improbable that the framers of the legislation would have intended to insert a provision if it were the case that it had little or no practical effect.

In essence, what one sees in the text of subsection (4) is that it confirms that there is an obligation to afford a person an opportunity to be heard through their representations and that was also confirmed, one can see, extrinsic materials that introduced section 501 in 2014. Those extrinsic materials, your Honours, are at tab 65 of the joint book of authorities and I do not propose to go to them in any detail, save to say that at paragraph 92 they state, in respect of section 501CA:

The requirement to give notice to the person and invite the person to make representations about revocation of the decision to cancel allows the person the opportunity to satisfy the Minister or delegate that the person passes the character test, or that there is another reason why the original decision should be revoked.

If the provision were construed in such a way as to permit the Minister to refuse to consider a person’s representations, then the person would not have that real opportunity to satisfy the Minister of the matters set out in paragraph (b) of subsection (4) of the provision.

To construe the provision otherwise, to construe it in a way where the Minister could put those representations to one side and not consider them, would effectively render that entitlement to make the representations in the first place inutile. In this statutory context…..on the exercise of the power in subsection 501CA ‑ ‑ ‑

KIEFEL CJ: Mr Knowles, I am afraid you will have to repeat that submission. It could not be heard clearly at all.

MR KNOWLES: Pardon me, your Honour. So, in this statutory context, we say that consideration of the matters raised in representations is a condition on the exercise of the power in subsection 501CA(4), material breach of which gives rise to jurisdictional error. In that regard, your Honours, we adopt what was said by Justice Colvin in the Full Federal Court decision in Viane at paragraphs 75 to 77.

That decision, I understand, an incorrect version had previously been included in the joint book of authorities and the correct version was provided to the Court yesterday. If I can go to those passages, at paragraph 75, his Honour states:

It follows from the above that a failure to consider significant matters in the representations would be a failure to conform to the statute. Further, it would be a failure to conform to a part of a statute that must be met in order for there to be a valid exercise of power. The statutory requirement for the Minister to invite representations must lead to the conclusion that if representations are made as to significant matters then the Minister must consider whether to revoke the original cancellation and do so by considering the representations as to those matters. Jurisdictional error, in the sense relevant in the present case, consists of such a material breach of an express or implied condition of the valid exercise of a decision‑making power conferred by the Migration Act -

Then there is reference to the reasons for judgment in Wei of your Honours Justices Gageler and Keane. Then at paragraph 76, Justice Colvin goes on to say:

A failure to conform to a statutory condition that must be met in order for there to be a valid exercise of power invalidates the exercise of power . . . This is not a matter of natural justice. It is a requirement of the statute.

As your Honours will see, Justice Colvin then went on towards the end of paragraph 76 to state:

There is jurisdictional error because a valid refusal to revoke cannot be made by the Minister unless all matters that may be significant for a Minister forming the required state of satisfaction under s 501CA(4)(b) that are raised by way of representations have been considered by the Minister.

Then at paragraph 77 your Honours will see that his Honour Justice Colvin also found in addition to that error that there was an additional error – or referred to the additional way in which the error can be formulated by reference to principles of natural justice, having regard to what was said ‑ ‑ ‑

GORDON J: Mr Knowles, if I was to put it to you this way, is your submission in a nutshell this, that the entire scheme of 501 and 501CA is that an applicant is not given procedural fairness when the visa is cancelled and therefore it would be redundant to deny them procedural fairness at cancellation, ask for representations and not consider them?

MR KNOWLES: Yes, absolutely, that is it in a nutshell, your Honour, with respect.

GORDON J: Then the second aspect is, as I understand your argument, when they have made the representations which you identify as being in effect the trigger, there is an obligation – I think you put it this highly – for the delegate to consider an articulated claim that is put forward.

MR KNOWLES: Yes.

GORDON J: Then the question which is left is, as I understand it, the way in which section 501CA is to interact with the acts, articulation and adoption of the international obligations, i.e. does it extend beyond that which has been adopted into domestic law or not and, secondly, under both routes what the delegate is to do in relation to those particular claims.

MR KNOWLES: Yes, we certainly – we say that even those first points in respect of the failure to consider representations and the…..in section 501CA…..in section 501 where there has been a failure to comply with consideration of representations to afford that procedural fairness at that point, that is enough for there to be error and, where it is material ,for there to be jurisdictional error. In addition to that, we would say that were various misunderstandings ‑ ‑ ‑

EDELMAN J: Mr Knowles, do you need to put your submissions at that high a level? Is it necessary for you to establish that there is an implication in section 501CA(4) that requires, in the words of Justice Colvin, the consideration of all significant matters, or could it simply be put on the basis that the requirement is one to exercise the duty to consider in a reasonable way and that a reasonable way will usually, but depending upon the particular facts of a case, require consideration of significant matters.

MR KNOWLES: Yes, that is another way in which one might say that the statute ought to be construed. I accept that, your Honour, absolutely. Of course, there is another way in which – I think the submissions of the defendant have referred to a notion of a fire hydrant mode of making representations – what your Honour has just referred to is a way in which one would expect that that would not occur in that there would not be an obligation if it were reasonable not to consider a particular matter in a given case. On top of that, there would not be an obligation so as to give rise to jurisdictional error if the failure to have regard to a matter that was the subject of representations was not material in any way.

I mentioned a moment ago about the provision having a remedial and beneficial purpose. This picks up, perhaps, the matter that your Honour Justice Gordon raised a moment ago. We say that is of considerable significance in this case that the condition on the exercise of power in section 501CA(4)…..protective of the rights of people who have had their visas cancelled without any opportunity to be heard.

In that regard, your Honours will have seen that we have referred to the case of Forrest & Forrest v Wilson, which is at tab 10 of the joint book of authorities. In that case, at page 363 of the joint book, paragraph 85 of the reasons for judgment, towards the end of that paragraph, it was stated by Chief Justice Kiefel, Justices Bell, Gageler and Keane:

Indeed, consistently with Project Blue Sky, where non‑observance of a condition bearing upon the exercise of a statutory power would work to the material disadvantage of individuals for whose protection the condition exists, considerations of justice and convenience tell strongly in favour of holding invalid acts done in neglect of the condition.

We would say that is a pertinent consideration here in how section 501CA(4) ought to be construed.

Then, if I can come to what that consideration actually requires. I have already alluded to this earlier. …..established principles in the line of authority – perhaps typified by cases such as Tickner v Chapman – there needs to be an active, intellectual engagement with the representations as such. We would also refer to what was said by your Honour Chief Justice Kiefel in that case.

Perhaps if I can go to that. It is at tab 57 of the joint book of authorities. Your Honour Chief Justice Kiefel’s reasons – in particular, if I can go to page 2009 of the joint book of authorities, at the bottom of page 495. Obviously, it is accepted that the word “consider” in this case was contemplated in the context of a particular statutory provision in the Aboriginal and Torres Strait Islander Heritage Protection Act1984. Having said that, as your Honour observed – and this is at Part G of page 495:

To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different.

But I will take from that that, really, one is considering the meaning of “consider” more broadly than just in that particular statutory context. Then your Honour went on to say:

It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say.

Now, we do not complain about there being knowledge of what the representations actually say in this case, but there was no passing through what I will call a gateway of consideration such that there was any taking into account and giving weight to the relevant issue at hand, that is, it might have been that the decision‑maker gave no weight to it, but that could only happen after the relevant matter had been brought to bear by way of having been considered in a way that involved some active intellectual engagement. Here, the relevant ‑ ‑ ‑

STEWARD J: Mr Knowles, I am sorry to interrupt, but the real question perhaps, is this. What is it about what the delegate wrote, in considering the claim to fear harm, that was not active or intellectual engagement with that issue? In other words, your case is that you say the delegate had to inquire into the merits of the claim in some way, but why is that the only way of giving active intellectual consideration to the claim…..wrong, the delegate would say you were eligible for a protection visa and your claim to fear harm will be addressed then.

MR KNOWLES: Well, the difficulty is that is an entirely separate process under the statutory scheme, and by doing that the delegate has removed from consideration the claimed existence of non‑refoulement obligations informing a state of satisfaction for the purposes of subsection (4) and, in particular, whether or not there was another reason to revoke the visa cancellation. That is the critical difficulty here ‑ ‑ ‑

EDELMAN J: Mr Knowles, the question is not whether or not there was an error, because the error has to be jurisdictional. It does not matter whether or not….. It might have been an error for the decision‑maker to engage in that type of process. You have to go a step further at least and say that that legal error was unreasonable at least, or the legal error violated some other implied….. in 501CA(4).

MR KNOWLES: Yes, because of the centrality of representations as going to a process…..occurs…..

KIEFEL CJ: Mr Knowles, we cannot hear you. You will have to restate that last submission.

MR KNOWLES: We say that the centrality of representations, having regard to the beneficial and remedial nature of section 501CA, in light of what appears in section 501 whereby a person has no prior opportunity to be heard, goes to why, in this case, the representations have to be brought to bear on a consideration – state of satisfaction – as to whether or not there is another reason to revoke the visa cancellation.

GAGELER J: Mr Knowles, can I ask a question?

MR KNOWLES: Yes, your Honour.

GAGELER J: One way of reading paragraph 48 is the delegate saying, I understand your representation that your removal from Australia will be in breach of Australia’s non‑refoulement obligations, and my response to that is, given your ability to apply for a protection visa, that is not a reason why the original decision should be revoked. If that is the correct understanding what the delegate has done, what is wrong with it?

MR KNOWLES: Well, we would say there is quite a bit wrong with it. Firstly, it is a matter – the existence of non‑refoulement obligations is a matter that can go to another reason and in this case ‑ firstly, we would say that, with respect, that is not the way in which paragraph 48 ought to be read.

Secondly – and we would say on the basis that there is nothing there that goes to having regard to and grappling with this issue in the balance – secondly, all of the representations went to another reason and ought to have been addressed in some cumulative way – that was the way in which they were put by the plaintiff – and they were not assessed in that way by excluding this matter, even if there was a separate process that allowed for a person to have their protection obligations assessed.

