FEDERAL COURT OF AUSTRALIA
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
| IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| ALLSOP CJ, BUCHANAN AND KATZMANN JJ | |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. A writ of certiorari issue, quashing the 25 July 2013 decision of the Minister for Immigration, Multicultural Affairs and Citizenship to refuse to grant the applicant a protection (class XA) visa under s 501(1) of the Migration Act 1958 (Cth) (“decision”).
2. A writ of prohibition issue, prohibiting the respondent and his delegates, servants and agents from acting upon or giving effect to the decision.
3. The respondent pay the applicant’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 1972 of 2013 |
| BETWEEN: | NBMZ Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
ALLSOP CJ & KATZMANN J:
1 We have had the advantage of reading the reasons of Buchanan J. We agree with the orders he proposes. His Honour’s explanation of the background, statutory framework and issues (which we gratefully adopt) allows us to express our views shortly.
Background
2 In addition to the matters referred to by Buchanan J, one particular aspect of the applicant’s position should be noted. The basis of acceptance of the applicant’s status as a refugee was that he was a Sunni Kurd in a Shi’ite Islamic state accused by a mullah of the capital crime of apostasy. In other words, the harm the applicant feared, and which was accepted to be well-founded, was of the gravest kind. In making this observation, we should not be taken to be advocating any gradation of worth of claims for asylum under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and entered into force 22 April 1954, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“Refugees Convention”). Nevertheless, the nature and quality of the feared persecution may vary widely from case to case. Of course, in every case it must be of a sufficiently serious nature as to warrant the giving of protection.
Indefinite detention
3 This Court is bound by the reasoning of the majority in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562. The power of executive detention is, of course, limited by the scope and purpose of the underlying power – to decide upon immigration status and then, on a given hypothesis, to deport. But the practical realities of individual circumstances mean that some people may face detention for years, with no end in sight. It may be that the harshness of indefinite detention in a particular case is relieved by the making of a “residence determination” under s 197AB of the Migration Act 1958 (Cth) (“the Act”). Such provision might be employed by the Minister to ameliorate what might otherwise be the physical and psychological burdens on a detainee (relevantly hypothesised here as someone recognised by Australia to require protection under the Refugees Convention) faced with indefinite detention. Indeed, after the incident giving rise to the applicant’s conviction, s 197AB was employed. Nevertheless, the applicant remains in indefinite detention.
4 It is true, too, that the Minister may grant a detainee a visa in the circumstances described in s 195A of the Act. But, as Buchanan J points out in his reasons, there was no reference to the possibility or the willingness of the Minister to contemplate a visa under s 195A in either the briefing paper to him, or in his reasons. We agree with Buchanan J that the applicant is entitled to have this application determined on the hypothesis that he will be indefinitely detained and that any question of a visa under s 195A is, at best, a matter of speculation. There is no foundation for any assumption that the Minister will grant any relevant visa.
5 Of course, the applicant’s detention may end by Australia finding a country willing to take him, in circumstances where there is no risk of refoulement. In the present case, however, there was no material before the Minister to suggest that there was such a country; nor was there any suggestion that there was a country which the applicant had a right to enter and in which to reside for the purposes of s 36(3) of the Act.
The scope of the Minister’s discretion
6 The discretion under s 501(1) of the Act is unfettered in its terms, the usual consequence of which can be seen in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [71] and [74]. The Minister is not bound by “Direction No 55 – Visa refusal and cancellation under s 501” issued under s 499(1) of the Act, which his delegates must follow. Nevertheless, the law imposes certain limits on the exercise of the discretion. The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39; and Huynh at [71]. In the case of an applicant for a protection visa one of those considerations is the statutory (that is, legal) consequences of visa refusal.
7 Any submission that the statutory (that is, the legal) consequences of the refusal of a protection visa was not a consideration which the Minister was required to take into account might be based on passages from Huynh at [71]–[76] (per Kiefel J and Bennett J), Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [127]–[128] (per Heydon J and Crennan J) and Cunliffe v Minister for Immigration and Citizenship [2012] FCA 79; 129 ALD 233 (per Dodds-Streeton J) dealing with the very broad nature of the discretion and its lack of confinement by the text of the section. Further, in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; 139 FCR 292 at [87], the Full Court made a statement to the effect that there was nothing in the legislative structure to indicate that any potential difficulty with removing a non-citizen must be taken into account.
8 None of these authorities provides the answer to the question as to whether the legal consequence of the decision must be taken into account. The breadth of the discretion under s 501(1) can be accepted; a broad discretion remains, however, confined by the subject matter, scope and purpose of the Act: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505 (per Dixon J). The decision of the Minister was made within the framework of the Act. The statutory effect of a decision to refuse a visa is removal of the applicant from the country as soon as practicable, and in the meantime, detention. The focus of the Court in Djalic was upon the asserted factual difficulty of return to the former Yugoslavia, about which there was little evidence. The Court was not directing itself to the legal consequences of a decision to refuse a visa.
9 The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.
10 The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia’s obligation of non-refoulement and the terms of the Act.
Non-refoulement and indefinite detention
11 Buchanan J has set out in his reasons the relevant advice to the Minister as to “non-refoulement obligations”.
12 The place of Art 33(1) of the Refugees Convention is central to the protection to be afforded to a refugee, that is to say, a person who satisfies Art 1A(2) of the Convention. The centrality of Art 33(1) can be seen from its non-derogable nature: see Art 42 of the Refugees Convention. It is the cornerstone of the protection of refugees and those seeking asylum. It does not create a right to asylum, but it comprises a negative obligation to refrain from acts that would risk return to persecution: see generally A Zimmermann, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press, Oxford, 2011) at 1334–1335; and A Grahl-Madsen, The Status of Refugees in International Law (A W Sijthoff, Leiden, 1972) vol 2 at 93–94.
13 Buchanan J has examined the source in Australian law of the obligation upon Australia and the Executive, in domestic law, to honour Art 33. See the discussion of NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; 222 CLR 161; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144; and Plaintiff M47/2012 v Director General of Security [2012] HCA 46; 292 ALR 243, in the reasons of Buchanan J.
14 It is unnecessary to discuss further at any length the source of the requirement, in domestic law, to recognise the terms of, and the obligation of Australia under, Art 33. It is sufficient to observe that, in the manner discussed by the High Court in the above cases, the Refugees Convention has been placed at the heart of the operation of the Act in respect of the consideration of protection visas. For that fact, one need look no further than s 36(2)(a) of the Act, which refers to Australia’s protection obligations under the Convention, and the place of Art 33 as one of those obligations: see in particular the remarks of French CJ and Gummow J in Plaintiff M47/2012 at [39] and [99]–[100] respectively. These considerations, and the recognition that refoulement has potentially grave consequences for the individual, make it clear that, not only would a decision to refoule (in the absence of the matters in Art 33(2)) not be a proper exercise of the power to deport, but a decision made about a protection visa that equivocated about the clarity of the obligation upon Australia in Art 33 is likely to be affected by a serious misunderstanding of Australian law.
15 The briefing note to the Minister was expressed slightly unhappily when it said that “Australia will not necessarily remove a person…to the country in respect of which the non-refoulement obligation exists”. Australia’s unequivocal obligation in international law is not to do so; as discussed in the High Court cases referred to by Buchanan J, and referred to above. Nevertheless, the terms of the Minister’s reasons were predicated upon the unequivocal character of that obligation. Thus, no vitiating error arises from this aspect of the briefing note.
16 What was entirely absent from the briefing note, however, and also from the Minister’s reasons was any attempt to confront the binary relational legal consequence of Australia’s obligation under Art 33 and Australia’s policy of mandatory detention: indefinite detention. It may be accepted, at one level of abstraction, that the Minister was aware of ss 189, 196 and 198 of the Act and of the High Court’s decision in Al-Kateb. That, however, is not the point. A material omission from a briefing paper may affect the decision-making process based on it: Peko-Wallsend Ltd at 30–31, 45 and 65–66. Also, the written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5], [37], [69], [89] and [133].
17 Here, it is to be inferred from his statement of reasons that the Minister did not consider or take into account the fact that, if the visa were refused, the applicant would face the prospect of indefinite detention. This was the effect of Australia’s obligation of non-refoulement and ss 189, 196 and 198 of the Act. For the reasons given above and for the reasons given by Buchanan J this matter could not lawfully be overlooked.
18 The above is a sufficient basis to conclude that the Minister’s decision was vitiated by jurisdictional error in his failure to take into account a relevant consideration and for our agreement with the orders proposed by Buchanan J.
The advice to the Minister in the briefing note as to the question of the applicant’s mental health
19 We agree with the conclusion of Buchanan J, and his reasons therefor, that there was no jurisdictional error or relevant inadequacy in how the applicant’s mental state was put forward to the Minister. There was no relevant misstatement or omission that may have affected the Minister’s consideration of the matter. That, of course, means that the decision was made in the face of a submission, which was not questioned, that at the time of the loss of temper (the “childish tantrum” as described by the sentencing magistrate), the applicant was suffering from clinical depression exacerbated by his detention, uncertain legal status and the possible injury to, or death of, his wife and daughter as a result of a car accident in Iran, which had driven him to attempt suicide or serious self-harm shortly prior to the incident. What is more, the material in the possession of the Department (at least that which is in the Departmental file) is to be treated as being in the Minister’s possession (see Peko-Wallsend Ltd at 31). A copy of the applicant’s medical records during his time in detention was held by the Department. That means that the decision was made in the knowledge (whether actual or constructive) that the applicant had repeatedly tried to harm himself and that within hours of the incident he was assessed by a medical officer as being very distressed and needing to be removed from the detention centre.
Other aspects of the decision
20 In the light of our conclusions it is unnecessary to deal with the other issues raised in argument. The application also throws up other important issues not the subject of argument. It is inappropriate to deal with them in detail or to reach a conclusion about them. Nevertheless, it is appropriate to make some observations, and to say something more about the Refugees Convention.
21 It is important to recognise not only the place of Art 33(1), but also of Art 33(2) in the contextual fabric for decision-making about those who have been recognised as refugees. It describes the serious conditions that justify the return of a refugee to a place where he or she may face persecution. Article 33(2) and the circumstances within it reflect the balance contained within the Refugees Convention between protection of those who need it, and the legitimate entitlement of Contracting States not to be required to give protection to those who pose a danger to the host State and its people.
