WKMZ and Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2021] HCATrans 195

[2021] HCATrans 195

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M32 of 2021

B e t w e e n -

WKMZ

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 12 NOVEMBER 2021, AT 10.36 AM

Copyright in the High Court of Australia

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

MR N.M. WOOD, SC appears with MR C.N. VINEY for the applicant.  (instructed by Victoria Legal Aid)

MR P.D. HERZFELD, SC appears with MR N.D.J. SWAN for the first respondent.  (instructed by Sparke Helmore Lawyers)

KIEFEL CJ:   There is a submitting appearance for the second respondent.  Mr Wood, I appreciate that you cannot see the screen, but it is the Chief Justice speaking and I am sitting remotely with Justice Gageler in this matter.  We can hear you clearly.  Yes, Mr Wood.

MR WOOD:   Thank you, your Honour.  This case raises a difficulty of a kind that commonly confronts the Tribunal.  The applicant manifestly failed the character test and various discretionary matters pointed in favour of not revoking the mandatory cancellation decision.  However, there was evidence, and ultimately the Tribunal found that non‑refoulement obligations were owed with respect to the applicant under what I will call the CAT and the ICCPR.  The issue is, should the applicant ultimately have the visa that was cancelled returned to him? 

Prior to 2014 and the insertion of 197C into the Migration Act, a solution presented.  The visa that had been cancelled could remain cancelled.  The applicant would not be refouled, because of an implied limit on the removal power under 198, and the consequence of the maintenance of the cancellation decision would therefore be indefinite detention. 

In our submission, clause 14.1(6) of Direction 79 that applied when the Tribunal decided this case reflected that view of the law, albeit that it was errant because 197C had since been enacted.  Since the Tribunal decided this case, Direction 79 has been replaced by Direction 90.  The element of Direction 79 that indicated that indefinite immigration detention would be a consequence of an applicant having their visa remain cancelled, notwithstanding them being owed non‑refoulement obligations, has correctly dropped out. 

What is common, however, between Direction 79 and Direction 90, the same idea expressed in different words, is what the Tribunal described in this case as, in effect, an assurance that Australia will not, as a matter of policy and practice, remove a non‑citizen in breach of Australia’s non‑refoulement obligations.

KIEFEL CJ:   Mr Wood, is the respondent then correct in saying that if special leave were granted and your client succeeded on appeal and the matter was remitted to a different tribunal, that tribunal would be obliged to apply a new Direction 90 and, therefore, be bound to conclude that your client would not be refouled?

MR WOOD:   No, your Honour.  It is true that, if my client were to succeed on appeal, the matter would be remitted to the tribunal that Direction 90 would apply but, neither Direction 90, nor the current Act with the amendments to 197C, would have the consequence that my client could not be refouled.  The amendments to 197C hinge on the making on what the Act calls now a “protection finding”.  A protection finding can only be made with respect to a protection visa application.  My client has never applied for a protection visa.  He, therefore, does not get the benefits of the amendments to 197C.  So, he is a person who held an offshore humanitarian visa, unaffected by the amendments to 197C. 

KIEFEL CJ:   Mr Wood, I think – at least the first respondent points out – that the Tribunal held that it was likely that your client would be applying for a protection visa.  Is that the case?

MR WOOD:   That is the case when it found that, yes.  That, however, your Honour, is not a reliable assumption that could be made following the amendment to 197C because that finding was made at a time when prior to the amendments to 197C if my client applied for a protection visa today – as the Tribunal found – he would likely fail.  His protection visa would likely not be granted on the basis that he would be characterised as a danger to the Australian community in light of his criminal record.

The consequence, therefore, if he applied for a protection visa, would be likely refusal and, thereafter, indefinite detention because a protection finding might be made – assuming the Tribunal’s predictions were correct – a protection finding would be made, he would, therefore, be caught up in indefinite immigration detention of the Al‑Kateb true kind.

The Tribunal, when it decided the case, obviously was not assisted by an appreciation of the amendments which were to come in 197C.  So, there can be no safe assumption – indeed, and there is no evidence ‑ that my client would apply for a protection visa.  What he seeks is the re‑enlivenment of the offshore humanitarian visa that he hitherto had.

The central question posed by the application is, essentially, concerned with the limits of the capacity of the Tribunal, rationally and lawfully, to make speculations or predictions about the likely course of decision‑making – particularly on our case – by the Minister personally by reference to highly evaluative criteria that involved political judgments, that is, being the public interest test.

We seek to set aside two what we regard as distracting matters.  First of all, no doubt, as the Full Court held, the tension can be rendered indefinite if there are true practical impediments to effecting a removal.  That is long‑established but it has also been long‑established  ‑ and we have cited NATB and I do not understand this to be contradicted by Mr Herzfeld – that in long‑established Federal Court authority it has been held that the consequences of what might befall a person after they are removed to another country, and in particular whether the process of removing them to another country would involve a breach of Australia’s non‑refoulement obligations, are not something that bears on whether or not it is reasonably practicable to remove someone.