Thirdly, as we have submitted, assessment of protection obligations at some later stage in a protection visa application would not be the same as consideration of the existence of non‑refoulement obligations. There is not, I do not think, any dispute between the parties that those two concepts are different in various ways.

And, finally, it would be – in reaching a view to that end, it misconceives the ability of a person to bring to bear on there being another reason the question of existence of non‑refoulement obligations when, in the context of a protection visa application, even if they are assessed and found to exist, it does not result necessarily in a favourable outcome for a person in that protection visa criteria are either satisfied or not – all criteria need to be satisfied, not just those going to the existence of protection obligations.

There are other criteria, as occurred here, if not satisfied could mean that despite there being a finding of the existence of non‑refoulement obligations, which is no small matter, they could ultimately…..having regard to the application of a visa criteria. So, we would say, in those circumstances, the difficulty with the…..the different decision‑making powers…..about that – the different decision‑making powers under section 65 and section 501CA respectively in that the opportunity to have regard to non‑refoulement obligations here stands apart from disqualifying criteria.

It can be given greater or lesser weight, depending on the decision‑maker’s assessment of that matter vis-à-vis other matters. So, that is really the critical problem in terms of reasoning as one does at paragraph 48, because it misconceives, we would say, how there will be the dealing with non‑refoulement obligations under section 501CA, compared with how they would be dealt with under section 65 of the Act.

This could be, for instance, a situation in which the consideration of non‑refoulement obligations, under section 501CA, with the decision or freedom that is provided under that provision could allow for the weighing of that, whether it be given great weight or not, but, if it were to be given weight, it could lead to revocation of the visa cancellation. On the other hand, as one sees in the facts of this case, the visa criteria may well be met in respect of protection obligations, but it goes nowhere unless all of the protection visa criteria are met, and here, they were not.

So, that misconception of the respective powers informed the decision by the delegate at paragraph 48 not to consider this matter, and it discloses a misconception – a misunderstanding – of the operation of…..not just section 65 but also section 501CA, and that misunderstanding of the operation of section 501CA infects the exercise of power here in such a way that gives rise to error, which we say is material, and therefore jurisdictional. It is not open, on the basis that was put there, for the delegate to exclude this matter from consideration.

KIEFEL CJ: Mr Knowles, where are we in relation to your outline of argument?

MR KNOWLES: We are still in the constructional part of the outline of the argument, but perhaps if I try to move a bit more promptly through the outline. Perhaps if I indicate which paragraph we are at to your Honour – we are still in paragraphs 7 and 8, and 9, that is the territory that I am in at the moment.

KIEFEL CJ: It is just that, of course, on the original estimate, you and Ms Mintz would be due to wind up shortly. I appreciate we have lost some time this morning, but I do think we should get a move on.

MR KNOWLES: Yes, thank you for that indication, your Honour. So, we have already referred to the need to give consideration that is active and intellectual. We would say that while there might have been active, intellectual engagement in one sense, it did not involve consideration in the requisite sense of the representations that was relevant to the formation of the state of satisfaction for the purposes of subsection (4).

As was observed by Chief Justice Allsop in the matter of Hands, which is at tab 38 of the joint book of authorities, at paragraph 3, these are matters that might have very serious consequences for people, and that reinforces the need for careful and thorough consideration that involves…..intellectual engagement as opposed to the existence or otherwise of non‑refoulement obligations. So, we refer in that regard to the Full Federal Court’s decision, which adopts what was said in Chief Justice Allsop in Minister for Home Affairs v Omar at paragraphs 37 to 41 at tab 41 of the joint book of authorities.

So, if there is a failure to consider a representation, and if that representation is a matter that it would be having regard to an implied condition of reasonableness as to the exercise of the process at hand, if it would not be reasonable in all the circumstances, whether it be because it is a significant or substantial, clearly articulated matter, then in those circumstances a failure to have regard to it fails to conform to the relevant statutory task imposed by section 501CA.

As we have said, our case is not just put on that basis, it is also put on the basis that, in any event, as a matter of implication, there is a…..power that it be exercised with procedural fairness to those whose interests may be adversely affected by the outcome of the exercise of that power, and, in particular, that requires, in turn, that there be consideration of a substantial, clearly articulated argument advanced by the person in support of revocation in the way that was described – albeit in different circumstances, but described in Dranichnikov by Justices Gummow and Callinan at paragraph 24.

Now, I just wanted to say a few words about what has been said by the Minister in submissions, having regard to Applicant S270. That case, in short compass, we say is entirely distinguishable from this one, in that in that case it was found that there had not been representations made as to the existence or otherwise of non‑refoulement obligations. That is the first point.

The second point is that it was a case that focused on the question of mandatory relevant considerations, and what is said in that case goes to whether or not non‑refoulement obligations are a mandatory relevant consideration for the purposes of section 501CA. That is the context in which paragraph 35, to which our learned friends attach some significance ‑ we would say that is the context in which that paragraph has to be read. It is going to the issue of a mandatory relevant consideration, otherwise one sees across that decision – particularly at paragraph 36 – that really what was said in Applicant S270 was that it was necessary to have regard to the materials and claims made by a person in the course of making the representations for the purposes of the exercise of power under section 501CA.

In terms of the decision‑making here, we do say that what occurred by the way in which the delegate reasoned was that there was a failure to consider a substantial clearly articulated set of representations in forming the state of satisfaction as to the existence of another reason to revoke visa cancellation, and that that failed to conform to the statutory condition on power. And, for those reasons, questions 1, 2a and 2b in the special case should each be answered yes, and that, we say, is sufficient for the plaintiff to be successful in this case.

But we make further submissions as to other errors that are demonstrated, or perhaps explain these initial errors in terms of misunderstandings of the law and those submissions principally rest on the application of principles in Hetton Bellbird Collieries and what was said by your Honour Justice Gageler…..that goes to the need for…..to reach a state of satisfaction on a correct…..of the law, and in particular a correct understanding of section…..

I have already made some submissions in that regard in response to the matter raised by your Honour Justice Gageler earlier, but we do say that there were in essence misunderstandings about the manner in which non‑refoulement obligations could be considered under…..statutory decision‑making processes. Even then, the extent to which those obligations could be considered under those two different processes in the case – and just to paraphrase – in the case of the section 65 process, it is dichotomous and limited to consideration of the particular way in which the criterion is expressed in section 36.

Not only that, it is subject to satisfaction of all visa criteria if the case is – as was here – that there is not satisfaction as to all visa criteria, that person does not get a visa. And that is no substitute when weighed up against the prospect of being able to revoke cancellation and have…..Also obviously in the case of section 501CA there is the decisional freedom that was referred to in the case of Ali and the decisional freedom to…..once they have been considered.

Not only that, there is the decisional freedom to go beyond just considering whether or not a person has non‑refoulement obligations which may well, as has been accepted by the Minister, be more extensive – in previous cases, I should say – be more extensive than the codified protection obligations that are provided for in respect of the section 36 criteria. There are other matters that might well come into contemplation once the existence of non‑refoulement obligations are considered such as, as is expressly…..the prospect…..immigration detention if a person has non‑refoulement obligations ‑ ‑ ‑

KIEFEL CJ: Mr Knowles, we could not hear that. Could you please restate that submission?

MR KNOWLES: Yes. Not only that, there is the scope under section 501CA which does not exist under section 65 to consider the consequences of the existence of non‑refoulement obligations if they are found to exist or found to even just possibly exist, and that is that if there is compliance with those obligations, then a person may be well subject to indefinite immigration detention. That prospect is directly contemplated in Direction No. 65 at subparagraph (6) of paragraph 14.1 It is something that is directly within the contemplation of the Minister and those who are delegated to make decisions on behalf of the Minister.

The other prospect obviously is if there is found to be non‑refoulement obligations and they are not complied with, which I might add was a real prospect at the time of the decision under review because at that time section 197C said that non‑refoulement obligations were irrelevant for the purposes of exercising section 198 of the Act.

As such there was a real prospect given that section 198 removal power has to be exercised as soon as reasonably possible – sorry, as soon as reasonably practicable – that a person could be removed to the country in respect of which non‑refoulement obligations exist. That would have obviously devastating consequences for the individual, but it would also have consequences for Australia’s international reputation and standing if it had breached international obligations, and that is a matter that has certainly been observed to be the case as something that could flow in exercising the decisional freedom under section 501CA and could be taken into account in weighing up the existence of non‑refoulement obligations…..

GORDON J: Mr Knowles, may I ask one question about that?

MR KNOWLES: Yes.

GORDON J: You accept that there is the codification by Australia in relation to the incorporation into domestic law of those parts of the treaty in section 36 – a matter to which this Court sought to explain, I think, in earlier authority, DQU16 – to explain the distinction between what were the international obligations and what was then codified.

You took us earlier to the definition of “non‑refoulement obligations” in the Migration Act which, of course, as I understand it, finds – and I am happy to be shown this is wrong – but I thought the only reason why that was included was to make good what was the provision you just took us to – and that is the reference in 197C – that is, to recognise that the broader international obligations, at the time, be relevant to the question of removal. That is why the definition is there – to recognise that there are the broader obligations. But you accept, do you not, that, of course, is subject to 195A – which a number of members of the Court referred to in AJL20?

MR KNOWLES: I accept all of that, your Honour. I do accept that there is a codification of the international non‑refoulement obligations which is narrower and different – narrower to and different to what otherwise exists in international law for the purposes of the protection visa criteria. So, we would say, yes, it has been incorporated in that sense but only for the purposes of protection visa criteria. That is an entirely different statutory decision‑making process to that which one encounters in section 501CA.

It cannot be said that by doing that one can never have regard to non‑refoulement obligations in some other context. It might be said that they are not necessarily a mandatory relevant consideration but, again, that is not our case. Our case is different to a mandatory relevant considerations case.

The authorities that are relied upon in respect of this purported collision between the protection visa criteria and section 501CA, we say do not really take the matter much further because what those authorities show is that there is a need for, in effect, the specific – in this case, adoption of the protection obligations to indicate an intention to be exhaustive.