22 The nature of the assessment of status under Art 1A(2) is generally one that requires close attention to the personal circumstances and position of the claimant. The Refugees Convention is directed to the human condition of individuals, and their posited flight from persecution. Rarely (save for clear cases of systematic persecution against groups) can a judgment be made about whether an individual is entitled to the status of a refugee by reference to general considerations divorced from the individual’s personal circumstances. See, in this context, the Handbook on Procedures and Criteria for Determining Refugee Status published by the Office of the United Nations High Commissioner for Refugees (as revised in 1992) at 47, in the section entitled “Establishing the Facts”. Likewise, a decision not to afford protection (by the refusal of a visa) to someone who is recognised to satisfy Art 1A(2) would require clear statutory foundation if it were to be lawfully made by reference to considerations unconnected with the personal circumstances of the person in respect of whom Australia, by its treaty-making power and laws, had undertaken to protect from persecution.
23 The above considerations reflect the intensely human character of the Refugees Convention and its concern with the plight of individual people in need of protection. It might be concluded that there is every reason to construe domestic law against that background.
24 Set against that background, the question of whether this decision can be characterised as legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225; and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 may raise the following issues.
25 First, an issue may arise as to whether the fact that the applicant had been recognised as satisfying Art 1A(2) of the Refugees Convention and that the application was for a protection visa meant that the Minister was obliged to take into account the particular circumstances of the applicant before refusing him a visa. The potentially mandatory character of this consideration may be seen to derive from the obligation of the Minister to make the decision by reference to the merits of the particular case, including the applicant’s individual circumstances: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, approved in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at 174–175 at [26]. This conclusion may be seen to be reinforced by the nature of the assessment of status under Art 1A(2) of the Refugees Convention and the intensely human character of the Refugees Convention to which we have already referred.
26 If the particular circumstances of the applicant were correctly to be seen as mandatory in the present case, not only did the Minister fail to consider the legal consequence of refusal (indefinite detention) but he also failed to give proper consideration (Khan and SZJSS at [26]) to the merits of the case before him. To do so, on this hypothesis, he would be required to genuinely consider whether he should refuse a protection visa to a person who feared for his life, and whether that person should be detained indefinitely, because he had committed the offence for which he was convicted, in the circumstances in which he did.
27 The acceptance of this approach may require a reconsideration of the views of the majority in Huynh at [71]–[76] and whether the views of Wilcox J in dissent at [43]–[46] and [50]–[56] are not preferable.
28 Secondly, issues may arise whether, and if so the extent to which, the notion of deterrence was a legitimate consideration, especially in the making of a decision for a protection visa in the circumstances of the applicant having satisfied Art 1A(2) of the Refugees Convention. These considerations have a relationship with the proper characterisation of the decision, in particular whether, in the circumstance here, the refusal of the visa was a form of double punishment, and whether the evident consideration by the Minister of general deterrence went, in the circumstances, beyond what might be seen to be legitimate in the light of the remarks in Djalic and Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172 (and assuming the relevant statements in Djalic at [76] to be correct). A related question would be whether, in all the circumstances, the substantive characterisation of the decision was one of punishment, rather than one in furtherance of the proper scope and limits of s 501, and in particular the protection of the Australian public; and in that context, the extent to which it was necessary for the Minister to consider the risk to the Australian community and the “character” of the applicant, as related and possibly central considerations.
29 A Minister may consider that the refusal of a visa to persons who have offended in some fashion may act as a disincentive to others and in this way protect other detainees or the Australian public. That might be a legitimate consideration; but care needs to be taken. There is authority that a deportation order made for the sole or substantial purpose of deterring others would serve (impermissibly) as punishment of the criminal: Re Sergi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 224 at 231 (per Davies J); Re Gungor and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225 at 232 (per Smithers J); and see Djalic at [76] and Tuncok at [42].
30 Whether or not deterrence (in the sense of general deterrence) is a proper consideration in respect of a decision under s 501(1) and if so, whether it is impermissible once it becomes the substantial or main reason for the decision would require the detailed examination of the above cases set against fundamental notions of punishment.
31 Once it can be seen that a decision to deport (or to refuse a visa with the legal consequence of deportation) is made for the purpose of deterrence, an affinity arises with punishment for crime: Re Saverio Barbero and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 15 (per Davies J). This leads to the third possible issue: the potential relevance of an applicant’s mental health. If deterrence be a legitimate consideration, an issue may arise as to whether the Minister was required to consider (and if so to what extent) the mental health of the applicant and its relationship to the offending conduct. Sentencing principles have long recognised the legal necessity to consider the relationship between the offending and any mental illness. An offender whose criminal acts were caused or influenced by a degree of mental illness may not be an appropriate vehicle for deterrence: R v Tsiaras [1996] 1 VR 398 at 400 (per Charles JA, Callaway JA and Vincent AJA); Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [53]; R v Wright (1947) 93 A Crim R 48 at 50. Thus, if deterrence be a legitimate consideration, its utilisation may not be lawful without appropriate recognition or weight being given to a necessary aspect of its operation: the mental health of the person and whether or not he or she is an appropriate vehicle to stand as an example.
32 Fourthly, an issue may arise as to whether the Minister’s assessment of the objective circumstances of the relevant offending was legally open. The decision of the Minister involved an evaluation of the objective seriousness of the applicant’s conduct or criminality. It is difficult to see how a decision under s 501(1) cannot involve such a consideration. That evaluation was central to the Minister’s decision and one which the subject matter, scope and purpose of the Act might be seen to require him to undertake. Such an evaluation may not be free from scrutiny. Such a task regularly arises in sentencing for crime. A central consideration involved in sentencing (a quintessentially discretionary task: House v The King [1936] HCA 40; 55 CLR 499) is the proper evaluation of the objective seriousness of the offending. Latitude is given to a sentencing judge in that task. To be corrected, the evaluation must be shown to be one that is objectively not open (reflecting the final category of discretionary review in House at 505: “unreasonable or plainly unjust”): see for example Mulato v R [2006] NSWCCA 282 at [36]–[37] and [46]. In Peko-Wallsend Ltd at [42] Mason J referred to “the close analogy between judicial review of administrative action and appellate review of a judicial discretion”.
Conclusion
33 The orders proposed by Buchanan J should be made.
| I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and Justice Katzmann. |
Associate:
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 1972 of 2013 |
| BETWEEN: | NBMZ Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN & KATZMANN JJ |
| DATE: | 9 April 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
BUCHANAN J:
Introductory observation
34 This judgment is being delivered on the same day as NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39 (“NBNB”), which was argued some weeks after the present case. NBNB deals with issues which are very similar to the issues addressed in this matter. The discussion below deals mainly with the arguments which were presented in the present case.
35 At one point it has been necessary to mention a particular submission made by the Minister in NBNB to the effect that the Minister has no obligation to pay any regard to the personal circumstances of a visa applicant. It will be necessary to explain (but only briefly in the present case) why I do not accept that submission.
36 I will mention the significance of one further argument dealt with in NBNB (an argument about natural justice) at the end of this judgment.
Background
37 The applicant is a citizen of Iran. He has been assessed as a refugee to whom Australia owes protection obligations under the Refugees Convention. Under the Refugees Convention to which Australia subscribes, the applicant may not be sent back to Iran, the country from which he fled. There is nothing to suggest that he has the right to enter and reside in any other country. However, in the exercise of a personal discretion under the Act, the Minister for Immigration, Multicultural Affairs and Citizenship has decided not to grant him a visa.
38 The applicant is therefore an unlawful non-citizen present in Australia within the meaning of s 189 of the Migration Act 1958 (Cth) (“the Act”). Sections 196 and 198 of the Act operate in combination to require the detention of the applicant and the removal of the applicant from Australia as soon as reasonably practicable.
39 The applicant arrived on Christmas Island on 24 June 2011. On 11 August 2011 he was moved to the Northern Immigration Detention Centre at Darwin (“the Detention Centre”).
40 On 4 October 2011 the applicant made a request for a “protection obligations evaluation”. On 9 November 2011 a Protection Obligations Evaluation Officer found the applicant not to be a person who was owed protection by Australia. The matter was then referred for “independent protection assessment”. At about the time of events to which reference is made below, which occurred at the Detention Centre, concerns were raised about the applicant’s mental health and on 30 January 2012 the then Minister for Immigration and Citizenship, the Honourable Chris Bowen MP, directed that the applicant be placed in “community detention”. I shall refer in more detail to the community detention provisions in due course.
41 On 26 April 2012 an Independent Protection Assessor determined that the applicant was a person to whom Australia owed protection obligations and recommended that he be recognised as such a person. On 12 December 2012 the Minister agreed to exercise his power under s 46A(2) of the Act to allow the applicant to apply for a protection (class XA) visa.
42 In the meantime, the applicant had been charged, convicted and sentenced for conduct which occurred whilst he was at the Detention Centre and before being released into community detention.
43 The sentencing magistrate was informed that on 30 or 31 October 2011 the applicant had attempted suicide. It may be accepted that he had harmed himself in some way. He was taken to the Darwin Hospital. At about 8.30 am on 31 October 2011 he was returned to the Detention Centre. Shortly afterwards (on the facts put before the sentencing magistrate):
The accused over-turned two pool tables and a table tennis table, knocked over two fridges, damaged another fridge and freezer, threw a printer, damaged two microwave ovens, two computers, a plasma screen television and roller shutters. As a result of the actions, these items of property required to be repaired and/or replaced. The damage caused to the property was $8662.58 and the work order report itemises that damage.
44 On 3 October 2012 the applicant pleaded guilty to a charge of intentionally damaging property belonging to the Commonwealth of Australia. The sentencing magistrate said:
HIS HONOUR: … I take into account his guilty plea; his mental problems. It was a stupid and childish tantrum that resulted in this vandalism. It has shown no regard to the Australian taxpayer and the authorities that were looking after him.
I will order him to be of good behaviour for 18 months with a recognizance of $1000 and I order reparation in the sum of $8862.58 [sic] to be paid by the defendant to the commonwealth.
45 The applicant was then released again into community detention and, as earlier indicated, he was later (on 12 December 2012) permitted to apply for a protection visa.
46 As earlier indicated, the applicant initially made an application for a protection visa on 4 October 2011, before the incident at the Detention Centre. His statement was witnessed on the same day by a legal practitioner. After the applicant was advised on 12 December 2012 that he might apply for a protection visa (more than two months after his conviction and release) this earlier application was, on 24 December 2012, sent again by his legal representative to the Department. On 15 January 2013 the applicant was advised that consideration was being given to whether his application should be refused under s 501 of the Act because he did not pass the “character test”. He did not pass the character test because of the terms of s 501(6)(aa) of the Act, which provide:
501 Refusal or cancellation of visa on character grounds
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or …
47 The applicant was given an opportunity to comment. Representations were then made on his behalf. The material which was put before the Minister, (then the Honourable Tony Burke MP), included reference to the applicant’s mental health issues, which appeared in part to be attributable to his detention, and to his efforts to adapt to Australian society and values.
