Plaintiff M1/2021 v Minister for Home Affairs

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

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

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

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