That cannot be so in this case. The protection visa obligations only go to criteria for a particular type of visa. They do not go to all manner of other decision‑making that might occur under the Act – whether it be cancellation or revocation of cancellation, or something else. But I do accept ‑ ‑ ‑

STEWARD J: Mr Knowles, I am sorry – based upon the claims made by the applicant, is there any material difference between the criterion which would be applicable under the treaties as against section 36(2)(a)? In other words, as best as I can understand, this case does not involve, for example, the internal relocation principle or anything like that. But is there something about the claims that have been made that would require the claims to be differently under the treaty as against section 36(2)(a)?

MR KNOWLES: The short answer is that is a matter for the delegate to consider when dealing with this representation. But, perhaps, answering your Honour’s question more directly, quite possibly, yes, in the sense that there are other aspects in which international treaty obligations are not incorporated into the protection obligations that find themselves in section 36 criteria and, in particular, in sections 5H and 5J. Those matters are summarised…..necessarily comprehensively, but in the decision of WKMZ – which is…..

KIEFEL CJ: We did not hear you, Mr Knowles.

MR KNOWLES: Yes, if I can come back to that. It is certainly – I am just bringing that up. Yes, it is in the case that was provided to your Honours yesterday – FAK19 – and in that decision the differences – and I am not sure that it is intended to be comprehensive – are summarised at paragraphs 117 to 118, where there is a reference to the modifications of international law principles insofar as they are incorporated into the protection visa criteria. So that raises all up – and it is not meant to be exhaustive but at paragraph 118, six matters in which there are differences. I cannot say whether they are different in this case but obviously it is possible.

The only other things I should say – just returning to the questions advanced by your Honour Justice Gordon – are, firstly, yes, we accept that the definition of “non‑refoulement obligations” is only used in section 197C of the Act. Having said that, we also would say that what it shows – that definition – is an acknowledgement by the Parliament in framing the legislation of a distinction between non‑refoulement obligations as…..and protection obligations as they are enshrined in the Act for the, we would say, more limited purpose of the protection visa criteria in section 36.

The last thing I wanted to say, your Honour, was in respect of section 195A of the Act. We accept what your Honour says about that – that that power does exist but, obviously, it is personal and has to be exercised by the Minister. It is non‑compellable. There are guidelines which are exercised such that the matter might not even be referred for consideration at all. Insofar as we understand the matter – our friends will correct us if we are wrong…..for consideration under section 195 according to those guidelines if a person has not satisfied the character test in any event. So, in the present case, section 195A affords very little comfort to someone in the same circumstances as our client, the plaintiff.

KIEFEL CJ: Mr Knowles, the decision in Minister v FAK19, do you rely upon it?

MR KNOWLES: Yes, we do. Yes, we do, your Honour. I should say it follows on from decisions such as Ali, BCR16, BHA17, a number of cases, and we do rely on that series of authorities in terms of the propositions that we put before the Court today.

Your Honours, the relevant errors that we point to as misunderstandings are errors of the nature, as I said earlier, that were described by Chief Justice Latham in the matter of Hetton Bellbird Collieries, and your Honours Justice Gageler and Keane in Wei. As a result of them the decision in these circumstances was not a valid exercise of power and, for that reason, question 2(c) in the special case should therefore also be answered yes.

As I said earlier, it is not necessary for our client’s case that that answer be yes, or even dealt with if the earlier questions are dealt with in the affirmative. It is additional and illustrative, we say, of perhaps a reason why the errors in the preceding questions were made.

They are the matters that I wish to address by way of my submissions in respect of errors. I now propose to have Ms Mintz deliver submissions in respect of materiality and the extension of time. I understand that there is going to be a slight moment while Ms Mintz comes to the…..so to speak. So, I will…..I cannot my sound and also mute my microphone for the meantime, but otherwise I will hand over to Ms Mintz, if it pleases the Court.

KIEFEL CJ: Yes, thank you Mr Knowles. Yes, Ms Mintz.

MS MINTZ: Thank you, your Honour. As Mr Knowles has indicated there are two matters that remain for us to address. They are at paragraphs 12 and 13 of our written outline. The first is materiality. We do not understand from our friend’s submission that materiality is put in issue or seriously put in issue. So, in those circumstances I propose to deal with the matter quite briefly and, indeed, Mr Knowles has already alluded to various of the matters to which I will refer some questions put to him by your Honours, albeit, not always precisely in the context of materiality.

Mr Knowles has already submitted to your Honours the various errors that we say the delegate made. In our submission, each of the errors that we have identified is material and is material for essentially the same underlying reason. If, contrary to the delegate’s refusal to consider the question or the issue or the representation about non‑refoulement – especially at paragraph 48 of the delegate’s reasons – the delegate had considered non‑refoulement and, indeed, had understood, as the delegate should have, that that was a matter that the delegate could weigh in the balance in the exercise of the delegate’s power under section 501CA(4) – what we say could realistically have occurred is this.

First, the delegate could have determined that the plaintiff was a person to whom non‑refoulement obligations were owed. We say that so much was a realistic possibility on the material before the delegate. I will not go to that material – it includes the fact that the plaintiff was a holder of a refugee and humanitarian visa, and also the various representations made by him.

Indeed, in respect of the counterfactual analysis of what could have occurred – and the material before the Court includes, as your Honours know, the reasons of another delegate on a protection visa application and at special case book 152, which I will not ask your Honours to go to unless it assists, that delegate considered that the plaintiff was a refugee and satisfies the refugee criteria in the Act. We say that assists, at least to some extent, with the counterfactual analysis.

In our submission, the delegate could realistically have determined that the plaintiff was owed non‑refoulement obligations, whether that be under the Refugees Convention or under the other treaties that form part of Australia’s non‑refoulement obligations.

Second, having so found the plaintiff was a person to whom non‑refoulement obligations are owed on the counterfactual, the delegate may have considered the possibilities to the plaintiff if the cancellation were not revoked. One possibility, of course…..transpired was that the plaintiff could apply for a protection visa but the delegate could have considered that so much would be to no avail of the plaintiff because he would likely fall within, or may well fall within, the ineligibility criteria, as he did.

The delegate then could have considered that if the cancellation were not revoked, one possibility was that the plaintiff might be removed to…..and Mr Knowles has already taken your Honours to section 197C…..summary terms provided that the relevant – that the obligation of non‑removal was unaffected by non‑refoulement obligations.

If the delegate had proceeded in this way, the delegate may have been concerned not just about the potential harm to the plaintiff if he were removed, but also concerned about implications of a breach of Australia’s non‑refoulement obligations under international law. So, to put that another way, the delegate may have been concerned, and seriously concerned, about a breach of non‑refoulement obligations, qua breach of international law.

I will not take your Honour to the authority, but I will simply summarise it. In Ali v Minister for Home Affairs, their Honours in the Full Court say at paragraphs 90 and 91, by reference to Australia’s various treaty obligations that form part of the non‑refoulement obligations that the consequences of non‑compliance not only impact on the applicant but also Australia’s reputation and standing in the…..and consideration of those reputational interests is capable of furnishing another reason under section 501CA(4)(b)(ii).

On the other hand, your Honours, the delegate may have considered that the plaintiff would not be returned to South Sudan in light of those non‑refoulement obligations and so much would have been consistent with the Executive’s policy of non‑refoulement to which Mr Knowles has already referred, and in that context the delegate may have considered or could realistically have considered that the plaintiff faced the real prospect of being held in indefinite or prolonged detention.

We do not say that the delegate’s decision necessarily would have taken either of those courses that I have identified, but it could have as a realistic possibility and those matters, in our submission, plainly could have affected the exercise of the power by furnishing or going to a reason why the cancellation decision should be revoked. That is all we wish to say about materiality.

If I can move to the extension of time application. We have sought enlargements of time under both the Migration Act and the Rules. The central question, your Honours, on this application is whether the Court is satisfied that the extension is necessary in the administration of justice. We accept, as we must in this case, that the extension the plaintiff requires is substantial. In those circumstances, we need to demonstrate to your Honours that there are exceptional circumstances. In our submission, the circumstances of this case, taken together and cumulatively, are exceptional and also demonstrate it is necessary in the interests of the administration of justice to make the order.

We have sought to summarise the matters we rely upon at paragraph 13 – there are five matters – of our outline. I will go to those matters in a moment – those five matters – but, before I do, we simply emphasise at the outset that we do not rely on any of these matters in isolation. What we seek to do is persuade your Honours that it is the combination, or the cumulative effect of these matters, that demonstrates the exceptional circumstances and the necessity of making the order in the administration of justice.

The first matter we rely upon is the explanation for the delay. The relevant facts, your Honours, have been agreed. The relevant facts to the plaintiff’s delay are set out in the special case at paragraphs 11 and 17 to 27 in particular. I will not read from those paragraphs, but I will seek to summarise them.

The explanation is this. At all material times since the impugned decision, the plaintiff has been in prison or immigration detention, he has been of limited means, he has had no legal representation until October last year and his grasp of the English language is poor. Given those circumstances, he was assisted by a fellow inmate at Marngoneet Correctional Centre to make further representations to seek…..and…..to understand the reasons when they are received and to understand what to do next.

That inmate told the plaintiff that he would need to apply for a protection visa and…..the plaintiff did not understand that there was any process available to him to challenge or appeal the delegate’s decision. He only understood that he could apply for a protection visa. That is what he did, your Honours, very expeditiously. The next month, he applied for a protection visa, which protection, as Mr Knowles has…..was refused two years later, in September last year.

In October he received legally‑aided assistance…..challenge the decision in this case and that accounts, your Honours, for the lion’s share of the delay. The steps taken since then for pro bono solicitors and counsel to be secured…..of his ability to seek to challenge the decision.

The second circumstance we rely upon is the public interest dimension of this case. That is a factor that was referred to and relied upon by Justice Crennan at paragraph 12 of Plaintiff M168, which is in the joint book, and we rely upon the fact that the reasons of the delegate are relevantly identical to or very similar to decisions of other delegates or Assistant Ministers in a large number of other cases.