48 On 16 August 2013 the applicant was advised that on 25 July 2013 the Minister had decided to refuse to grant him a protection visa.
49 On 20 September 2013 the applicant’s legal representatives filed an application in this Court seeking writs of certiorari, mandamus and prohibition against the Minister on the grounds of jurisdictional error.
The statutory scheme
50 The object of the Act is stated by s 4, which also makes statements about how the Act advances its object in certain, specified respects. Section 4 provides:
4 Object of Act
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
(5) To advance its object, this Act provides for the taking of offshore entry persons from Australia to a regional processing country.
(Emphasis added.)
51 The matters I have emphasised require later consideration of their interaction with obligations which Australia has assumed under the Refugees Convention (Geneva, 28 July 1951) as amended by the Refugees Protocol (New York, 31 January 1967) (hereafter referred to compendiously as the Refugees Convention).
52 Sections 13 and 14 of the Act identify who are lawful and unlawful non-citizens. Sections 13(1) and 14(1) provide:
13 Lawful non-citizens
(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
…
14 Unlawful non-citizens
(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
…
53 The visa system, therefore, is basic to the operation of the Act. There are various classes of visas for which the Act provides. Some are “permanent” (s 30(1)) and some are “temporary” (s 30(2)) although all are subject to the possibility of cancellation under various provisions of the Act including (relevantly for the present case) s 501.
54 One category of visa is a protection visa (s 36). One group of persons to whom a protection visa is available is identified by s 36(2)(a), as follows:
36 Protection visas
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or …
55 The applicant is a person to whom this description applies.
56 Section 36(3) provides:
36 Protection visas
…
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
57 It has not been suggested that the applicant is a person to whom s 36(3) applies.
58 The applicant is “an offshore entry person” and was not permitted to apply for a visa (s 46A(1)) unless the Minister determined, personally, that he may do so (s 46A(2) and (3)). The Minister gave that permission in the present case. The applicant therefore made a valid application for a protection visa and the Minister was obliged to consider it (s 47).
59 Section 65 of the Act provides:
65 Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).
(Emphasis added.)
60 As already indicated, the Minister decided that he should refuse a protection visa to the applicant having regard to s 501 of the Act. It will be noted (so far as s 501 is concerned) that s 65 requires that a visa be granted if the Minister is satisfied that the grant of a visa is not prevented by s 501. Although the applicant was refused a visa under s 501 in the exercise of a discretion, it has not been argued that the grant of the visa was not prevented by s 501.
61 Section 501(1), (6) and (7) provide:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
(Section 501(6)(aa) and (ab) were inserted in s 501 of the Migration Act on 26 April 2011. Section 197A refers to escaping from detention).
62 Because s 501(6)(a) and (7) provide a ready objective standard for the formation of the Minister’s opinion under s 501(1), in practice decisions to refuse or cancel a visa are frequently made by reference to that standard. In the present case, the applicant did not have a substantial criminal record. Indeed, apart from his conviction on 3 October 2012 he had no criminal record in Australia and none of which the Minister’s department was aware in Iran.
63 However, the applicant (because of s 501(6)(aa)) did not pass the character test. The Minister therefore had a discretion under s 501(1) to refuse a visa. The decision to exercise that discretion to refuse a protection visa to the applicant is at the heart of the present proceedings.
64 Section 501F of the Act has the effect that a decision under s 501 to refuse a visa is taken to be a decision to cancel any other visa then held. The consequence is that the applicant was an unlawful non-citizen because he was present in the migration zone without any form of visa, including a bridging visa. Section 189 of the Act required his detention. Section 189(1) provides:
189 Detention of unlawful non-citizens
(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
65 Section 198 then required that the applicant be removed from Australia as soon as reasonably practicable. Section 198(6) provides:
198 Removal from Australia of unlawful non-citizens
…
(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(iii) the visa cannot be granted; and
(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
66 Section 198(6)(a), (b), (c)(i) and (d) applied to the applicant.
Australia’s protection obligations
67 As a “Contracting State” which has adopted the Refugees Convention, Australia has accepted international obligations to other contracting States with respect to the treatment of refugees.
The scheme of the Refugees Convention
68 The Refugees Convention is organised into seven chapters. Chapter I, “General Provisions” (Articles 1-11) includes the definition of refugee in Article 1A, to which I refer hereunder. Chapter I also includes a number of provisions identifying persons to whom the Refugees Convention will not apply (Articles 1C to 1F). None is relevant in the present case.
69 Article 2 provides:
ARTICLE 2
General Obligations
Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.
70 Articles 3 and 4 require Contracting States not to discriminate against refugees on the grounds of race, religion or country of origin and to allow refugees in their territory freedom of religious practice and religious education for their children.
71 Chapter II (Articles 12-16) deals with the “Juridical Status” of refugees. Some of the protections provide for equal treatment with aliens generally, and some for equal treatment with nationals.
72 Chapter III (Articles 17-19) deals with “Gainful Employment”. The protections apply to refugees lawfully in the territory of the Contracting State.
73 Chapter IV (Articles 20-24) deals with “Welfare”. Generally speaking, refugees lawfully in the territory of a Contracting State are to be accorded the same treatment as nationals of the Contracting State.
74 Chapter V (Articles 25-34) deals with “Administrative Measures”. Some of the provisions apply generally to refugees in the territory (Articles 25, 27, 29, 30, 33, 34), some apply to refugees lawfully in the territory (Articles 26, 28, 32), and one (Article 31) applies to refugees unlawfully in the territory. I shall return to certain features of some of those provisions shortly.
75 Chapter VI (Articles 35-37) deals with “Executory and Transitory Provisions”.
76 Chapter VII (Articles 38-46) contains “Final Clauses”. Amongst them are Article 42 (Reservations) and Article 44 (Denunciation). Australia has not denounced the Refugees Convention. Australia did, at one time, make some reservations about particular clauses, but has since withdrawn its reservations. It is not possible to make a reservation about Article 33, which is discussed in more detail below.
77 Some specific mention of particular “administrative measures” in Chapter V follows.
Imposition of penalties
78 Many of the protection obligations stated in the Refugees Convention apply to refugees “lawfully” in the territory of a Contracting State, but not all do. Article 31, for example, applies to refugees unlawfully in the territory of a Contracting State. Article 31 provides:
ARTICLE 31
Refugees unlawfully in the Country of Refuge
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
79 It was not argued that Article 31 was relevant in the present case.
Non-refoulement
80 An obligation, which is not relevantly qualified by any other consideration in the case of the present applicant, is stated in Article 33 of the Refugees Convention as follows:
ARTICLE 33
Prohibition of Expulsion or Return (“Refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
81 I earlier drew attention to the provisions of s 4 of the Act in which there appears to be a declaration of legislative intent that only the provisions of the Act will govern the right to remain in Australia.
82 In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, Mason CJ and Deane J affirmed (at 286-287) that:
The status of the Convention in Australian law
It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.
(Citations omitted.)
83 Article 33 of the Refugees Convention has not been directly enacted into municipal law by the Act or otherwise. Article 33 is in Ch V of the Refugees Convention. In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, McHugh and Gummow JJ pointed out (at [45]) that the Act did not:
45 … enact in Australian municipal law the various protection obligations of Contracting States found in Chs II, III and IV of the Convention. The scope of the Act is much narrower. In providing for protection visas whereby persons may either or both travel to and enter Australia, or remain in this country, the Act focuses upon the definition in Art 1 of the Convention as the criterion of operation of the protection visa system.
84 However, their Honours did see in the provisions of Ch V “some measure of protection” (at [43]-(44]).
85 The majority judgment in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 (“NAGV”) also referred to the distinction between international obligations which Australia might owe to other Contracting States by reason of its subscription to the Refugees Convention (e.g. observance of Article 33) and the obligation Australia might owe to an individual visa applicant through the enactment of municipal law which adopts provisions of the Refugees Convention as a criterion for the operation of the Act (e.g. at [26]):
26 … The issue on this appeal does not turn immediately upon the content of Australia’s international obligations respecting the appellants under Art 33(1) of the Convention. The Convention is of determinative importance for this appeal only in so far as it or its particular provisions are drawn into municipal law by adoption as a criterion of operation of s 36(2) of the Act.
86 As McHugh and Gummow JJ also pointed out in Khawar, the Act focuses upon the definition of “refugee” in Article 1 of the Refugees Convention as the criterion of operation of the protection visa system. It does so through the provisions of s 36(2) (set out earlier). Article 1A(2) of the Refugees Convention provides:
ARTICLE 1
Definition of the Term “Refugee”
A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
…
(2) Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.
87 In NAGV the High Court again made it clear that this was the criterion which the Act had adopted, saying (at [32]-[33]):
32 … Section 36(2) does not use the term “refugee”. But the “protection obligations under [the Convention]” of which it does speak are best understood as a general expression of the precept to which the Convention gives effect. The Convention provides for Contracting States to offer “surrogate protection” in the place of that of the country of nationality of which, in terms of Art 1A(2), the applicant is unwilling to avail himself. That directs attention to Art 1 and to the definition of the term “refugee”.
33 Such a construction of s 36(2) is consistent with the legislative history of the Act. This indicates that the terms in which s 36 is expressed were adopted to do no more than present a criterion that the applicant for the protection visa had the status of a refugee because that person answered the definition of “refugee” spelled out in Art 1 of the Convention.
(Citations omitted.)
88 Although Article 33 of the Refugees Convention has not been enacted into Australian municipal law, it has been accepted that Australia would act in accordance with its international obligations in the case of persons to whom the Refugees Convention applied (and while their claims to that effect were being assessed).
89 In NAGV the High Court said (at [22]-[23]):
22 … The Minister accepts that Australia has an international obligation under Art 33(1) not to expel or return the appellants in any manner whatsoever to the frontiers of the Russian Federation, being their country of nationality, or to the frontiers of any other territory where their life or freedom would be threatened in the sense spoken of in that Article.
23 Counsel for the Minister also accepts that there is implicit in that negative proposition drawn from Art 33(1) a positive obligation to permit the appellants to remain in Australia. The Minister thus adopts the proposition stated by a commentator:
“[I]f a State is bound by a non-refoulement obligation with respect to a given individual, and there is no place to which that individual can be removed without the obligation being breached, the State in question has no choice but to tolerate that individual’s presence within its territory. In these circumstances, fulfillment of the non-refoulement obligation through time is functionally equivalent to a grant of asylum.”
(Citation omitted.)
90 There is a qualification to be made to the notion that “fulfillment of the non-refoulement obligation through time is functionally equivalent to a grant of asylum”. It will later be necessary to address the significance of the fact that the applicant in the present case faces the likelihood of indefinite (or at least indeterminate) detention.