Practicability is essentially concerned with logistics, there being no evidence in the case before the Tribunal that there was any issue bearing on the practicability of removing the applicant to South Sudan that can therefore be set to one side.

No doubt as well, the second matter we would seek to set to one side, we accept that the Act would accommodate the possibility of the detention of the applicant for a period of time whilst consideration was being actively given to whether or not what this Court described in Plaintiff S10 as a “dispensing power” might be exercised – for example, section 195A.

But, ultimately, that process of consideration would have to come to an end of consideration and the obligation to remove the applicant and, in effect, thereby refoule the applicant to the place of his nationality would only be avoided under the Act if the dispensing power was exercised or otherwise a visa was granted.

There are two ways logically by which the applicant might thereby in the future obtain a visa so as to therefore cut across what would be the automatic obligation that would be imposed on an officer on behalf of the Commonwealth to remove him as soon as reasonably practicable.  The first possibility is an application by my client for a protection visa, which is a topic that your Honour just touched on a moment ago; the second is the possibility of the favourable exercise of a dispensing power by the Minister.  There are no other possibilities.

With respect to that first possibility, the Tribunal did find on the facts of this case, and we say that this was rationally open to it to do so, to find that in light of the long and serious criminal record of my client it was a likelihood, it was a rational inference, that the applicant would fail the disqualifying criterion in section 36(1C) of the Act.  That disqualifying criterion picks up the same language that is used in Article 33(2) of the Refugee Convention, where it is an exception to the non‑refoulement obligation.

The Tribunal found, from 258 and following, in light of the applicant’s criminal record that he would likely fail that disqualifying criterion, notwithstanding that we accept there is a degree of evaluation involved in assessing whether or not the applicant is, indeed, a danger to the Australian community.

That left, on the material before the Tribunal, only one lawful way that the applicant might not be exposed to the obligation to remove and indeed refoule him and that was the exercise of what we have called again the “dispensing power” of the Minister.  There are a number of them, but it is convenient for simplicity to focus on 195A as being a possibility.  It is in that respect where, in our respectful submission, the Tribunal’s reasons and, as I will come to in a moment, the Federal Court’s reasons are affected by a fundamental contradiction. 

If I can take the Court in the materials to the Tribunal’s reasons and in particular to paragraph 221, which appears on page 69 of the application book.  In this paragraph we submit the Tribunal correctly identified the availability of dispensing or discretionary powers, which are all non‑compellable, personal powers conditioned on the formation of a state of satisfaction by the Minister about what the public interest is.  The Tribunal identified those powers in 221, but then went on to say:

In circumstances where a non‑citizen’s visa has been cancelled under section 501(3A) of the Act for having a substantial criminal record, it may be difficult for the Minister to think that it is in the public interest to grant such non‑citizen a visa ‑

Setting aside that comment ‑ and we acknowledge of course that it is possible that the Minister might think it is in the public interest to grant such a visa to avoid breach of non‑refoulement obligations ‑ the ultimate point which the Tribunal correctly made in 221 was that:

whether [or not] the Minister will exercise a non‑compellable discretion is speculative –

and we interpolate that the Tribunal saying that in light of Full Court authority suggesting that decision‑makers ought not speculate about the likely outcome, if indeed there is even a consideration of the exercise of such a dispensing power.

There are numerous reasons why such speculation cannot rationally or lawfully be done, certainly not leading to the conclusion that such powers would likely be exercised.  But fundamentally, it reflects the fact that assessment of the public interest, that task being vested exclusively in the Minister, involves a broad assessment or a political judgment about which there is no rational way, in advance, for the Tribunal to confidently predict the outcome.

In that respect, it has not been said by the Minister, as we understand it, either in the Tribunal or in any of the court processes, that the so‑called policies or assurance manifested in Direction 79, or indeed even now in Direction 90, actually evidences a personal decision by the Minister to consider the exercise of dispensing powers with respect to persons such as the applicant, or in any particular cohort.

Therefore, the Tribunal is faced with a circumstance where there is an assurance, so‑called, but unfounded and unanchored in fact or law to the only way that power could be exercised in a way that would avoid removal and therefore refoulement, being a personal exercise by the Minister of such a dispensing power, based on his or her assessment of the public interest.

Turning back to the Tribunal’s decision, the contradiction emerges at paragraph 266 of the Tribunal’s reasons.  Notwithstanding, we say, the Tribunal’s correct disavowal of speculation about the exercise of personal powers by the Minister, at 266 – and this is at page 82 of the application book – the Tribunal indicated that unlike Justice Kerr in the case of BDQ19, it was “not so confident”:

that Australia would never [act in] breach [of] its non‑refoulement obligations ‑

But nevertheless inexplicably, or in any event we say unlawfully, concluded at 268 that it was “unlikely” that refoulement would occur, and at 269 that there was “only a low risk” that refoulement could occur.  And we say that reflects one of either of two errors.  Either a failure to appreciate that the only way that refoulement could lawfully be prevented, in light of the other findings that the Tribunal made, was by the exercise of the dispending power.  Or, alternatively, two, speculation, which the evidence could not possibly lawfully support, that not only would such dispensing powers be considered by the Minister, but indeed they would be exercised and result in the grant of some kind of visa, for example under 195A, which would therefore cut across the power to remove and therefore refoule him under 198 read with 197C.