The Full Court in Ali at paragraph 2 refers to the explosion of cases in this area and in that context we submit that it is in the public interest to

have the matter resolved by this Court, and so much appears to be accepted by our friends in their submissions at paragraph 49 and in their response to the application to the constitutional writ at paragraph 10. That is the second matter.

The third matter we rely upon, your Honours, is the merit of the case. At paragraph 49, the defendants have accepted that we raise an arguable case. In any event, we say that the merit of the case is apparent from Mr Knowles’ submissions today and in that circumstance we say the delegate erred in the ways we have put. Those areas were jurisdictional, and it is necessary to quash the delegate’s decision in the administration of justice. The fourth matter we rely upon is that the Minister has not identified any prejudice to her in the delay.

The final matter we rely upon is the likely consequence to the plaintiff if the extension of time were not granted, and that likely consequence is that the plaintiff will be consigned to indefinite or prolonged detention. Of course, as your Honour, I think it was your Honour Justice Gordon, put to Mr Knowles, there is section 195A and other personal powers that exist in the Migration Act. There, of course, has been no indication in this case any of those will be exercised, and they are non‑compellable, so the likely consequence to the plaintiff if the extension is not granted is indefinite detention.

Your Honours, those are the five circumstances we rely upon. We say cumulatively they are exceptional and support the application we have made. If the Court pleases.

KIEFEL CJ: Thank you, Ms Mintz. Is there anything further, Mr Knowles?

MR KNOWLES: There is nothing further for the plaintiff’s submissions. That concludes the plaintiff’s case.

KIEFEL CJ: Yes, thank you. The Court will now adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Lenehan.

MR LENEHAN: Thank you, your Honour. Your Honours, our submissions on question 1 proceed from our acceptance of the point made in S270 that, although wide, the power conferred by section 501CA(4) must be exercised by considering the claims and material put forward by the applicant.

The central issue for the purposes of question 1 is the nature of the consideration that is required, and our friends as we understand them say, reflecting the reasoning in Ali, that the only way that condition can be met on the current case is if the decision‑maker in fact determines or at least considers the merits of such a claim.

We say that misapprehends the nature of the constraints which attach to section 501CA(4). We say as long as the decision‑maker appreciates what any representations concerning non‑refoulement say, having brought their mind to bear upon them, the decision‑maker can filter out those matters from the analysis in the very way that was done here, provided of course, picking up on Justice Edelman’s point, that that reasoning is within the bounds of rationality and reasonableness.

Can I develop that this way. We say that what section 501CA(3) and (4) read together do is make a particular body of material a mandatory relevant consideration, and that relates to the point the Chief Justice made…..my friend’s address referring to Federal Court authority that talks about representations as a whole being a mandatory relevant consideration, not individual statements within those representations.

From there we say that is a distinctly different idea to that which your Honours see in a statute that makes a particular factor or - which was the language used by Justice Mason in Peko or issue a mandatory matter. Where one has a mandatory relevant consideration specified in that way, that is, an issue or a factor, it tells you what the substantive matters are that you are required to consider, which then guides you to the material that you might think to look for.

So, an example of that – a well‑known example – is the mandatory consideration identified in Yusuf, where Justices McHugh, Gummow and Hayne said that the issue of whether acts of persecution had occurred in the past was a mandatory relevant consideration in the context of a protection visa because, the logic being what has occurred in the past will likely be a reliable guide to what will happen in the future, and that then pointed the decision‑maker to a particular body of material, that is, factual claims of past harm, although, as their Honours also noted in Yusuf, those claims do not themselves become mandatory considerations.

So, in that kind of case the parliamentary command to consider a particular factor or issue can be seen as reflecting an intention that that issue or factor be placed on what Professor Aronson in earlier but not his current addition of his well‑known text, used to refer to as the decision‑maker’s agenda, that is, a matter that the decision‑maker must grapple with and which will shape the path of the decision they are making.

In such a case it will generally not be sufficient for the decision‑maker to say that she has considered those factors or issues in the sense of looking at but discarding them, unless to – again to pick up what Justice Mason said in Peko – unless the particular issue or factor is so insignificant that a failure to take it into account could not have made any material difference.

We say that a distinctly different approach is required when one comes to construe an obligation of the current kind. The reason relates to a point that Justice Steward made during argument in the recent case of Viane, that is, that the potential content of those representations is not limited or predetermined by the statute, other than that they are - see section 501CA(3)(b) - to be about revocation. So, that material may well be a mass of diffuse material. It could even involve matters that are, on any view, extraneous to the power.

So, the notion of requiring consideration be given to the representations as a whole reflects the notion that Parliament should not be taken to have intended that all of that material should make its way on to what I will call, picking up Professor Aronson, the decisional agenda.

As our friends have developed their submissions, they seem to accept that much and they seem to accept that only substantial, clearly articulated representations require consideration. But, we say, even in the case of those kinds of claims – in the context of a very broad evaluative power – it must be the case that there remains room – subject, again, to the limits of rationality and reasonableness – to take the view that that claim, even if made out, would not be a reason to revoke the cancellation and put it to one side. So, your Honours see that I am heading very firmly towards Justice Gageler’s characterisation of 48 of the reasons which I am going to say is how they should be construed.

Before I get there, can I put those ideas together and say this? One takes from all of that that Parliament’s functional concern in impliedly imposing a duty to consider the representations as a whole is different to that involved in a duty to consider an issue or factor. It is a duty that we say is more closely allied to procedural fairness. We accept the point that Justice Edelman made during our friend’s oral address, that it is really more of a process obligation.

That, I think, is where Mr Knowles ultimately got to in his submissions. My note of how he put it in oral argument was that it was an opportunity to be heard through the representations. The point really then is that the decision‑maker should hear and pay…..the matters the former visa holder seeks to have them accept as either another reason for revoking the decision or as relevant to the character test.

That then means that what one has – to use a phrase given by Justice Colvin in an earlier part of Viane, which my friend took you to, but earlier in his Honour’s reasons, at paragraph 67, he talks about the notion of it being an obligation not to overlook the representations.

If it is understood in that way, then the alternative ways that our friends put their argument, that is, some sort of mandatory consideration drive from the statute or procedural fairness is really the same point. So, the further proposition that our friends took you to in Justice Colvin’s reasons at paragraphs 75 to 77 – referring to Dranichnikov – does not involve any further or different obligation. It is also concerned with overlooking – as an aspect or an extension of the hearing rule – and the point, of course, underlined in Dranichnikov is that it can be inferred from a failure to respond to a clearly articulated claim made in representations that the person’s claim may not have been heard or dealt with at all.

But, again, a sufficient response to such a claim is that that I mentioned before, that is, I recognise and understand that claim, but I take the view that that claim, even if made out, would not be a reason to revoke the cancellation and…..provided that the reason for doing so complies with the requirements of rationality and reasonableness…..

Before I do, your Honours, can I say that that also aligns with the passage from the Chief Justice’s reasons when in the Federal Court in Tickner, to which our friends took your Honours. Picking up on that passage, we say that all that is required in a case such as the present is that one has to appreciate what the representations say, with the decision‑maker having brought his or her mind to bear upon them, but then beyond that ‑ your Honour used the term “sifting” – one can engage in a sifting process, attributing whatever weight and persuasive quality thought appropriate to the representations. Effectively here the reasoning was, “I give them no weight or no persuasive quality.”

Can I also say that that part of your Honour’s reasons in Tickner was said by a Full Court of the Federal Court in Omar, which your Honours have in the joint bundle – I do not need to take your Honours to it, I know where it is – at tab 41, paragraph 36(c) of that decision. Their Honours said that that understanding was particularly apposite to section 501CA(4), and we agree.

Then coming to the reasons, what the delegate did here, we say, conforms to that notion of considering the representations. Your Honours will recall that Mr Knowles took you to, in the special case book at 120, the passage that appears at paragraph 12 of the reasons where the delegate expressly said that she or he considered the representations and the documents submitted in support of those representations and that can be taken to at least mean that she read them. She or he then specifically refers to and seemingly understands what is being put by the plaintiff as regards non‑refoulement in the passage that appears at page 125 of the reasons.

We do embrace what your Honour Justice Steward said during my…..regarding Direction 65. Your Honours will see that there is reference to that direction throughout these reasons, including where this consideration starts in paragraph 45. What one then takes from the final sentence in paragraph 14.1(1) of Direction 65 ‑ that is the passage that Mr Knowles took your Honours to before – is that the decision-maker is approaching this on the basis that the Act reflects Australia’s…..of the relevant obligations and the decision‑makers should follow the tests enunciated in the Act. Mr Knowles sought to explain this passage ‑ ‑ ‑

STEWARD J: Mr Lenehan, before you go on, do I take it from that submission that you are saying that Ibrahim is relevantly wrong?

MR LENEHAN: Yes, I am.

STEWARD J: Thank you.

MR LENEHAN: I will come back to develop that, because what takes place in these reasons is all then to be understood as being seen through the lens of the Act. Now, Mr Knowles sought to have your Honours accept that one could explain that away by reference to the definition in section 5. In that regard we embrace what your Honour Justice Gordon said, that is, directed to section 197C, which in fact says for the purposes of removal, it is irrelevant whether Australia has such obligations. But perhaps the further point is that that definition does not enunciate tests. The tests are enunciated in the provisions dealing with applications for protection visas. That is the only sensible…..to understand that part of the direction.

So then moving on to the…..way in which the delegate deals with this topic, paragraph 46, she or he records the plaintiff’s statement that the plaintiff:

does not think it is possible that he will be sent back to South Sudan because of ‘non‑refoulement obligations’ –

which Mr Knowles showed you before in the special case book. Then at paragraph 47, the delegate records the nature of the harm the plaintiff feared if returned to South Sudan, and also there claims of past harm affecting his family, his father. Then the delegate’s reasoning, at paragraphs 48 and 49, we say is to be characterised in the way your Honour Justice Gageler put to our friend, that is, it does not involve a failure to consider the representations in the requisite sense or to respond to a clearly, we accept, articulated claim. The claim has been read, recognised and understood, and a reason has been given for treating it as irrelevant.