91 In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, the majority judgment said (at [92]-[94]):
92 Australia’s power to remove non-citizens from its territory is confined by the practical necessity to find a state that will receive the person who is to be removed. Ordinarily, Australia would look, in the first instance, to a person’s country of nationality to receive that person. Australia would do that on the footing that it has long been accepted, as a principle of international law, that the national of a country has a right to re-enter the territory of that country and a country of nationality has a duty to admit its nationals to its territory. This principle of customary international law is reflected, but not in any way superseded, in many international instruments to which Australia is party.
93 The general expectation that Australia can and should look to the country of a person’s nationality to receive that person on removal from Australia is necessarily subject to some qualifications. First, other considerations may arise where a person is stateless or where the controller of a vessel that carried a passenger denied entry to Australia may be compelled to remove that passenger. But those kinds of case may be put aside from further examination in these matters.
94 The second and more relevant qualification is that Australia (and any other party to the Refugees Convention and the Refugees Protocol) would act in breach of its international obligations under those instruments if it were to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Accordingly, for Australia to remove a person from its territory, whether to the person’s country of nationality or to some third country willing to receive the person, without Australia first having decided whether the person concerned has a well-founded fear of persecution for a Convention reason may put Australia in breach of the obligations it undertook as party to the Refugees Convention and the Refugees Protocol, in particular the non-refoulement obligations undertaken in Art 33(1) of the Refugees Convention.
(Citations omitted.)
92 In Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243, French CJ said that a person who satisfied s 36(2)(a) of the Act, but was refused a visa because he did not pass the character test in s 501 of the Act, would be (at [39]):
[39] … treated as a person to whom Australia has protection obligations under the convention but, being refused a visa, would be an unlawful non-citizen. The applicant would continue to be entitled to the benefit of the non-refoulement obligation under Art 33 unless the condition in Art 33(2) were satisfied. In that case there would be nothing in the convention to prevent his return to the country from which he came.
(Citation omitted.)
93 Gummow J said (at [99]-[100]):
[99] The duty of removal carries with it, subject to any express qualification in the Act or the Regulations, the power of selection of the destination to be reached upon removal. However, it follows from determination by the minister that the plaintiff is one to whom Australia owes protection obligations that it would not be a proper exercise of that power to return the plaintiff to Sri Lanka or to remove him to any other territory where his life or freedom would be threatened on account of his race or political opinion, within the meaning of Art 33(1) of the convention.
[100] The convention has not been enacted as a whole or directly into Australian law. But s 36(2)(a) of the Act does so expressly to the extent described in these reasons. That circumstance removes the power of selection which is appended to the duty to remove under s 195 from the application of the ordinary rule that unenacted international obligations are not mandatory relevant considerations in the exercise of statutory powers. …
(Citation omitted.)
94 Crennan J said (at [401]):
[401] There is potential for serious conflict between the right to expel and the non-refoulement obligation. In the light of the relevant authorities, there is also the possibility that the lawfulness of detention will be affected by the length of the removal process. Removal under s 198 of the Migration Act must occur “as soon as reasonably practicable”. …
95 Crennan J’s observations draw attention to the problem of potential unlawful detention. However, the judgments of the High Court to which I have referred make it apparent that this Court is bound to conclude that the applicant in the present case will have the protection of Article 33 of the Refugees Convention notwithstanding the mandatory terms of s 198 of the Act. In the present proceedings, both parties urged that view of the law.
96 I shall return shortly to discuss the consequence for the applicant, that he may not, for the foreseeable future, so far as is known, be removed from Australia.
Assimilation and naturalisation
97 Like Article 33, Article 34 is not limited in its application to refugees lawfully in the territory of a Contracting State. Article 34 provides:
ARTICLE 34
Naturalization
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
98 There are some obvious differences between the content and operation of Articles 33 and 34. Article 33(1) is a negative stipulation which, for that reason, is capable of application in individual cases. Article 34 is, at least in part, exhortatory. It is expressed by reference to a class of persons. There may be reasons why it would not apply in individual cases.
99 The Travaux Preparatoires to the Refugees Convention disclose concern by some Contracting States that this article should not affect their usual procedures for assessing who may become a citizen.
100 In the Federal Court of Canada the view has been taken that Article 34 encourages (rather than obliges) settlement of refugees and is “permissive rather than mandatory” (Haj Khalil v Canada, 2007 FC 923 at [278]). Nevertheless, one question which may perhaps arise for consideration in an appropriate case is whether the treatment of a particular refugee, or refugees, demonstrates a failure by a decision-maker to pay appropriate regard to Article 34. In that context a further issue might arise about the nature and content of the obligations in Article 34 which Australia has accepted.
101 How may the obligation in Article 34 be respected in the case of a refugee, like the applicant, who is clearly entitled to the benefit of Article 33, who remains in Australia and who (so far as it appears) poses no known threat to the Australian community? Is it consistent with the obligation in Article 34 that such a person remain detained, perhaps indefinitely? He has, for his offences (such as they are) already been dealt with under Australian law. Would it breach Australia’s obligations under Article 34 to erect an insurmountable barrier to assimilation and naturalisation of the kind represented by the Minister’s decision in the present case?
102 An answer to those questions is far from straightforward, and I do not propose to offer one in the context of the present case.
103 No party raised the question of the operation of Article 34 in the present case.
Indefinite detention
104 After proceedings were commenced in this Court, on 12 December 2013 the High Court delivered judgment in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 88 ALJR 324 (“Plaintiff M76”).
105 Plaintiff M76 was concerned with the circumstances of an unlawful non-citizen (a citizen of Sri Lanka) who was found to be a person to whom Australia owed protection obligations but who was subject to an adverse security assessment by the Australian Security Intelligence Organisation. The High Court was asked to reconsider and overrule the earlier decision of Al-Kateb v Godwin (2004) 219 CLR 562 (“Al-Kateb”) but for reasons variously expressed in Plaintiff M76, declined to do so.
106 Al-Kateb decided that ss 189, 196 and 198 of the Act authorised and required the detention of an unlawful non-citizen even if his removal from Australia was not reasonably practicable in the foreseeable future. Al-Kateb remains binding on this Court. No argument is available in the present proceedings, therefore, that the continued detention of the applicant would be unauthorised or invalid, or that he would have a right to be at large in the community without a visa if unable to be removed from Australia within a reasonable time, as required by the Act.
107 Although Al-Kateb remains binding, in Plaintiff M76 there was some agreement that Al-Kateb did not involve the consequence that detention could be at large, although the different judgments gave emphasis to that proposition for various reasons. A majority of the High Court in Plaintiff M76 (French CJ, Crennan, Bell and Gageler JJ) decided that the case did not require re-examination of Al-Kateb because the administrative processes under the Act were not complete and, therefore, no doubt existed about the present authority for detention of the plaintiff in that case. French CJ said that Al-Kateb should, in those circumstances neither be re-opened or confirmed (at [31]). Crennan, Bell and Gageler JJ said that consideration of the correctness of Al-Kateb was not then necessary because the circumstances in Plaintiff M76 in any event remained within a prior constitutional holding in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 (“Lim”) concerning the period for which detention might be authorised. Hayne J and Kiefel and Keane JJ, by contrast, said that Al-Kateb should be confirmed.
108 The differing approaches to the possibility of revisiting Al-Kateb at some future time do not affect the analysis in the present case and, as I said earlier, Al-Kateb remains directly binding on this Court. However, behind the differing approaches to that question, there was apparent agreement about some matters relevant to the present case. The agreement concerned the nature of, and limitations upon, the authority given by the Act to detain an unlawful non-citizen and the purpose of such detention. Those questions are connected with the consequences of refusal of a visa application in the case of a person to whom Australia owes protection obligations, as is accepted to be the present case.
109 French CJ said (at [30]-[31]):
30 Absent her claim on Australia for protection under the Refugees Convention and the process of assessment that followed it, the plaintiff’s continuing detention would only have been lawful while steps were being taken to arrange for her removal as soon as reasonably practicable from Australia to Sri Lanka. The process of assessment provided a distinct legal underpinning for her detention pending its completion and the ministerial decision. …
31 In the event that the Minister makes a decision under s 46A(2) adverse to the plaintiff, the question may arise whether her detention thereafter is authorised if she is unable to be removed to another country. On the construction of ss 189, 196 and 198 of the Act adopted by the majority in Al-Kateb, it appears that her continuing detention would be authorised until she was able to be removed from Australia. …
(Emphasis added.)
110 In similar vein, Hayne J said (at [98]-[99]):
98 The power to detain unlawful non-citizens given by the Act should not be construed as unbounded. Nor are the applicable provisions of the Act to be construed as authorising detention for whatever period of time the Minister may choose.
99 The primary temporal limitation on the power to detain is provided by the imposition of the statutory duty to remove as soon as reasonably practicable. Further detention is authorised only if the detention is under and for the purposes of the Act. The bounds of that further detention must be ascertainable, and enforceable, at all times during its continuance.
(Emphasis added.)
111 Hayne J also gave a more extended explanation for this fundamental principle (at [116]-[120]):
116 As I have previously pointed out, the Act has a binary structure. Its central provisions posit a choice between two outcomes for non-citizens within Australia’s migration zone. The Act divides non-citizens into “lawful non-citizens” and “unlawful non-citizens” according to whether the non-citizen in question holds a visa that is in effect. If a non-citizen can make a valid application for a visa, the Minister must decide either to grant or refuse to grant that application according to whether the Minister is satisfied that the requirements stated within the Act or regulations are met.
117 Subject to some presently irrelevant exceptions, an officer is bound to detain a person whom the officer knows or reasonably suspects to be an unlawful non-citizen. An unlawful non-citizen who has been detained under s 189 must be kept in immigration detention until the occurrence of one of the terminating events prescribed by s 196(1). Section 198(2) obliges an officer to remove an unlawful non-citizen from Australia “as soon as reasonably practicable”.
118 These provisions of the Act are directed to the regulation of persons entering and remaining in Australia. Those whom the Act classifies as “unlawful non-citizens” are persons who have no permission to travel to and enter Australia or to remain in Australia. Sections 189, 196 and 198 provide powers of detention and removal in aid of effecting a fundamental purpose of the Act, namely, providing that those who are not citizens of Australia may travel to and enter Australia and may remain in Australia only if they have permission to do so. No provision of the Act countenances any middle ground between being a lawful non-citizen (who is entitled to remain in Australia in accordance with any applicable visa requirements) and being an unlawful non-citizen (who may, and who usually must, be detained and who, assuming no other relevant provision or procedure under the Act remains unperformed, must be removed from Australia as soon as reasonably practicable).