The vice with the Tribunal’s reasoning, we submit, ought to have been recognised by the Full Court, and indeed the flaw with the reasoning of the Tribunal is even more starkly revealed by the Full Court’s own reasons.  If I can take the Court to the judgment of the Full Court in just two paragraphs.  First of all, I would invite the Court to look at paragraph 124 of the majority’s reasons, and that appears at page 167 of the application book.

KIEFEL CJ:   I am sorry, Mr Wood, I did not hear the paragraph number.

MR WOOD:   Paragraph 124 of the majority’s reasons.

KIEFEL CJ:   Thank you.

MR WOOD:   In the first sentence of 124, the majority, correctly, in our submission, accepts that:

s 197C also does not preclude –

what I indicated earlier was a capacity of an applicant to be detained pending active consideration by the Minister of the possibility of the exercise of dispensing power, for example, under 195A.  We say the first sentence in substance reflects that correct proposition.  But the majority go on to say:

However, as Rares J’s reasons in FRH18 made clear, it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person –

I interpolate here under 195A:

who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful.

So, this is the majority suggesting that it is difficult to see – and indeed this is so on the material that was before the Tribunal – how it might be rationally speculated that the Minister would, following the conclusion of the non‑revocation process, do an about face and grant the applicant a visa, thereby allowing him to live in the community, and pose to community all the risks that was the very basis upon which the Minister vigorously resisted that the applicant keeping the visa that he already had.  And, in the final line of 124, their Honours consistently said:

Nevertheless, the scheme permits a visa application in some circumstances, and it has been accepted that the duties in s 198, read with s 197C, should be read as accommodating time for such an application, fruitless as it might appear to be.

Again, that is correct.  The Act does contemplate both, as I have indicated earlier, the possibility of a protection visa, but more relevantly for present purposes, it contemplates the possibility of a process of consideration by the Minister, albeit that such a consideration is obviously not compellable and not obligatory.  But, what matters out of 124 – and this is repeated in a paragraph I will come to in a moment – is that their Honours regard that as best as one can see – a forlorn hope of a person in the position of the applicant.

If I can move to paragraph 136 where, consistently, but exposing the contradiction in the reasons, the majority say that:

No party has suggested that it is unlawful per se for the executive to develop and implement an executive policy . . . that reflects Australia’s international obligations –

and then importantly in the second sentence:

As all the authorities have recognised, there are a number of executive options available for genuine consideration after a person has exhausted her or his options to challenge a visa refusal or cancellation –

I interpolate here, however, the only options that would result in the displacement of the obligation to remove are options that result in the grant of a visa, whether by a protection visa application process, for example, or by the exercise of a dispensing power, that is the only way the grant of a visa to displace the operation of 198 read with 197C.  And then coming back to their Honours’ judgment, their Honours say, cohering with what they said at 124, that:

there are some that could not rationally be said to be likely to result in a favourable outcome, as Rares J pointed out –

And yet, the fundamental problem with the case is that at 149 the majority, notwithstanding their own assessment which coheres, at least to some extent, with the Tribunal’s own concern about the unlikelihood of the Minister doing an about‑face, nevertheless, the majority of the Full Court at 149 in particular hold that it is open to the Tribunal, in effect, to act on the assurance reflected in the direction.  But as soon as one appreciates that the only way that the assurance can be given any precision or meaningful content is the outcome, a positive outcome of the exercise of dispensing power, then the contradiction both in the Tribunal’s reasons and the Full Court’s approach is exposed.

Setting aside what we have identified in writing and have sought to highlight as the fundamental flaw in the analysis of the Tribunal and the Full Court in this case, we submit that a reason why it is important that this be resolved is because, on many occasions, by virtue of the approach that the Minister takes, and by virtue of the architecture of the Act, where non‑refoulement obligations are identified, tribunals are called upon to speculate about how decisions might be made in the future.  This is a stark example of where, we say, its speculation cannot be reconciled with the Act or the evidence, but the limits of the power of the tribunal as a decision‑maker to speculate about future decision‑making processes as they bear on the appropriate decision to be made in this case is one which calls for the Court’s attention.  Thank you.

KIEFEL CJ:   Thank you, Mr Wood.  The Court will adjourn to consider the course that it will take.

AT 10.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.03 AM:

KIEFEL CJ:   Mr Herzfeld, we do not need to trouble you.

Given the legislative amendments and the new executive direction, the issues sought to be raised on special leave do not, in our view, involve a question of general importance sufficient to warrant the grant of special leave.  Special leave is refused with costs.

The Court will adjourn.

AT 11.04 AM THE MATTER WAS CONCLUDED