What the delegate was saying…..your Honour, just as I have said, even if this claim is made out…..the cancellation, or as an aspect of another reason for doing so, because, broadly speaking, there are other specific mechanisms established by the Act for dealing with claims of this kind to which the plaintiff had access and that, we would suggest, is a perfectly legitimate process of reasoning. It recognises in the case of cancellation of all visas other than a protection visa, it is not the case that the cancellation of the visa will lead automatically to removal from Australia.

That, of course, is by reason of sections 501E and 501F, and your Honours will recall that section 501E(1) prevents a person whose visa has been cancelled under section 501 from applying for another visa, but then section 501E(2) immediately qualifies that by providing that 501E(1) does not prevent an application for a protection visa. Then section 501F works in a similar way. It, in effect, says that a decision made under section 501 to cancel a particular visa held by a person is deemed to be a decision to cancel any other visa held by that person other than, relevantly, a protection visa.

The relevance of that is – your Honours saw this – or some of your Honours saw this – in Plaintiff S270, and during the submissions of the Solicitor‑General. That was said in Huynh, which appears at tab 44 and page 1568 of the joint book, but in a passage that we have extracted in our written submissions at paragraph 25.

EDELMAN J: Mr Lenehan, just before you do move to Huynh, can I ask you about your submission about paragraphs 48 and 49? What do you say is the non-refoulement obligation that is being considered and put to one side, as it were? Is it the statutory instantiation of – or the domestic obligations – or is it the international non‑refoulement obligations, the treaty obligations?

MR LENEHAN: Your Honour, what the delegate is saying is that all such understandings of those obligations – that is be they at international law or be they the more narrowly domestic law obligations – can be dealt with by the key mechanism provided for by the Act.

EDELMAN J: Do you accept that that is incorrect, that the domestic mechanism provided by the Act only provides for the international obligations to the extent that they have been incorporated in domestic law?

MR LENEHAN: I certainly accept that the Act only provides for – as provided within domestic law – but what the delegate is saying is that any claim of non‑refoulement is to be addressed in that way that Parliament has provided for – and I am not going to consider it as another reason otherwise, is what we would say.

KIEFEL CJ: Mr Lenehan, just taking up that point, you are really saying that it is sufficient consideration on the part of the decision‑maker that the protection visa process will consider that part of treaty obligations that has been enacted and no more?

MR LENEHAN: Yes.

KIEFEL CJ: Thank you.

GORDON J: Mr Lenehan, can I add one thing to that? Do you extend it also to what is described as ministerial interventions that are subsequent to the process?

MR LENEHAN: Your Honour, the delegate does not in terms address what might happen there, but of course, under section 195A, consideration of those broader matters could well be considered. So, the potential relevance of that is that even if, under the narrower scheme provided for in the making of protection visa applications, it does not lead to the grant of a protection visa and Australia’s non‑refoulement obligations are still potentially in issue, then that is the route that Parliament has provided for those things to be taken into account.

EDELMAN J: Mr Lenehan, one of Ms Mintz’s submissions was that international non‑refoulement obligations picks up in its context matters such as Australia’s international reputation. If that had been spelt out as such, is it the Minister’s submission that it would be reasonable to say, I am not going to consider the effects on Australia’s international reputation, because whatever effects they may be will be dealt with as a result of the domestic law provisions concerning protection visas.

MR LENEHAN: Your Honour, we would put it slightly differently. So, of course, we do not have that specific submission put here, so the delegate did not need to grapple with it. But what the delegate can say is that, whatever be the consequences for Australia’s international reputation, those matters have been determined to be dealt with by Parliament in a specific way and that is the way that I say that it should happen, and I therefore do not bring to account considering 501…..

Now, we do say, returning to Huynh…..submissions that that approach is supported by that authority and also by 501E and F because you will see in the passage we have extracted there it was said in that case that it demonstrates a clear legislative intention where the visa, the cancellation of which under consideration is not a protection visa, to divorce issues relating to protection from the factors required to be considered for the purposes of making a decision under section 501 - and of course 501E and F apply equally to 501CA(4) decisions in the mandatory cancellation decisions.

So, we say that the approach of the delegate avoids running together quite different stages of the decision‑making process directed to issues which it was said in Huynh were intended by Parliament to be divorced from each other. What is really involved in that sort of reasoning is recognising that when a visa other than a protection visa is cancelled and that that decision is not then revoked, the person will only be available to be removed from Australia either if they do not choose to apply for a protection visa or, if they do choose to apply for a protection visa and they are unable to obtain that visa either because their claims are not believed or because they do not meet the criteria as Parliament has chosen to incorporate them into Australian domestic law, subject of course again to the backstop that Justice Gordon has identified in section…..

Now, when asked why that reasoning was wrong, we understood our friend to say things that really crept into the other grounds, the so‑called misunderstandings, in particular the notion that I have already been making submissions on, that is, that the international notion of these obligations is wider than that under the Act.

We say that those submissions should not be accepted for this reason. It is well accepted that an international treaty can only operate as a source of rights and obligations under municipal law or a constraint upon statutory power if and to the extent that it has been enacted by Parliament.

Those of your Honours who sat on Applicant 270 saw – and in the reasons of Justices Nettle, Gordon and Edelman refer to a passage from CPCF and to two aspects of the reasons of Justice Gageler and Justice Keane where it was said that the extent to which those obligations have been enacted by Parliament really marks the edge of the effect that they can have in terms of the Act.

The extent to which those obligations have been enacted by Parliament here, lies within the boundary drawn by the express provisions referred to in footnotes 10 and 11 of the joint reasons in Applicant 270, and ‑ ‑ ‑

GLEESON J: Mr Lenehan, I appreciate this question may be the tail wagging the dog, but in Direction No 65 at 14.1(6) the direction contemplates a circumstance in which:

decision‑makers should seek an assessment of Australia’s international treaty obligations.

How is your submission squared with the evident direction that decision‑makers should be looking beyond – or apparent direction – that the decision‑maker should be seeking an assessment beyond the enactment, the domestic enactment, of the obligations?

MR LENEHAN: That is because, Justice Gleeson, one reads that aspect of the direction in light of what appears in the first clause of 14.1, where it says:

The Act reflects Australia’s interpretation of those obligations and, where relevant, decision‑makers should follow the tests enunciated in the Act.

So that is why I say when one sees references in these reasons to international non‑refoulement obligations, one is looking at a very specific thing and……

GLEESON J: Speaking for myself, I did not hear that last sentence. Would it be possible, Mr Lenehan, to repeat that?

MR LENEHAN: Yes. Your Honour, we say that one understands that part of the direction – that is 14.1(6) - by reference to what appears in the first clause of 14.1(1), in the last sentence, where it made clear that:

The Act reflects Australia’s interpretation of those obligations and, where relevant, decision‑makers should follow the tests enunciated in the Act.

So, the reference in (6) to seeking an:

assessment of Australia’s international treaty obligations -

that is by reference to that idea – things that are enunciated within ‑ ‑ ‑

STEWARD J: Could I then ask you a question, Mr Lenehan ‑ ‑ ‑

KIEFEL CJ: Mr Lenehan ‑ ‑ ‑

STEWARD J: I am sorry, Chief Justice.

KIEFEL CJ: Thank you, Justice Steward. Mr Lenehan, 14.1(6) commences “In these circumstances” - is that a reference back to (5), the cancellation of a protection visa?

MR LENEHAN: Yes. Yes, it is, your Honour.

KIEFEL CJ: It is specific circumstances that it applies?

MR LENEHAN: Yes, that is correct. So, in that case, because of 501E, there would not be an opportunity for a person to apply for a further protection visa.

STEWARD J: I think I will have one more go. Mr Lenehan, can I ask, is the logic of your submission that it would not be another reason to revoke if the claim was one made only under the treaty and which could not be made under domestic law. So, for example, if the claim was based on the treaty’s approach to internal relocation, could the Minister say, notwithstanding Australia’s approach to that issue, that is nonetheless a reason to revoke, or must, given the statutory context, must we conclude that it is only non‑refoulement claims that are alive under the Act that could be another reason?

MR LENEHAN: If your Honour is asking me is that a permissive consideration, we say certainly. But I think your Honour may be asking me, can the decision‑maker reason in the same way that she or he did in these circumstances and we say, yes. We say the decision‑maker can regard what is in the Act as being Parliament’s statement of intention as to how these kinds of claims were to be dealt with and that it can be left to that process even though it is a narrower one.

EDELMAN J: Just so I understand that answer then, you do not say that another reason why needs to be read down to exclude any international treaty obligations. You just simply say that whether or not international treaty obligations are taken into account as another reason or whether the approach that is taken is the one that was taken in this case, both are reasonable alternatives.

MR LENEHAN: Yes. That is all I need to establish, Justice Edelman, to get over what I think is now our friend’s argument. I do not think it has, in fact, been put that this was unreasonable or irrational. But that, we say, would be the only reason that this kind of reasoning was impermissible.

GLEESON J: Mr Lenehan, I am concerned that the effect of your argument is to overturn – if accepted – to overturn potentially two lines of authority in the Federal Court. One would be specifically in relation to the treatment of claims relating to non‑refoulement but another might be more generally the approach – or what is required to consider representations under 501CA(4). It would help me if you could identify, at some stage, which of the Full Court’s decisions you would accept ought to be overturned on the argument that you are now putting.

MR LENEHAN: I will do that, Justice Gleeson. I will have Mr Kaplan give me a list before I sit down. Can I say in terms though – I think your Honour’s concern relates to what else might happen in relation to other representations that are put forward. The decision‑maker would then need to identify a reasonable and rational reason for doing what was done here. That may not be a very straightforward process when one does not have – as you do here – the aid of a specific set of provisions in the Act and 501E and F – which all point to a way in which that kind of representation was contemplated to be dealt with and a way in which, then, the decision‑maker can defer consideration of that sort of representation. But I will identify more precisely the decisions that we say are inconsistent with what I am putting.