119 An unlawful non-citizen cannot be removed from Australia unless he or she will be received at the place to which he or she is taken. Removal means removal to a place. Ordinarily, the country of which the person concerned is a national is bound to receive that person and there may be other countries that are willing to do so. But the Act is silent on these matters. And it says nothing about the case of the unlawful non-citizen who is stateless and thus without a country of nationality that is bound to receive that person.
120 Likewise, the Act does not deal expressly with the case of an unlawful non-citizen who has a well-founded fear of persecution for a Convention reason in his or her country of nationality but who is not entitled to a protection visa. But, as the decision in Plaintiff M47/2012 demonstrates, the Act does recognise expressly that persons with a well-founded fear of persecution for a Convention reason may validly be refused a protection visa under the Act. The Act recognises expressly that a person who is a refugee may be and remain an unlawful non-citizen whom an officer is bound to remove from Australia as soon as reasonably practicable.
(Footnotes omitted. Emphasis in italics in original. Emphasis in bold added.)
112 Crennan, Bell and Gageler JJ, following their reference to Lim said (at [139]-[140]):
139 The necessity referred to in that holding in Lim is not that detention itself be necessary for the purposes of the identified administrative processes but that the period of detention be limited to the time necessarily taken in administrative processes directed to the limited purposes identified. The temporal limits and the limited purposes are connected such that the power to detain is not unconstrained. … The common law does not recognise any executive warrant authorising arbitrary detention. A non-citizen can therefore invoke the original jurisdiction of the Court under s 75(iii) and (v) of the Constitution in respect of any detention if and when that detention becomes unlawful. What begins as lawful custody under a valid statutory provision can cease to be so.
140 The constitutional holding in Lim was therefore that conferring limited legal authority to detain a non-citizen in custody as an incident of the statutory conferral on the executive of powers to consider and grant permission to remain in Australia, and to deport or remove if permission is not granted, is consistent with Ch III if, but only if, the detention in custody is limited to such period of time as is reasonably capable of being seen as necessary for the completion of administrative processes directed to those purposes.
(Footnotes omitted. Emphasis in italics in original. Emphasis in bold added.)
113 Kiefel and Keane JJ said (at [182]):
182 … The scheme of the Act contemplates that only those aliens who hold a visa are entitled to be at large in the Australian community. In this context, the absence of an express limitation upon continued detention where removal is not practicable within a reasonable time is not “silence” on the part of the legislature. The circumstance that the language of ss 189, 196 and 198 is not qualified by any indication that the mandate requiring detention depends upon the reasonable practicability of removal within any time frame is eloquent of an intention that an unlawful non-citizen should not be at large in the Australian community: the mandate in s 189 is unqualified in its terms, and the operation of the mandate in s 196(1) is, in terms (subject only to the possibility of the Minister making a “residence determination” under s 197AB of the Act), until the unlawful non-citizen is removed from Australia under s 198 or the unlawful non-citizen is granted a visa.
(Emphasis in original.)
114 In my respectful view, therefore, five of the seven judges in Plaintiff M76 construed the Act as incorporating some form of temporal limitation on the power to detain.
The applicant’s present situation
115 The position which emerges from the provisions of the Act and the Refugees Convention and the decisions of the High Court to which I have referred is that the protection obligations in Article 33 of the Refugees Convention apply to the applicant because he is a refugee even though he has been refused a visa. Subject to that protection, however, the applicant must be sent from Australia as soon as reasonably practicable. In the meantime he must be detained.
116 After the decision of the High Court in Al-Kateb, ss 195A and 197AA to 197AG were inserted in the Act.
117 Section 195A (set out below) allows the Minister to grant a visa in the public interest to a person who is in detention under s 189 of the Act. A statement must be laid before each House of Parliament which sets out the public interest reasons. The grant of a visa has the effect of bringing detention to an end. The applicant has not been granted a visa under s 195A of the Act.
118 Sections 197AA to 197AG permit the Minister to decide to make a “residence determination” in respect of a person in detention under s 189 of the Act in the public interest. This is usually referred to as community detention. A statement must be laid before each House of Parliament which sets out the public interest reasons. A residence determination directs that a person reside at a specified place, instead of being held in a detention centre (s 197AB(1)), but the Act and regulations otherwise generally apply as if the person was being kept in immigration detention (s 197AC(1)).
119 As earlier indicated, the applicant was placed in community detention on 30 January 2012, after the incident on 31 October 2011 and before his conviction on 3 October 2012. After conviction he went back to community detention, but the Act and regulations continue generally to apply to him and his present status is that he is an unlawful non-citizen. The community detention arrangements, although no doubt less oppressive from the point of view of the applicant, have no effect on his legal status, his liability to be removed from Australia as soon as reasonably practicable or the requirement under the Act that he be detained while that is accomplished.
120 Because he is not “lawfully” in Australia (because he has no visa) the applicant does not have the benefit of other protection obligations in the Refugees Convention, including freedom of movement and association, the right to work, etc.
121 Owing to his status as an unlawful non-citizen in Australia who has been refused a visa, the applicant is therefore in a form of legal limbo, caught between an obligation upon the executive government to achieve his removal from Australia and his continuing and indefinite detention until, at some indeterminate point in the future, if at all, that can be achieved.
122 It is in that context, and in the context that the applicant is an acknowledged refugee who is not subject to an adverse security assessment, that the Minister’s decision not to grant him a visa of any kind must be assessed.
Speculation about future executive action
123 Before the Minister’s decision, and the challenges to it, are referred to it is desirable to say something about a submission by counsel for the Minister to the effect that the present case should be approached by reference to the possibility (perhaps the assumption) that at some time in the future (but who knows when) the executive government might favour the applicant with the exercise of a discretion which might in some way ameliorate his position.
124 It was, of course, impossible for counsel to give any content to this speculative possibility, beyond saying the detention regime might be altered or the applicant may perhaps even be given some form of visa (whether temporary or permanent could not be known).
125 Section 196 of the Act provides:
196 Duration of detention
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.
(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(5) To avoid doubt, subsection (4) or (4A) applies:
(a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and
(b) whether or not a visa decision relating to the person detained is, or may be, unlawful.
(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
(6) This section has effect despite any other law.
(7) In this section:
visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
126 The requirement of continued detention of the applicant in some form or other therefore depends on whether he is given a visa.
127 Section 195A of the Act was introduced after the decision of the High Court in Al-Kateb. It provides:
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
Tabling of information relating to the granting of visas
(6) If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):
(a) states that the Minister has granted a visa under this section; and
(b) sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.
(7) A statement under subsection (6) in relation to a decision to grant a visa is not to include:
(a) the name of the person to whom the visa is granted; or
(b) any information that may identify the person to whom the visa is granted; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
128 I regard the provisions of s 195A to be irrelevant to a disposition of the present application. In my view, the applicant is entitled to have his application to this Court determined by reference to the legal consequences for him of the decision which was in fact made about his visa application.
129 As will become apparent from the terms of the Minister’s decision, the speculative possibilities that this Court was asked to entertain are not ones to which any reference was made in the Minister’s reasons for decision. In any event, they are not relevant to the present application.
130 The applicant’s present position is that he must be removed from Australia as soon as reasonably practicable (subject to his continuing protection under Article 33 of the Refugees Convention). Until he can be removed the applicant must be detained. Because there is no known prospect of finding a country to which he may be removed the applicant’s detention will be, so far as is known, indefinite. Those matters are the direct consequence of the decision to refuse the applicant a visa.
131 The Minister did not, at the time of refusal, grant the applicant a visa under s 195A as he might have done. I do not think it is permissible to speculate, much less to proceed upon any form of assumption, that the Minister might change his mind or take a different course at some future time. Such possibilities or assumptions have no relevance to the applicant’s present position.
Advice to the Minister about consequences for the applicant
132 I will deal separately with an argument by counsel for the applicant that the Minister was inadequately advised about the applicant’s mental state at the time of the incident at the Detention Centre on 31 October 2011. For the moment, I propose to focus on what the Minister was told would be the consequences for the applicant if a visa was refused to him, in the light of the legal context so far discussed.
133 The Minute to the Minister asking for a decision about the visa application which the applicant, as an accepted refugee had been permitted to make, said:
8. If you decide to refuse Mr [NBMZ’s] application for a Protection (Class XA) visa, the effect of s501F(2) of the Act is that any other visas which may have been applied for by Mr [NBMZ] and which are currently undecided, will also be refused by operation of law. Mr [NBMZ] has no other pending visa applications.
9. If you decide to refuse Mr [NBMZ’s] application for a Protection (Class XA) visa, the effect of s501F(3) of the Act is that any other visas (except a protection visa) which may be held by Mr [NBMZ] will be cancelled by operation of law. Mr [NBMZ] does not currently hold a visa.
…
Non-Refoulement Obligations
47. Under various international treaties to which Australia is a party, it has obligations not to return (‘refoule’) persons who may face risk of a type set out in those treaties. Such treaties include the Refugees Convention, the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
48. However the existence of a non-refoulement obligation does not preclude refusal of a person’s visa application. This is because Australia will not necessarily remove a person, as a consequence of refusing to grant them a visa, to the country in respect of which the non-refoulement obligation exists.
49. The Independent Protection Assessment determined that Mr [NBMZ] met the criterion for a Protection visa set out in s36(2) of the Act and recommended that he be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 protocol relating to the Status of Refugees (‘the Refugees Convention’) (Attachment C).
…
56. The Independent reviewer also concluded that there is no evidence to suggest that Mr [NBMZ] is a citizen of or has the right to enter and reside in any country other than [Iran] for the purposes of s36(3) of the Act or of Article 1E of the Convention (Attachment C, page 12).
134 This was the only advice to the Minister about the consequences for the applicant of refusal of his application. In my view, the advice was inadequate.
135 There was no question of the applicant being removed from Australia contrary to the Refugees Convention. As explained by the High Court, that would be unlawful.
136 Moreover, the executive government has accepted, in the High Court proceedings to which I have referred and in the present proceedings, that it is not open to Australia (without breach of its international obligations) to deal with a refugee contrary to Article 33 of the Refugees Convention. It is not, with respect, an accurate statement about those matters to say that Australia will not “necessarily” send a refugee back to the country from which they fled. Australia has said repeatedly to its courts that it will not do so.
137 Furthermore, advice in the terms given obscured the fact that the result could only be indefinite detention, a circumstance not mentioned at all in the advice to the Minister. While a ministerial submission may offer a prÉcis, distillation or analysis of relevant matters and considerations, any material omission will affect the decision-making process, perhaps fatally (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Brennan J at 65-66).
138 Perhaps the Minister might be expected to understand, without specific advice to this effect, that refusal of a protection visa to a person found to be a refugee would involve refusal of many of Australia’s protection obligations with respect to that person. That would not be unlawful but it was not without significance, as I will discuss in due course when I deal with the Minister’s decision.
