FEDERAL COURT OF AUSTRALIA

AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The cross-appeal be allowed.

3.    The decision of the primary judge be set aside and in lieu thereof:

(a)    the application be dismissed; and

(b)    the applicant pay the respondent’s costs.

4.    Unless either party applies within 7 days for a different order with respect to costs, the appellant pay the respondent’s costs of the appeal and cross-appeal.

5.    The parties file a joint submission indicating any redactions that should be made to the Court’s reasons for judgment (or competing submissions if agreement is not reached) on or before 12 noon on Tuesday, 26 February 2019. The Court will then consider publishing a redacted form of its reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO AND THAWLEY JJ:

1    On 9 January 2018, the Minister for Home Affairs made a decision under s 501A(2) to refuse the appellant’s application for a Protection (Class XA) visa. The appellant sought judicial review of that decision under s 476A of the Migration Act 1958 (Cth).

2    On 21 June 2018, the primary judge set aside the Minister’s decision, accepting “ground 2” of the grounds of review, on the basis that the Minister erroneously understood that the appellant would not be refouled under s 198 of the Act in breach of Australia’s non-refoulement obligations: AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 at [82].

3    The primary judge rejected other grounds which had been put to him. Of particular relevance to the appeal, the primary judge rejected “ground 1” of the grounds of review, that the Minister’s decision under s 501A(2) was made without jurisdiction because the purported exercise of power occurred outside of a reasonable time.

4    Although successful in setting aside the decision under s 501A(2), the appellant appealed, contending that ground 1 should have been successful; the primary judge should have held that the purported exercise of power occurred outside of a reasonable time. The appellant sought a declaration that the Minister no longer had the power to make a decision under s 501A(2) because the time in which such a decision could lawfully be made had expired.

5    The Minister cross-appealed on the ground that the primary judge erred in concluding that the Minister had misunderstood the legal consequences of his decision and failed to take those consequences into account. The Minister also filed a notice of contention, which he sought to amend at hearing. The notice of contention, discussed below, related to ground 1.

6    For the reasons which follow:

(1)    the cross-appeal should succeed;

(2)    the appeal should be dismissed;

(3)    the notice of contention and proposed amended notice of contention do not need to be considered.

BACKGROUND

7    The appellant is a citizen of [redacted]. She was arrested on [redacted] during an investigation by Victoria Police into a [redacted]. The appellant and her partner were identified as [redacted].

8    In [redacted], the appellant was sentenced to imprisonment for four years and three months for [redacted] offences. She pleaded guilty to three charges of [redacted]. She also pleaded guilty to a summary offence of dealing with property suspected of being the proceeds of crime.

9    The County Court of Victoria’s reasons for sentence stated at [redacted]:

[redacted]

10    The appellant applied for a protection visa on [redacted]. Her application was refused by a delegate of the Minister. She sought review in the Administrative Appeals Tribunal. On [redacted], the Tribunal (First Tribunal) found that the complementary protection criterion in s 36(2)(aa) was satisfied. Its decision was in the following terms:

The Tribunal remits the matter for reconsideration and directs that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

11    On remittal, a delegate of the Minister refused her protection visa application on character grounds pursuant to s 501(1) of the Act.

12    The appellant again applied for review. The Tribunal (Second Tribunal) set aside the delegate’s decision and substituted for it a decision that the discretion in s 501(1) to refuse the appellant’s visa on character grounds should not be exercised.

13    On 9 March 2017, the Minister gave notice to the appellant that he was considering setting aside the Second Tribunal’s decision and refusing to grant her a visa pursuant to s 501A(2) of the Act. The appellant’s representative made submissions on behalf of the appellant, the last of which was made on 13 April 2017.

14    On 9 January 2018, the Minister decided to exercise the power in s 501A(2) to set aside the decision of the Second Tribunal and refuse her application for a protection visa. In making that decision, and as discussed in further detail below, the Minister considered Australia’s international non-refoulement obligations which the first Tribunal had found Australia owed to the appellant.

THE CROSS-APPEAL

15    The cross-appeal centres on three paragraphs of the Minister’s decision:

86.    I am aware that the statutory consequence of a decision to refuse [the appellant]’s application for a Protection visa is that, as an unlawful non-citizen, [the appellant] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

87.    I am also mindful that at the time of the insertion of s197C in the Act, the Government indicated that Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198. These mechanisms included the use of the Minister's personal non-compellable powers in the Act, including the power in s195A under which I may grant a visa to a person who is in immigration detention if I think it is in the public interest to do so. I am aware that the potential for using s195A in order to meet Australia's international non-refoulement obligations is pertinent to [the appellant]’s case and this potential is encompassed in my consideration of alternative management options in relation to her.

88.    I have had regard to the existence of non-refoulement obligations in this case and I have carefully weighed this factor against my finding that it is in the national interest to refuse her application for a protection visa having regard to the seriousness of her criminal history and past involvement in organised criminal activity.