So, I have said that unless that reasoning was affected by unreasonableness or irrationality – and we say it is not – then it would follow that there is no error in that reasoning. It would then follow that to say that, in these circumstances, the decision‑maker failed to consider a matter that they were required to consider, our friends would then have to demonstrate that Parliament has, in addition, mandated that the issue of the existence of the brief of non‑refoulement obligations must be considered and perhaps determined by the Minister for the purposes of section 501CA(4).

That is, going back to my earlier example, there is something akin to the requirement…...use of to have regard to an issue of that kind. That would mean, if that was right, that that would be something, we accept, that could not be put to one side in the way the delegate did here. But that is why we then say effectively our friends do need to say that the issue of the potential breach of Australia’s non‑refoulement obligations was a mandatory relevant consideration under 501CA(4).

In saying that that is not so, your Honours have seen that we rely essentially on the reasons in Applicant S270 – your Honours are very familiar with that case given that it is a recent one – but could I perhaps identify a particular aspect of that reasoning that we rely on. That appears behind tab 30, in the joint book of authorities, the page number is 1302. Your Honours Justices Gordon and Edelman, and also Justice Nettle, said in paragraph [34] that:

non‑refoulement is addressed separately in the Act in provisions concerning the grant of protection visas . . . and in the context of removal -

and went on to say that the creation of a purpose‑built mechanism, namely the protection visa for the consideration of non‑refoulement obligations militated against the construction of general provisions such as CA(4) as requiring consideration of non‑refoulement. Now, it is true, in the last sentence of paragraph [34] that their Honours said that:

It is unnecessary to decide –

the issue that arises here, that is:

whether consideration of [non-refoulement] can be deferred –

but, for the reasons that I have already developed, we say that really makes no difference to the analysis in a case such as the present. It does not do so because it is open, we say, to the decision‑maker to reason that the issue could be left to the purpose‑built mechanisms Parliament has included in the Act. What then immediately follows in paragraph [35] supports what I have just said, because what it says is:

if a non-citizen affected by cancellation seeks to have the Minister consider non‑refoulement –

which could only be referring to seeking to have them consider that issue via representations:

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.

So, we do draw on that reasoning to say two things. First, it supports the primary point that I have been putting regarding representations, but further it dispels any suggestion that there is lurking in the background some sort of obligation to consider those things in the context of section 501CA(4).

As we have noted in our written submissions at paragraph 25…..constraints imposed by section 501CA(4) - and this I hope partially answers your Honour Justice Gleeson’s questions in terms of decisions that we are not seeking to overturn – that aligns with earlier but not more recent Full Federal Court authority dealing with other provisions in Division 2 of Part 9, and so that includes Wei and also Huynh, which I mentioned earlier, but of course the propositions that I have been putting do directly collide with what was said in Ali.

Your Honours have not been taken to Ali yet, and perhaps I should do so. It appears in the joint book of authorities behind tab 29 and 1256, and if your Honours would note that perhaps…..by what appears in paragraphs 44 and 45 where it makes clear the point that I referred to before, that is, that the way in which the court dealt with this in Ali reflected very much an analysis centred on Peko. But when the Full Court gets to ‑ ‑ ‑

GORDON J: Mr Lenehan, this was before Applicant S270, was it not?

MR LENEHAN: It was, and your Honour will have seen from our written submissions that we make the point that Justice Bell in fact detected difficulties in reconciling this decision with Applicant S270 in a case called Drame which your Honours have behind tab 34 of the joint bundle of authorities. The particular error in the reasoning that we detect appears at paragraphs 95 through to 106 and, to give your Honours some examples, in paragraph 96 their Honours focus in particular on the fact that the Minister did not determine the question of whether non‑refoulement obligations were owed or breached.

Then you see a similar idea in paragraph 99, but perhaps the best illustration of the error that we see in Ali is in paragraph 101 and about halfway through the paragraph commencing with the words “Although the ground advanced”. So, what the court says there is:

Although the ground advanced in support of revocation contains some hypothetical elements to it –

that is, referring to a ground based upon non‑refoulement obligations:

including what is likely to happen if the revocation decision is not made, it cannot be ignored. Nor can it be sidestepped by raising another hypothetical proposition that a protection visa application might be made and that the non‑refoulement obligations and the consequences of non‑compliance with them might be dealt with then.

Now, we would accept, consistent with what I have said so far, that the representations certainly cannot be ignored in the sense that they cannot be overlooked, that is, an understanding of the duty that I have identified before that really reflects the notion that it is concerned with things allied to procedural fairness.

GORDON J: Mr Lenehan, can I ask something about that. I am sorry to interrupt. In paragraph 97 the court refers to the decision of Justice Robertson in DOB18 where his Honour draws a distinction between, in effect, the facts underpinning the representation and then the legal consequences from them. Do you accept the way in which Justice Robertson puts it?

MR LENEHAN: I do, your Honour, and your Honour heard in Applicant S270 the Solicitor-General accept a similar proposition. I should say that DOB18 is distinguished here in part because it is understood that there were no representations concerning non‑refoulement, but in fact there were.

Just to give your Honours the reference to where in DOB18 – I should actually tell you where DOB18 is reported. It is (2019) 269 FCR 636 and in paragraph 106 there is an extract from the Minister’s reasons which makes clear that non-refoulement claims were made and so the way in which that case is distinguished in Ali is also, we would say, wrong.

Going back to the notion of sidestepping, we say that the reasoning which the Court describes as “sidestepping” does not involve ignoring the representations. It will be apparent from what I have said before that we say it involves a permissible process of understanding them and then filtering them out of the analysis.

So, we say that the…..of Ali is that the Full Court has misunderstood really what is involved in consideration of the representations and, as I say, we would understand that what Justice Bell said in Drame, in detecting difficulties in reconciling Ali with Applicant 270, relates to that difficulty.

If all of that is right, then it follows that either the specific representations that raised a potential breach of Australia’s non‑refoulement obligations were not required to be considered by the delegate in the way for which our friends contend, that is seemingly that the delegate needed to address the merits of the claim and perhaps its consequences or, alternatively those representations were sufficiently considered by reading, understanding them and then giving a rational and reasonable reason for putting them to one side. So, if that is ‑ ‑ ‑

KIEFEL CJ: Sorry, I am interrupting you. Finish your submission and I will ask you the question.

MR LENEHAN: I was just about to identify the way your Honours should answer the questions. If the first way of putting that is right, then your Honours would answer 1, 2(a) and 2(b) no; if the second way of putting that is accepted then your Honours would answer at least 2(a) and (b) no and may need to give a speaking answer to question 1. I am sorry, your Honour.

KIEFEL CJ: If I could take you back to the Full Court of the Federal Court cases, what do you say about the more recent decision in FAK19?

MR LENEHAN: Your Honour, the specific ground that is addressed at 95 to 106 did not directly arise in those cases because it was not put really as an “obligation to consider” type case. It was more in the misunderstandings ‑ and various misunderstandings were alleged ‑ kind of case and I am about to come to why we say that that is not right, and I will, in the course of doing that, identify where we say FAK19 also went wrong.

So, in doing that, can I then go first to – so I am now with question 2(c) and your Honours will have seen that there are two misunderstandings that Mr Knowles said involved error. The first is that the delegate made an erroneous assumption about how non‑refoulement obligations would be considered in the two processes. The second is that the delegate made an erroneous assumption about the extent to which non‑refoulement obligations would be considered under those processes. For reasons that I will develop, we say that, really, those errors substantially overlap. But I think Mr Knowles, in fact, accepted that, really, this whole aspect of this case really also overlaps with the first.

The first error – and this is one of those which…..FAK19 and just to tell your Honours where you see that in FAK19, it is at paragraphs 114 to 116 and then 139 to 142. This reasoning – and, again, this will hopefully partially answer your Honour Justice Gleeson’s question…..notably BCR16, Omar at first instance, and Justice Moshinsky’s reasons in DGI19. All of those are in the bundle but I am going to make sure I give your Honours a full…..before I sit down. Then, in Ali, it appears at paragraph 107 to 112. In those decisions ‑ ‑ ‑

GORDON J: Sorry, Mr Lenehan, that was far too quick for me and I did not hear what you had to say. Could you just speak a bit more slowly so that I can write them down. I just want to make sure I am clear. You said BCR16, you said Omar at first instance.

MR LENEHAN: BCR16.

GORDON J: Omar at first instance.

MR LENEHAN: Yes.

GORDON J: Justice Moshinsky in DGI19.

MR LENEHAN: Yes.

GORDON J: What are the paragraphs in Ali?

MR LENEHAN: In Ali it is at 107 to 112.

GORDON J: Thank you.

MR LENEHAN: So, the reasoning which is similar in each of those cases emphasises statements in the Minister’s or delegate’s reasons to the effect that it is unnecessary to determine whether the person is owed non‑refoulement obligations because of the protection visa mechanism expressly provided for by the Act. Of course, your Honours have a similar statement to that effect in paragraph 48 of the reasons.

Now, the argument in those cases then goes this way. It is said that that assumes that the consideration of that issue would be the same under those processes if considered under section 501CA(4). Really for the reasons that I have developed before in relation to ground 1, we say that those decisions misunderstand what is being done in this kind of reasoning.

What is actually being said in the statements in paragraphs 48 and 49 is not that a protection visa claim would involve the same analysis. As I sought to make clear before, it is rather being said that this is the way the key mechanism Parliament has provided for a claim of that kind to be considered and that it is appropriate to leave matters involving those sorts of claims to be considered via that mechanism in circumstances where the plaintiff is able to make such an application if she or he wishes.

Again, we say, that is entirely consistent with the observation made in Huynh – that Parliament intended that issues of this kind would be divorced from the factors required to be considered for the purposes of making decisions under 501 and, likewise, in 501CA(4). If I turn to the specific reasons that are given here, which are somewhat similar to the reasoning in those other cases that I have identified, it is very clear, we say, that the delegate did in fact understand the nature of the two different statutory processes.