139 However, in my view it was a serious omission not to draw explicitly to the Minister’s attention the fact that when the non-refoulement obligations were honoured with respect to the applicant, the consequence of him having no other visa, coupled with the inability to identify a country which would take him, was that he faced indefinite detention.
The Minister’s decision
140 In view of its significance to the present case, I shall set out the terms of the Minister’s decision in full:
STATEMENT OF REASONS FOR REFUSAL OF A VISA
UNDER SUBSECTION 501(1) OF THE MIGRATION ACT 1958
DECISION BY THE MINISTER OF IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
Mr [NBMZ] [dob]
This statement relates to the application for the grant of a Protection (Class XA) visa to Mr [NBMZ]. Any other visa application by Mr [NBMZ] which is currently undecided will be refused by operation of law, pursuant to subsection 501F(2) of the Act and any other visa held by Mr [NBMZ] at the time of the decision will be cancelled by operation of law pursuant to subsection 501F(3) of the Act.
CHARACTER TEST
1. The character test is defined in subsection 501(6) to include:
For the purposes of this section, a person does not pass the character test if:
…
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention;
…
2. On 3 October 2012, Mr [NBMZ] was convicted in the Darwin Court of Summary Jurisdiction in the Northern Territory of the following offence and sentenced as shown:
• Destroy or Damage Commonwealth property – ordered to be of good behaviour for 18 months with a recognizance of $1000 and to pay reparation in the sum of $8862.58 [sic] to the Commonwealth.
3. The offence was committed on 31 October 2011 whilst Mr [NBMZ] was being held at Northern Immigration Detention Centre in Darwin (NIDC).
4. Mr [NBMZ] has been convicted of an offence that was committed while he was in immigration detention. For the purpose of s501(1) of the Act, Mr [NBMZ] does not pass the character test by virtue of s501(6)(aa)(i) and he has not satisfied me that he passes the character test.
DISCRETION
5. Having found that Mr [NBMZ] does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to refuse to grant Mr [NBMZ’s] visa.
RELEVANT CONSIDERATIONS
Criminal Conduct
6. Mr [NBMZ] has been convicted of the criminal offence of Destroy or Damage Commonwealth property. This involved a violent act which led to the destruction and damage of property and is therefore considered very serious.
7. The Stipendiary Magistrate found that Mr [NBMZ] ‘over-turned two pool tables, a table tennis table, knocked over two fridges, damaged another fridge and freezer, threw a printer, damaged two microwave ovens, two computers, a plasma screen television and roller shutters’.
8. Mr [NBMZ’s] criminal conduct is of a type that will not be tolerated while people are in immigration detention. I am of the view that crimes committed in immigration detention, such as the one committed by Mr [NBMZ], are serious.
9. The Stipendiary Magistrate described Mr [NBMZ’s] behaviour in committing the offences as ‘a stupid and childish tantrum that resulted in this vandalism. It has shown no regard to the Australian taxpayer and the authorities that were looking after him’.
10. I find that the disposition of Mr [NBMZ’s] matter, involving a conviction and an order to be of good behaviour for 18 months with a recognizance of $1000 and to pay reparation in the sum of $8862.58 [sic] to the Commonwealth is reflective of the seriousness of his offence.
11. I further note that Mr [NBMZ’s] migration agent has submitted that ‘the Court recognised the Applicant’s difficult mental state at the time of the offence’.
12. I have had reference to Mr [NBMZ’s] remorse and his actions showing he takes responsibility for his offending by pleading guilty at the earliest opportunity.
13. Mr [NBMZ’s] criminal history record reflects no other history of offending in Australia.
14. I took into consideration that Mr [NBMZ] has been diagnosed as suffering from Post Traumatic Stress Disorder and a Major Depressive Episode. I note that Mr [NBMZ’s] migration agent submitted on his behalf that his crime was ‘committed in the context of clinical depression exacerbated by uncertain legal status in Australia, news of a car accident in which his wife and child was involved and his detention in Australia’.
15. I have also taken into consideration his agent’s statement that there is no risk of the harm reoccurring.
International Obligations
Best interests of Minor Children in Australia
16. The evidence available to me does not indicate that there are any children whose best interests may be affected by the refusal of Mr [NBMZ’s] visa application.
Non-refoulement obligations
17. An Independent Protection Assessment dated 26 April 2012 determined that Mr [NBMZ] is a person to whom Australia has protection obligations under the Refugees Convention and therefore he meets the criterion for a Protection visa set out in s36(2) of the Act.
18. I accept that Mr [NBMZ] has a well-founded fear of being persecuted in the foreseeable future if he was returned to Iran and that Australia has a non-refoulement obligation under the Refugees Convention to Mr [NBMZ] in respect of Iran. I also note the finding that there is no evidence to suggest that Mr [NBMZ] has the right to enter and reside in any safe third country and that relocation within Iran is not a viable option.
19. I note that a decision to refuse Mr [NBMZ] a Protection visa on character grounds is not, in itself, a decision to remove Mr [NBMZ] from Australia, nor does it necessarily lead to such action.
Other Considerations
20. The evidence available to me states that Mr [NBMZ’s] immediate family, which consists of a spouse and a minor daughter, reside in Iran. I have taken into account that my decision may result in continued separation of this family unit.
21. Mr [NBMZ] also has a father, mother, two sisters and three brothers, all of whom reside in Iran.
22. I accept the medical evidence of professionals, inclusive of a psychiatrist and psychologist, that Mr [NBMZ] has ongoing Post Traumatic Stress Disorder and major depression. I accept that he exhibited symptoms of depression and suicidal ideation whilst in immigration detention and attempted to commit suicide at the time of his offending.
23. I have given serious consideration to the evidence informing of Mr [NBMZ’s] ongoing mental health issues.
24. I have also given consideration to Mr [NBMZ’s] ties to Australia; he has a cousin with whom he travelled to Australia who is now an Australian permanent resident.
CONCLUSION
25. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr [NBMZ].
26. In reaching my decision to refuse Mr [NBMZ] a Protection visa, I have taken the view that engaging in criminal behaviour while in immigration detention is serious and that the Australian community has an expectation that people who seek to remain in Australia will respect Australia’s laws and legal authority, and be of good character. I considered that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention.
27. I have given consideration to the professional medical opinions before me, that Mr [NBMZ] is also a man who has serious and ongoing mental health issues.
28. In reaching my decision, I consider that, notwithstanding that Mr [NBMZ] is a person to whom Australia has protection obligations, his behaviour demonstrates a fundamental disrespect for Australian laws, standards and authorities and, consistent with the introduction of the new limb of the character test in s501(6)(aa), that behaviour should attract consequences under the Migration Act.
29. Having given full consideration to all of these matters, I have decided to exercise my discretion to refuse to grant Mr [NBMZ’s] application for a Protection (Class XA) visa, under s501(1), noting that a decision to refuse a visa application is not, of itself, incompatible with Australia meeting its obligations in his particular case.
What constitutes jurisdictional error in the exercise of an administrative discretion?
141 It is very well established that judicial review of administrative decision-making does not provide an opportunity for a court to substitute its own view of the merits of a particular decision. Nevertheless, the freedom thus accorded to decision-makers is confined by some equally well established limits.
142 A decision-maker must: correctly appreciate the statutory context in which the decision is to be made; apply the correct test in the exercise of the discretion; pay regard to all necessary considerations for the exercise of the discretion; and, not be influenced by matters extraneous, foreign or irrelevant to the exercise of the discretion.
143 In differing statutory contexts those requirements have been variously expressed. Sometimes it is necessary to make a distinction between “excess or want of jurisdiction” and “wrongful failure or refusal to exercise jurisdiction” (see Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132 (“PSA”) per Brennan J at 142).
144 Speaking of the second category, Brennan J said, in PSA (at 144):
The Full Commission misconceived its jurisdiction and failed to consider the true question which they had to·decide, … This was a jurisdictional error.
(Citation omitted.)
145 Dawson and Gaudron JJ, in the same case, were of the view that there had been jurisdictional error because the Industrial Commission of South Australia had dealt with a “matter or issue which it was not [then] called upon to determine” (at 161).
146 In Craig v South Australia (1995) 184 CLR 163 (“Craig”) the High Court examined the question of jurisdictional error in an inferior court (there the District Court of South Australia). The Court also made statements about jurisdictional challenges to decisions of administrative tribunals which have been repeatedly cited and followed in the years since. The High Court said (at 179):
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
147 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Gaudron J said (referring to a line of cases which included PSA) (at [41]):
41 … there is said to be a “constructive failure to exercise jurisdiction” when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.
(Citation omitted.)
148 McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) referred (at [82]) to the passage from Craig which I set out above and continued:
82 … “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. …
(Citations omitted.)
and (at [83]):
83 … it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it “exceeds its authority or powers”. If that is so, the person who purported to make the decision “did not have jurisdiction” to make the decision he or she made, and the decision “was not authorised” by the Act.
and (at [84]):
84 … If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. …
149 Most recently, in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225, French CJ said (at [23]):
[23] … Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. …
(Citation omitted.)
150 Hayne, Kiefel and Bell JJ also referred (at [71]) to:
[71] … the requirement of the law that a decision-maker understand his or her statutory powers and obligations. …
151 One further matter should be noted. It concerns the need to give proper attention to the merits of the application under consideration. In Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (“SZJSS”), a unanimous High Court said, with apparent approval (at [26]):
26 In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the AD(JR) Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister’s delegate was required to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy”.
(Citations omitted.)
152 Those matters are all ones which require examination in the present case, when attention is given to the challenges made by the applicant to the Minister’s decision.
153 In NBNB I have discussed in greater detail a submission made by the Minister in that case (but not in the present case) to the effect that the Minister is not obliged to take into account either the circumstances in which a visa applicant committed criminal conduct, nor the consequences (e.g. detention) of a decision to refuse a visa. The submission was based upon a judgment of a Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 (“Huynh”). As a result of that discussion I concluded that Huynh does not detract from the principle distilled in SZJSS that it is not permissible to ignore the merits of a particular case in order to give effect to a rule or policy. The merits of a particular case may or may not extend to consideration of the conduct which causes a visa applicant to fail the character test. In the present case the Minister did enter that territory because he made judgments about the applicant’s conduct in paragraph 28 of the Reasons. Furthermore, it will always be necessary, in my respectful opinion, to proceed upon a proper understanding of the statutory scheme and the legal consequences for the applicant of the decision to be made about the visa application. I will not add further to that discussion in the present judgment but my views apply equally to the present case.
The challenges to the Minister’s decision
154 The applicant’s challenge to the Minister’s decision focussed on the legal consequences of the following propositions:
1. The submission to the Minister (i.e. the Minute) failed to adequately put or summarise the applicant’s mental state and motivation.
2. The Minister failed to deal with the consequence for the applicant of refusal of a visa – i.e. removal to Iran or indefinite detention.
3. The Minister did not, as he should have done, properly consider whether the nature of the applicant’s conduct on 31 October 2011 truly outweighed the consequences for him of refusal of a visa.
4. The Minister’s stated purpose of providing a disincentive, or deterrence, to others was not a matter he was entitled to take into account, or to allow to dominate the outcome of the individual visa application before him.
5. The Minister misunderstood and misapplied s 501(6)(aa) of the Act and thereby failed to truly exercise the discretion given by s 501 of the Act.
The applicant’s mental state
155 Counsel for the applicant argued that the Minister had not been provided with relevant information which was highly significant to his decision about whether the applicant should be refused a visa. The material related to assessments made by case workers from International Health and Medical Services (“IHMS”) which provided counselling and medical services at the Detention Centre. This material, it was submitted, provided an important context for the applicant’s conduct on 31 October 2011.
156 For example, a case note made on 24 October 2011 said:
… IHMS have stated that they have ‘extremely concerned’ for this client and that he is on the top of their concerned list. I met with Mr [NBMZ] on Thursday, I too am greatly concerned for Mr [NBMZ’s] mental health, he states that he is highly anxious regarding the well-being of his family who were in car crash and he is unsure of there [sic] condition. Client has stated that he will commit suicide if he finds that his daughter has passed away. We have unconfirmed reports from a close friend of his in the compound that his daughter has passed away. Mr [NBMZ] is not aware of this. …
157 A case note made on 31 October 2011, shortly after the incident said:
… He is not coping well not knowing the status of the health of his wife and daughter. IHMS believe it is important that he is able to find out ASAP whether or not his wife and child are ok. It is better that he knows, even if it is sad news. There was some suggestion that DIAC work with the client and his cousin in appealing to him to get the information, however if he is unable to get it, then the Australian Red Cross might need to assist. IHMS have advised that the recent property damage was done out of frustration for his current situation not because he was “being behavioural”, protesting or being malicious.
(Emphasis added.)
158 Counsel for the applicant drew attention to the passage I have emphasised as an example of information which should have been put directly before the Minister. However, matters of this kind were expressly referred to by the applicant’s migration agent in representations to a delegate of the Minister on 28 March 2013, that the applicant should not be refused a visa. The migration agent said:
19. The Applicant’s crime was committed in the context of clinical depression exacerbated by his uncertain legal status in Australia, news of a car accident in which his wife and child was involved, and his detention in Australia. …
159 The migration agent referred to a “Standard Health Event’ report from IHMS (obtained from the Department under Freedom of Information legislation) dated 31 October 2011 which recorded:
Wife and daughter was involved in a MVA a month ago. His last contact was a month ago when he was told that his daughter is in ICU and his wife has a fracture. He has not had any news since and is very distressed.
160 The representations by the migration agent had, included as attachments, reports from a consultant psychiatrist and a psychologist. The representations, the attachments, and other matters relevant to the applicant’s mental health were drawn to the Minister’s attention in the Minute to him seeking a decision about the application for a protection visa. The following “mitigating factors” were put before the Minister:
Mitigating Factors
35. Defence counsel submitted in court on 3 October 2012 that Mr [NBMZ] was suffering from a ‘great deal of mental health issues’, had attempted suicide on the day of the incident and was taken to the Darwin Hospital (Attachment F, pages 4).
36. Mr [NBMZ’s] psychologist advised defence counsel that Mr [NBMZ] had been formally diagnosed with ‘post traumatic stress disorder’ and was in the process of obtaining treatment through medication and an appointment with a psychiatrist (Attachment F, page 4).
37. Mr [NBMZ’s] migration agent considers that his mental health influenced his behaviour and states:
‘The Applicant’s crime was committed in the context of clinical depression exacerbated by his uncertain legal status in Australia, news of a car accident in which his wife and child was involved, and his detention in Australia’ (Attachment J, page 4).
38. Since committing the offence, Mr [NBMZ] has continued to seek assistance for his mental health issues (Attachment J, page 4). He has received treatment from consultant psychiatrist, Dr Dilprasan De Silva, who has prescribed medication and provided some supportive psychotherapy (Attachment L).
39. Mr [NBMZ] has also been receiving counselling from Ms Katayoon Haghseresht, principal psychologist at Takes Care Psychology Pty Ltd. In a report to Dr Keith Woodhead dated 27 February 2013 she states:
‘Throughout my sessions with Mr [NBMZ], he has presented with severe levels of anxiety, depression and stress. He has frequently presented with suicidal ideation and self harm; one of the main reasons for this has been his prolonged state of remaining in the Community Detention Program, feeling responsible to financially support his mother and sisters who remain in a small village in Iran. Furthermore, his mother has been severely burned in a domestic accident and needed urgent and long-term medical care in which he has been unable to fully support’ [Transcribed as written] (Attachment K).
40. In relation to potential risk to the Australian community, the migration agent submitted that Mr [NBMZ] has spent over 21 months in Australia and has attempted to establish an identity in this country by ‘seeking continued medical treatment’. He stated that Mr [NBMZ] has shown a steady improvement and is ‘seeking to work towards greater improvement in life’ (Attachment J, page 5).
41. Stipendiary Magistrate Cavanagh took into account Mr [NBMZ’s] plea of guilty when considering an appropriate disposition. It is open for you to find that Mr [NBMZ] is remorseful and has simplified the judicial process with his plea of guilty.
42. In conclusion to the submission, Mr [NBMZ’s] migration agent states:
‘In these circumstances, the Applicant is no longer a threat to the Australian community and has spent a significant time in Australia learning and appreciating Australia’s values. He is remorseful of his past actions and seeks to become a positive contributor in Australian society once he has finalised his immigration matter. Therefore the discretion to refuse to grant the Applicant a PV under s501(1) of the Act should not be exercised’ (Attachment J, page 5).
43. It is open for you to find that Mr [NBMZ] is taking measures to learn to cope more adequately with the stressors that precipitated his offending and is endeavouring to improve his life and adapt to Australian society and values.
44. Mr [NBMZ’s] migration agent further submitted that Mr [NBMZ] ‘did not harm (nor threaten to harm, apart from himself) any individuals, but damaged property in an enclosed environment in a detention centre. The Applicant has not shown any intent to engage in criminal or serious conduct in a public setting’ (Attachment J, page 4).
45. Mr [NBMZ] arrived in Australia on 24 June 2011 and has remained onshore for more than two years. Mr [NBMZ] had been in Australia for over three months at the time of the above offending.
161 In my view, there was no apparent lack of diligence on the part of those advising the Minister concerning the material relating to the applicant’s family, or his mental state at the time of the incident. The Minister was advised, and accepted, that the applicant was in a distressed state at the time of the incident.
162 The basis for the applicant’s distress remains unclear in significant aspects. However, whatever the actual foundation for the applicant’s distressed state at the time of the incident on 31 October 2011, it is apparent that the Minister concluded, nevertheless, that his conduct represented “a fundamental disrespect for Australian laws, standards and authorities”. No doubt there could be a vigorous debate about whether that was a correct conclusion, based on the material before the Minister. However, that is not a debate which will resolve any legal issue in the present application. It would be a debate about the merits of the decision; not one which identified a jurisdictional error.
163 I would therefore not accept that the Minister’s decision should be set aside because he failed to take into account the applicant’s mental state, or because he was not provided with relevant material concerning that issue.
Removal from Australia
164 The Minister’s consideration of the consequences for the applicant of refusal of a visa appears in paragraphs 17-19 of the Reasons. In my view, paragraph 19 betrays a lack of understanding of the operation of the Act.
165 The decision to refuse a visa was, in all but form, a decision which had the consequence that the applicant must be removed from Australia as soon as reasonably practicable.
166 The Minister’s decision appears to proceed upon the premise that, despite refusal of a visa, the applicant was permitted to remain in Australia. Although selection of the country to which the applicant might be removed remains with the executive government, the obligation to identify such a country if possible, and remove the applicant to it as soon as reasonably practicable, was clear and undiminished by Article 33 of the Refugees Convention. Any difficulties in removing the applicant are not to be equated with permission for him to remain. He is not permitted to remain in Australia. That is the direct consequence of the Minister’s decision.
167 In my view, this challenge is made out. It provides one reason to set aside the Minister’s decision.
Indefinite detention
168 The Minister’s decision said nothing which would reveal an appreciation of the fact that if, despite the obligation that he be removed as soon as reasonably practicable, the applicant did remain in Australia it could only be in circumstances that he was liable to detention. Indefinite difficulty of removal meant indefinite detention.
169 That the applicant was required by the Act to be detained cannot be doubted and was not suggested, except by reference to the speculative possibility that he might be given some form of visa in the future, which possibility I earlier rejected as being irrelevant.
170 In a sense, this feature of the applicant’s circumstances also raises similar questions to the issue to be discussed next, but it merits separate discussion because of its dire consequences for the applicant even if he remains in Australia.
171 If he does so remain, he will do so as a detained, unlawful, non-citizen subject to immediate removal should a country be found which is willing to take him where he will not face persecution. He will have no say in any such arrangements. His detention will be indefinite (so far as can be known) and certainly indeterminate.
172 Section 501G(1) of the Migration Act requires that the Minister notify a visa applicant of refusal of the application and give written reasons why the provision (i.e. s 501) prevented the grant of the visa. Section 25D of the Acts Interpretation Act 1901 (Cth) provides:
25D Content of statements of reasons for decisions
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
173 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Gleeson CJ said (at [5]):
5 … The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. …
174 Gaudron J said (at [37]):
37 As already indicated, if in its written statement setting out its decision, the Tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is to be assumed, consistently with the clear directive in s 430 of the Act, that the Tribunal has not regarded that question as material. …
175 McHugh, Gummow and Hayne JJ said (at [69]):
69 It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. …
(Emphasis in original.) (Citations omitted.)
176 Finally, Kirby J said (at [133]):
133 Facilitating effective judicial review: The purpose of provisions such as s 430 is to oblige disclosure of the reasoning of the decision-maker and to provide the person affected with the essence of that reasoning in order for that person either to accept the decision as one open in the circumstances or to be advised of legal rights of appeal, review or other redress.
(Citations omitted.)
177 Applying those observations to the present case it is sufficiently apparent, in my view, that the Minister gave no thought to, or alternatively regarded as irrelevant or not significant, that the applicant would, as both a legal and practical consequence of the decision, face the prospect of indefinite detention if a visa was refused.
178 In my view, the prospect for the applicant of indefinite detention was not a matter which could be overlooked, disregarded or allowed to pass without comment in a proper determination of the application for a visa. I see no alternative to the conclusion that the Minister did not pay any regard to this matter when he made his decision.