You see that in particular from paragraph 49 which refers to that process – the protection visa process – involving the consideration of:

protection-specific criteria . . . other criteria, including character‑related criteria.

So, that immediately indicates that the delegate understands that the grant of a protection visa involves consideration of a series of criteria which a person will either meet or not meet, which is what our friends then identify as the dichotomous operation of those criteria.

All of that seems to us to be understood by the delegate but the delegate also goes on and refers to the order in which those criteria will be considered under a further direction made under the Act – that is Direction 75 – and that is – under that direction – that:

refugee and complementary protection criteria –

will be considered:

before considering ineligibility criteria -

So, that also indicates that the delegate was well aware that a person may well fail to obtain a protection visa, even if they satisfy the “refugee and complementary protection criteria” by reason of the operation of other criteria.

It is also, we say, clear from the reasons as a whole, which Mr Knowles took your Honours through, that the delegate was well aware of the quite different decision‑making process involved in section 501CA(4) – and was well aware – because this is the process that the delegate in fact undertook – that it involved what our friends call a weighing process, as opposed to one driven by dichotomous criteria.

So, again you see at paragraph 14, there is reference to having considered factors weighing for and against revocation and Mr Knowles took you to the endpoint of that at paragraph 68, which says that the factors against outweighed those in favour. Of course, the delegate also recognised that those considerations might include non‑refoulement obligations – see again paragraphs 46 through to 49 – but sifted those matters out of the matters to be weighed.

What the delegate otherwise did was to weigh up the series of matters that Mr Knowles showed your Honours and then concluded the weighing process in the way that I have just identified in paragraph 68. So, we say there is nothing there to suggest that the delegate misunderstood that process, confusing it with what was involved in the protection visa process by considering that it in fact involved some sort of binary criteria akin to those involved in the protection visa application.

So, one takes from those two things that there is nothing to suggest that the delegate misapprehended the nature of either the power that she or he was exercising or thought it in any way akin to what would happen under section 65 of the Act. We say for those reasons that misunderstanding is not made good.

Can I, before I leave that matter, say that it appears in some aspects of the reasoning of the decisions in the Federal Court that really what is involved in that kind of ground is the same point that underlies question 1 here ‑ that is, if a representation is made regarding non‑refoulement obligations, the Minister really has to determine whether or not they are owed, or at least consider their merits, as an aspect of exercising that power.

To give your Honours the reference, you see that in Justice Mortimer’s first-instance decision in Omar, which is one of the decisions that I have said we would say your Honours would find is wrong. I will not take you specifically to it, but I will note that it is behind tab 51 and then at paragraphs 45 and 46 you will see reasoning which is quite similar to the reasoning I identified before in Ali at paragraph 101 talking about the impermissibility of carving out things from the representations. So, to some extent at least this misunderstanding may – and as I say, Mr Knowles seemed to some extent accept this – overlap with what is being dealt with under question 1.

Can I then come to the second asserted misunderstanding and that is that the delegate made an erroneous assumption about the extent to which non‑refoulement obligations would be considered under the two processes. To identify again at the outset where your Honours see these kinds of grounds dealt with in the Federal Court, you have the Full Federal Court in Ibrahim, again Justice Moshinsky’s decision in DGI19, also the last ground dealt with in Ali, and then a similar ground was upheld in FAK19 at paragraphs 117 to 126. We say again, to answer your Honour Justice Gleeson’s question, that all of that reasoning is wrong.

Your Honours have already heard that it essentially turns on the difference between Australia’s non-refoulement obligations as implemented, as opposed to those which exist in international law and we accept in that regard that they differ from and are narrower than those in domestic law in a number of respects. As Mr Knowles notes, the differences are usefully summarised in FAK19 at paragraph 118.

Our response to that submission is the delegate’s reasons at 48 to 49 do not suggest that he or she conflated the criteria. What again the delegate was rather doing was considering that it is not necessary to take into account non‑refoulement in reaching the state of satisfaction under section 501CA(4) because those of Australia’s non‑refoulement obligations that had been implemented in Australian law will be considered by a decision‑maker in the context of determining the protection visa obligation.

Our friends seize on the words in paragraph 49, the reference to non‑refoulement obligations being fully considered in the course of processing any protection visa application. But that statement and paragraphs 46 through to 49 as a whole need to be read in context, including the context defined provided by the…..there, first again the point…..Justice Steward’s point, that 14.1(1) ‑ the digression is horribly numbered but it is the first paragraph under 14.1 – reflects a view of those obligations seen through, I have called it the lens of the Act.

So, the whole of this part of the reasoning involves the delegate looking at non‑refoulement obligations in that way and is not then referring to some broader amorphous mass of things that are not necessarily incorporated into Australian law.

The second important contextual feature is the reference in paragraph 49 of the reasons to the further ministerial direction that I have noted before, and that is Direction 75, and your Honours will see the history of the making of that direction is perhaps usefully summarised in Ali at about paragraph 58.

Can I say what that history was in this way. It was essentially a response to aspects of the reasoning in BCR16, and the main error found in that case was that the Minister had said that it is unnecessary to consider non‑refoulement because it will be considered in a protection visa context, but as things existed at that time, in 2017, there was no requirement to look at any particular criteria in the protection visa context in any order.

So, it was possible, at that stage, to refuse a protection visa on character grounds before you even turned to look at whether protection visa obligations were owed or not owed. That matter was said, in BCR16, to indicate that the Minister had misunderstood the statutory scheme in a different way, because the Minister had assumed that those obligations would be looked at, but the fact was that they may not be.

So, as reported in Ali, that problem was sought to be fixed by Direction 75 whereby the Minister mandated a particular order of consideration of events, and in the decision that Justice Gordon referred to earlier, that is DRB18, the Full Federal Court accepted that in fact it did rectify that particular problem.

So that then puts in context what appears in the reasons at paragraph 49, because in saying that non‑refoulement would be fully considered, or fully assessed - “fully considered” appears at 48, and “fully assessed” at 49, that is the language that our friends seize on - the delegate is really saying no more than that the ministerial direction had altered the position that previously applied and gave rise to the error in BCR16. It altered it by requiring decision‑makers first to assess protection visa applicants against the criteria in section 36(2) before considering any ineligibility such as character‑related criteria.

The point was really this. Insofar as Australia has domestically implemented those obligations, they will be fully considered in the sense that the process will not be truncated by peremptorily applying ineligibility criteria. So we say that that all indicates that the second so‑called misunderstanding was likewise not made here, but can we also embrace the point that was made by Justice Steward to Mr Knowles in argument, that is the plaintiff has not specifically identified any difference, any specific difference, between the broader and narrower notion of non‑refoulement obligations that might have in fact made a difference to the assessment of his claim.

For example, he does not say, as was said in Ibrahim, that the application of the internal relocation principle was one which was likely to lead to any different result in the assessment of any protection visa application, and it is difficult to see how it could, given that the material before the delegate put that his membership of the Denka tribe was likely to lead to persecution throughout Sudan. Mr Knowles, in response to that questioning said frankly that he cannot say whether any difference, whether any of that would have made a difference, only that it is possible.

We say, given that on questions of materiality, our friends bear the onus, that position does not get them to where they need to be, and perhaps more than that, your Honours will recall that Ms Mintz also referred to the protection visa decision as perhaps informing the counterfactual for materiality purposes, but if that is so, what that decision tells your Honours is that really there is no material difference because, of course, the applicant was found to satisfy both what I will call the Convention ground and also the complementary protection ground as implemented in the Act.

So, can I say that all of that leads to this point. It is a point that was in fact noted in the Full Court’s decision in Ali, but not determined, but at paragraph 34 and again at paragraph 116, it was seemingly accepted that a real question of materiality would potentially arise in those circumstances.

I should also say that their Honours also say that Justice Moshinsky may have reached a different view in DGI19, but we say that the tentative view apparently reached by their Honours in Ali would also be accepted here as a reason for saying that the second misunderstanding is not made good.

Now, having said that about Ali, what the court then goes on to do is to say that it is not really those differences so much that reveal the nature of the error, it is really that – not at the stage of the protection visa application, a consideration of matters such as the impact of non‑fulfillment of those obligations on Australia’s reputation.

But articulated in that way, this sort of misunderstanding is really just a variant of the first. It is some sort of a failure to appreciate the differences between the two statutory schemes. There is nothing in the reasons which suggest that the delegate made that sort of error, and we would say that that takes things no further. Then for all of those reasons we would also say that your Honour’s should answer question 2(c), no.

Our last point relates to question 3, and your Honours will see for the purposes of…..that the delegate did make one of the two errors or misunderstandings asserted by our friends, and what we essentially say is that that may well, if that is right, be an error of law, but any error will be an error, we say, within jurisdiction.

Essentially, that is because, we say, appreciating the differences between non‑refoulement and international law, and as implemented in the separate protection visa aspects of the Act or appreciating that section 65 involves a particular decision‑making path involving the application of binary criteria, those things do not amount to an inviolable restraint on the valid exercise of power in section 501CA(4). Essentially that is because they are not sufficiently central to that statutory task.

Now, we accept of course that cases like Hetton Bellbird say that administrative decisions and, of course, a series of more recent decisions, say that administrative decisions need to be made under a correct understanding of the law, but we say those statements do not take our friends as far as they need them to.

We say the essential point that comes out of those authorities is really this. It may be a jurisdictional error for a decision‑maker to exercise a statutory power or an incorrect understanding of that power. However, our friends are really going beyond that. Their misunderstandings do not relate to the test to be applied under section CA(4), or to the immediate legal effects of such a decision. What they relate to instead is the likely course of consideration of a future visa application that a person may or may not make. We say that would require an extension of the existing authority, which we say would not be undertaken because it would effectively mean that any material error of law was jurisdictional.

So, statements, we say, like Hetton Bellbird, really have to be understood in the terms that they were made, so when Chief Justice Lathan speaks of the law under which a decision‑maker acts, that is a reference to the body of law which confers and constrains that power. It does not mean that jurisdictional error is necessarily demonstrated by pointing to an error of law in the construction of another provision in the Act, or an international instrument that in some way features in the reasoning of the decision-making – the reasoning of the decision‑maker.