179 For that reason, also, the Minister’s decision should be set aside.
The objective nature of the applicant’s conduct
180 I shall deal in the next sections with the fact that the Minister’s decision was based, in apparently large part, on factors unrelated to the circumstances and claims of the applicant. Here, I wish to deal with the way in which the Minister treated the applicant’s conduct.
181 The Minister’s reasoning is set out in paragraphs 8, 28 and 29 of the Reasons. In essence, the reasoning is: criminal conduct of this type in immigration detention will not be tolerated; the conduct was serious, because committed in immigration detention; the conduct demonstrates a fundamental disrespect for Australian laws, standards and authorities; and, refusal of a visa is not incompatible with Australia’s obligations in this case.
182 The first three premises in this line of reasoning are certainly contestable upon the ground that they are exaggerated and unbalanced, whatever the policy position to which they give expression.
183 One measure of the seriousness of the applicant’s conduct is the penalty imposed under Australia’s own laws. The Minister’s remarks are out of all proportion to that penalty and the sentencing remarks which accompanied its imposition. In any event, as criminal conduct in its own right, the applicant was dealt with fully on 3 October 2012, as any Australian citizen would have been. It is not open to punish him again, under the Australian system of justice, for the same conduct.
184 One challenge, therefore, to the Minister’s approach is that he impermissibly set out to punish the applicant again for his conduct, even though as criminal conduct the penalty contemplated by Australian law had been fully applied.
185 It has been held in this Court that cancellation of the visa of a person with a criminal record on “character grounds” does not, on that account alone, represent an additional punishment (see e.g. Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 (“Djalic”). In Djalic a Full Court said that protection of the Australian community lay “at the heart” of the discretionary process in s 501 to cancel a visa (see at [68], [72]). In that context, the Full Court said it was permissible to take into account factors of “general deterrence” subject, perhaps, to the qualification that it should not be the sole purpose of cancellation (at [76]). I shall return to those issues.
186 However out of proportion the Minister’s response to the applicant’s conduct may seem to be, it may not be said in my view (subject to the matters yet to be discussed) that it was not open to the Minister to refuse the applicant a visa because of his conduct upon the view, however contestable, that his behaviour represented a fundamental disrespect for Australian laws, standards and authorities. Those are not judgments for this Court and it may not be said in my view that, in this case, they breached any required standard of legal reasonableness (c.f. Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1).
187 The final element in the scheme of reasoning set out earlier (i.e. Australia would not breach its obligations by refusing a visa) requires separate consideration.
188 The Minister’s statement that refusal of a visa was not “of itself” incompatible with Australia’s obligations is no doubt legally correct. The Minister could not be obliged to grant a visa. He had a discretion to refuse a visa even though the applicant was an acknowledged refugee who had no known criminal record (other than his conviction on 3 October 2012) and nowhere to go.
189 However, it was not in my view irrelevant that the applicant is a refugee and that, by refusing him a visa, Australia would refuse to honour its protection obligations in respect of him, other than non-refoulement. The plight presented by the fact that the applicant is a refugee fleeing persecution, in respect of whom Australia has accepted an international obligation of protection was a matter, in my view, that demanded attention in the applicant’s case. If judgments were to be made adverse to him arising from damage to Commonwealth property (for which in any event he was ordered to pay) and consequences imposed for that conduct, then any assessment of the need and justification for such consequences had to take into account his circumstances. To put it another way, it was not open to refuse a visa merely to give effect to a policy preference, without attention to the merits of the application. And if regard was to be paid to the individual circumstances of the applicant (as it purportedly was when reference was made to his conduct) then it had to extend to the consequences for him as a refugee. Apart from the consequences for the applicant of refoulement or detention some account had also to be paid to the acknowledgement that he was a refugee in respect of whom Australia had voluntarily accepted protection obligations. There is no indication in the Minister’s Reasons that any regard was paid to those matters.
190 For the reasons given earlier, it must be taken that the Minister gave no attention to those matters, or put them aside. On either view that represented a failure to properly perform the function upon which the Minister was engaged.
191 That is a further reason why the Minister’s decision should be set aside.
Risk to the Australian community
192 If the Minister’s decision was to avoid the charge that he was intent on some form of punishment (normally the preserve of the courts) then his assessment of whether the applicant should be granted a visa should also have been directed to some assessment of the consequences for the Australian community if the applicant was granted a visa. Normally, there should be an attempt to assess the likelihood of similar, or other, criminal conduct of the kind which had aroused the Minister’s displeasure and provoked the censorious conclusion that the applicant had demonstrated a fundamental disrespect for Australian laws, standards and authorities. That is because the discretion to be exercised under s 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.
193 The decision to place the applicant in community detention after the incident on 31 October 2011 (by decision of the Minister) and the fact that he was released back into community detention after his conviction on 3 October 2012, each suggest that no real apprehension was then entertained that he was, or would be, a risk to the Australian community.
194 Although the Minister’s Reasons referred to the applicant’s lack of any criminal history (at paragraph 13) and to the representations on his behalf that there was no risk of re-offending (at paragraph 15), there is no indication in the Minister’s decision that he gave any thought to, or made any assessment of, whether there was any risk at all to the Australian community if the applicant was granted a protection visa. This failure by the Minister also, to consider a relevant circumstance, is yet a further ground for relief.
195 It is not necessary in the present case to consider whether the approach taken betrays an intent to impose further punishment for the same conduct for which the applicant was punished on 3 October 2012.
The role of deterrence
196 Paragraphs 8 and 26 of the Minister’s Reasons make it apparent that at least a substantial purpose of the Minister’s decision was to provide a “disincentive” to others in immigration detention from engaging in criminal conduct. Presumably, the intended message was that criminal conduct of even a minor kind might result in refusal of a visa whatever the merits of a visa application might otherwise be.
197 I referred earlier to Djalic. In Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172 a Full Court also referred to the possibility that a decision which was based solely or substantially on deterrence of others and simply punitive might not be sustainable (see at [42]). Nevertheless, the Full Court went on to accept (at [44]):
44 … The possible consequence of deterring other non-citizens from committing similar offences was not an irrelevant consideration in the exercise of the discretion conferred on the Minister by s 501(2) to decide whether the appellant should be permitted to remain in Australia (see generally Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 at [75]-[77]).
198 In the present case, a reading of the Reasons as a whole leaves me with the firm impression that the Minister’s decision was made with an invincible disregard for the circumstances of the applicant and for a purpose which was not related at all to the applicant’s particular claims on Australia for protection from persecution.
199 However, that impression will not in isolation sustain a finding of jurisdictional error in relation to this particular issue in this case. I would therefore not grant relief on this ground in the present case.
200 The reasons I have given in NBNB for taking a different view in those cases may not, it seems to me, be simply transplanted into the present case.
The new limb of the character test
201 Not infrequently, the occasion for the exercise of a discretion to refuse or cancel a visa under s 501 arises because a person has a substantial criminal record within the meaning of s 501(6)(a) and (7) of the Act. Such cases call for the consideration of conduct of an objectively serious character. That may not be said, with the same force, of s 501(6)(aa).
202 Statements by a sentencing magistrate, for example, that conduct is “serious” may amount to no more than an indication that it is appropriate to record a conviction. In the present case, a better guide to the objective seriousness of the offence is that the applicant was released without imprisonment, and without fine.
203 Paragraph 28 of the Reasons says that “consistent with the introduction of the new limb of the character test” the applicant’s conduct “should attract consequences”.
204 The Minister’s decision, therefore, appeals to the premise that the insertion of the new provisions suggests their exercise in the present case. That misunderstands the statutory scheme. Section 501(6)(aa) provides the occasion, but not the reason, for the exercise of a discretion to refuse a visa.
205 The critical flaw in this part of the Minister’s reasons is that it betrays a misunderstanding of the statutory scheme, and the need in each case to make an individual assessment of the visa application. That was not done. The error is jurisdictional in character. That is yet another reason to set aside the Minister’s decision.
A fundamental flaw
206 The various errors which I have identified above appear to me to be manifestations of the same basic failing on the part of the Minister, and those advising him, concerning the operation of the Act in general, and s 501 in particular.
207 As the object of the Act stated in s 4 makes clear, the primary focus of attention is who may enter and remain in Australia. In the administration of the visa scheme which the Act establishes, the interests of the Australian community are obviously paramount. An individual visa applicant, however, is entitled to assessment of his or her application by consideration of the merits of the application, including the legal (and perhaps practical) consequences of a grant or refusal of the application in his or her case. In a case, such as the present, where all statutory requirements have been satisfied, and a valid application has therefore been made, s 65 of the Act provides that a visa must be granted unless (relevantly here) grant of a visa is prevented by s 501. The exercise of a discretion under s 501 arises with respect to an individual visa application. Even in a case where s 501 applies (i.e. a visa applicant does not pass the character test) that application for a visa is, by reference to the interests of the Australian community, the subject for attention.
208 Whatever place a general policy may have in establishing guidelines for the assessment of individual cases, the policy cannot be substituted completely for individual attention to the application which requires a decision (see SZJSS referred to earlier). In the respects I have identified, that attention was not given.
Natural justice
209 Although the discussion to this point has concerned the arguments put in the present case, there is one further argument dealt with in NBNB which appears to me to be indistinguishable from the factual circumstances of the present case. It was that the Minister had misleadingly encouraged the applicants in NBNB to believe that their visa applications would be assessed by reference to Direction No. 55, issued by the Minister to guide decision-makers dealing with refusal or cancellation of visas under s 501 of the Act.
210 In the present case, as in NBNB, the applicant was sent a copy of Direction No. 55 when he was advised that consideration was being given to refusing him a visa. For the same reasons I gave in NBNB it appears to me that the Minister denied the present applicant natural justice when he refused a visa by reference to a consideration not mentioned in Direction No. 55, or at least not mentioned in a way which might alert the applicant to its significance.
211 That would appear to me to provide an additional reason why relief would be available in the present case, even though it was not relied on.
Conclusion and relief
212 In my view, a case of jurisdictional error has been established by the applicant in the respects I have identified.
213 In my view, as sought by the applicant, writs of certiorari and prohibition should issue to quash the Minister’s decision and ensure it cannot be used as a foundation for action against the applicant.
214 I do not think it necessary to grant a writ of mandamus, as the applicant sought. The effect of setting aside the Minister’s decision will be that the Minister is obliged to deal with the application again, in accordance with the Act. It is not, at present at least, appropriate to assume that the necessary response to the requirements of the Act will be delayed or not made.
215 The Minister should pay the applicant’s costs.
| I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. |
Associate:
Dated: 9 April 2014