We say that the essential idea is neatly encapsulated in your Honour Justice Gageler’s statement in Probuild that we have referred to in our written submissions, where your Honour spoke of the law…..decision….. …..was said to be…..and we say that point of law.

Now, we do have to deal with perhaps two decisions in the line of authority that I have identified, that is, Patterson and Graham, which a number of the cases considering these sorts of errors have relied upon. So, for example, you see that in the Full Court’s decision in Ibrahim at paragraphs 52 to 56, and then more recently in FAK19 at paragraphs 114 to 116.

It is true in those decisions that there was found to be a jurisdictional error on account of a misunderstanding of another provision of the Act. But what we say is it is still properly regarded as an error as to the law applicable to the decision to be made because in each of those cases the error went to the immediate legal effects or operation of the decision.

So, for example, in Patterson the error arose because the cancellation power in section 501(3) was exercised on an incorrect understanding that its effect was what I will call only provisional because the prosecutor would have the opportunity under section 501C, the Minister thought, to make representations seeking revocation of that decision. Justices Gummow and Hayne described that error as:

a misconception as to what the exercise of the statutory power entailed –

They said that at paragraph 196. So, it was wrong in a fundamental way about the nature of what the Minister was doing in exercising the power, and the Minister did not appreciate in that case that it would affect the rights of the prosecutor. We say the same is really the explanation for Graham in the way that we sought to explain in our written submissions.

GAGELER J: Mr Lenehan, can you hear me?

MR LENEHAN: Yes, your Honour.

GAGELER J: Could I just ask for a point of clarification. Does this submission proceed on an acceptance, one, that you have an error of law; and two, that the error is material in the sense that the decision might have been different had the error not been made?

MR LENEHAN: Yes, it must proceed on both those bases.

GAGELER J: Thank you.

MR LENEHAN: So the contrast between that line of authority as I have explained it and the alleged misunderstandings here is that here those misunderstandings related not to the test to be applied under section 501CA(4) or to the legal effect of a decision made under that subsection but, as I have said, to the likely course of consideration of an entirely separate statutory process, a different visa application that the plaintiff might in the future choose to make. So, we say that, if there is an error and it is a material one, accepting Justice Gageler’s point, it is not a jurisdictional error. So, for those reasons, we say your Honours should answer question 3, no.

I am now coming back to deal with Justice Gleeson’s question and - I was about to read your Honours the wrong note, but it is the pink note which is the important note. Perhaps with the Court’s leave, given this is obviously an important issue, can I give your Honours a list of these decisions and then perhaps identify more precisely in each what aspects…..we say….. We could deal with that within a short space of time.

KIEFEL CJ: Yes, if you could do a note, say, within five working days.

MR LENEHAN: Yes.

KIEFEL CJ: Then, Mr Knowles, five working days for any response, if necessary.

MR LENEHAN: …...BCR16 in the Full Court, Ibrahim in the Full Court, Ali in the Full Court, Justice Mortimer’s first instance decision in Omar, Justice Moshinsky’s first instance decision in DGI19, and then the recent Full Court decision in FAK19.

KIEFEL CJ: Mr Lenehan, are you able to say which was the first of those cases where you would say the wrong turning occurred?

MR LENEHAN: The first was BCR16, your Honour.

KIEFEL CJ: Thank you.

STEWARD J: Can I ask, Mr Lenehan, does your shopping list include Hernandez, or GBV18?

MR LENEHAN: No. Your Honour, I think it should, is the answer. So, we might provide a complete list. What Mr Kaplan tells me he has done is to give your Honours the key cases, but I think we should be more comprehensive. On question 4 and the extension of time, your Honours will have seen from our written outline that we do not seek to be further heard on that question. Unless your Honours have any further questions, those are the submissions of the Minister.

KIEFEL CJ: Thank you.

GLEESON J: Mr Lenehan, I just had a question in relation to Chief Justice Allsop’s identification in Hands of what is required for genuine consideration. Did you take any issue – you have not said anything about that today – do you take any issue with that – paragraph 3 of his Honour’s reasons?

MR LENEHAN: Your Honour, I do not think it is necessary for me to do so for the purposes of this appeal and we certainly have not in our written submissions. But we do say that the question of consideration and the nature of the duty imposed by section 501CA(4) is to be understood in the way that I have identified. I do not understand his Honour’s reasons in that well‑known paragraph to be inconsistent with that.

KIEFEL CJ: Yes, thank you, Mr Lenehan. Any reply, Mr Knowles?

MR KNOWLES: Just briefly, your Honours. In relation to…..section 501CA(4), there is no dispute that it has a broader meaning and, therefore, that non‑refoulement obligations can fall within it. In this instance…..was posited as a possibility by your Honour Justice Gageler. It suggested that the defendant’s delegate found that even if it were made out that there were non‑refoulement obligations, it would not be a matter going to another reason and, therefore, it should not be something that is given any weight.

We would say, with respect, that that is not what was found on a fair reading of the reasons when one has regard to other parts of the reasons that actually do indicate where weight was given – and, even if it was, it was not a reasonable or rational way to proceed, given that it proceeded on and rested on a misunderstanding of the respective statutory powers in section 501CA and section 65.

That is brought to bear, we would say, by reference to the expressions in the last sentences in paragraphs 48 and 49 of the reasons where one sees on the one hand the suggestion that there would be full consideration – or full assessment – of protection of the non‑refoulement obligations that were the subject of the representations in any protection visa application. That only is the case firstly in respect of the nature of the non‑refoulement obligations themselves, but more so – and perhaps more to the point – in terms of the way in which the decision‑making process proceeds.

In terms of what was said by my learned friend in respect of international law, just because the protection visa criteria provide for the importing of international law concepts into protection visa criteria for the grant of a protection visa, that in no way, we say, has a bearing on the ability to consider that elsewhere – including in the case of a matter going to another reason for the purposes of section 501CA – including where there is the ability still to apply for a protection visa.

That protection visa mechanism is not and does not provide a substitute for consideration of those non‑refoulement obligations…..matter that might not even of itself be another reason, but together with the other representations made goes to another reason why the original visa cancellation decision ought to be revoked.

It cannot be said on any proper understanding of the operation of the Act, and in particular section 501CA, that that provides a proper substitute for – pardon me, that an application for a protection visa provides a proper substitute for consideration of non‑refoulement obligations as a matter that goes to another reason for revocation of visa cancellation.

We say that the reason why your Honours should be well satisfied that that was what underpinned the reasoning at paragraphs 48 and 49 is that that was the basis why it was not considered in the context of this decision. It was considered that there was no need to do that, it was unnecessary, because there was an ability to apply for a protection visa, but it was necessary to determine it in this context, because it could be considered in a different way, plainly, on a proper understanding of the law, to how it could be considered in the context of a protection visa application.

Otherwise, in respect of the reliance that is placed by my learned friend on the decision in Huynh, all we would say about that is that it was a case about section 501 of the Migration Act. Section 501 does not have any express indication of representations and the role that they play in decision‑making under that provision. Also, Huynh was a case about mandatory considerations, not a case, as arises here, going to a specific statutory context in which, as I say, representations and, we would say, their consideration, are central.

Just in terms of the points going to the misunderstandings, I should just say, while we say on the one hand that they can be seen to inform or explain the error, we also say that they stand separate and additional to that earlier error. We do not want to be misunderstood on that. We do say they are separate and independent bases on which we rely to say that there was jurisdictional error affecting the delegate’s decision.

We do maintain that there was a conflation of the different concepts of non‑refoulement obligations of international law and protection obligations being how those non‑refoulement obligations are incorporated into domestic law.

Again, just referring back to paragraphs 48 and 49, one sees in 48 a reference to non‑refoulement obligations being considered in the context of a protection visa application and at 49, at the end of that paragraph, a reference to protection claims being fully considered in such an application. We do say that it was – it was material in that it could have made a difference. Certainly, one cannot exclude the possibility that it could have made a difference.

But, perhaps more significantly – significant to this issue of misunderstandings – is the misunderstanding about section 501CA, and the decisional freedom that is available to a decision‑maker in that provision compared to what one finds in section 65 with the dichotomous operation of visa criteria.

We do say that when the reasons are read fairly, that is what was contemplated by the delegate in saying that it was unnecessary to determine – or deal with this matter under section 501CA, because it could be dealt with elsewhere, there was a direct drawing of comparison or substitution of one process for the other and that gives the lie to the proper understanding of section 501CA.

It shows that in fact the decision might have proceeded on misconception about the provision…..decision‑maker was exercising power being section 501CA and on that basis we say that the matter falls squarely within the Hetton Bellbird Collieries‑type of case that was mentioned there at page 430 of the report.

The only other thing that I would seek to say, just in relation to what is said about international law, it is not part of our case to say that a decision‑maker under section 501CA making an error as to what international legal obligations were owed, that that would give rise to jurisdictional error as such.

It is part of our case that that representation going to the existence of obligations under the international law has to be dealt with because it is a representation that was not insubstantial and was not, without clear articulation, in terms of what was put forward by the plaintiff in his representations made to the Minister in support of revocation of visa cancellation.

In any event, as my learned friend acknowledged, there are other matters to – pardon me, I withdraw that. The only other thing we would say about the international law issue is that, so far as we understand it, what is contemplated at paragraph 14.1(6) of Direction No 65 in terms of an international treaty obligation assessment, is precisely what is described by that, and that is that it looks at international treaty obligations, not international treaty obligations as incorporated or reflected in section 5H and 5J of the Act. But that is a minor point, and the…..make is that, really, there was a clear misconception of the relevant power in terms of section 501CA, in terms of the misunderstandings. Otherwise, we have nothing further in reply. Thank you, your Honours.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 9.30 am on Thursday, 2 December for the pronouncement of orders and otherwise until 10.00 am.

AT 3.39 PM THE MATTER WAS ADJOURNED

[2021] HCATrans 203

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Immigration

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