16    The primary judge considered that, whilst the Minister correctly summarised the effect of ss 198 and 197C of the Act in his reasons at D[86], the first sentence of D[87] demonstrated a misunderstanding as to the operation and effect of those sections. His Honour considered this sentence revealed that the Minister thought the appellant would not be refouled in breach of Australia’s non-refoulement obligations. His Honour said at J[82]:

While the Minister correctly summarised the effect of ss 198 and 197C in [86] of the Statement of Reasons, this must be read together with [87] of the Statement of Reasons. I consider that paragraph to demonstrate a misunderstanding as to the operation and effect of ss 198 and 197C. In the first sentence of [87], the Minister stated that he was mindful that “at the time of the insertion of s197C in the Act, the Government indicated that Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198”. I do not consider this to be merely a statement about the historical position as at the time of introduction of s 197C. There is no suggestion in the Statement of Reasons that the position had subsequently changed, and there was no reason to refer to this if it did not have ongoing relevance. Further, I do not consider this statement to refer only to the possibility that Australia could still meet its international non-refoulement obligations. The sentence is expressed in definite terms – Australia “will” continue to meet its international non-refoulement obligations. In other words, the sentence expresses an understanding that non-citizens would not be refouled under s 198 in breach of Australia’s international non-refoulement obligations. However, as outlined above, the true position was that, subject to consideration of alternative management options such as s 195A, a person in the position of the applicant would be removed as soon as practicable, irrespective of whether Australia had international non-refoulement obligations in respect of the person.

17    In our view, the Minister understood that the consequence of his decision was that the appellant would be removed from Australia to [redacted] in breach of Australia’s non-refoulement obligations. We say that for the following reasons.

18    At D[83] and D[84], the Minister made it clear that he understood that the First Tribunal had found that Australia had non-refoulement obligations to the appellant. His reasons, in those paragraphs and at D[53], disclose that he was aware of the factual substratum giving rise to that obligation:

53.    I have taken into account [the appellant]'s statements that associates or members of the [redacted] have made threats made against her because of her assistance to the police. I am aware that these threats are the basis of [the appellant]'s protection claims, and I considered Miss Jackson's submission that [the appellant]'s cooperation incurred significant risk to her own life. I accept that these threats suggest that she is a low likelihood to have any further involvement in the [redacted] in the future.

…

83.    [The appellant] has submitted that her cooperation with the police has placed her life at risk from members of the [redacted], some of whom are [redacted] nationals residing in [redacted]. I note that [the appellant] submits that the [redacted] members in [redacted] know how to locate her if she returns to [redacted] and they may kill her or cause her serious harm. [the appellant] has submitted that authorities in [redacted] are unable to protect her from the [redacted] members.

84.    I accept that the Administrative Appeals Tribunal has found on 11 January 2016 that Australia has non-refoulement obligations towards [the appellant].

19    The Minister correctly described the legal effect of ss 198 and 197C at D[86], set out above. It is significant that this paragraph precedes D[87].

20    Reading the first sentence of D[87] in context, the statement that the Minister was “mindful” of what the Government had said when s 197C was introduced, indicates that the Minister was “mindful” that the effect of his decision was that the appellant would likely be refouled despite the statement the Government had made when s 197C was introduced as to what Australia “will” do in the future.

21    The first sentence of D[87] is a correct statement of fact. Indeed, each sentence in D[86] and D[87] is a correct statement.

22    There is nothing in the reasons outside of the first sentence of D[87] to suggest anything other than that the Minister expected the appellant to be refouled as a consequence of his decision.

23    At D[88], the Minister stated that he had “carefully weighed” the non-refoulement obligations against his finding that it was in the national interest to refuse the appellant’s application for a protection visa. This would not have been necessary if the Minister was proceeding on the basis that the appellant would not be refouled because Australia’s non-refoulement obligations would be met by an “alternative management option”, such as s 195A of the Act.

24    The same point emerges from D[101]-[102]:

101.    I found that the above consideration outweighed the countervailing considerations in [the appellant]'s case, including non-refoulement obligations, [the appellant]'s mental health, the best interests of [Miss X] which I took into account as a primary consideration, and the impact on family members, particularly [redacted] residing in Australia.

102.     I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations such as in [the appellant]'s case, are insufficient for me not to refuse the visa application.

25    The Minister’s reasons for decision do not mention indefinite detention as a possibility. This is because it was not a possibility. It was not a possibility because, as the Minister noted at D[86], the effect of s 197C was that the appellant was to be refouled notwithstanding that Australia owed the appellant non-refoulement obligations. It was not contemplated that the appellant would be kept in indefinite detention. She was to be refouled in breach of Australia’s non-refoulment obligations.

26    The foregoing conclusion, arrived at by reading the Minister’s reasons in accordance with the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, is also supported by the surrounding context.

27    First, the Minister’s reasons for decision were attached to a “submission” from his Department which noted that, if the Minister decided to refuse the visa application under s 501A(2), then he could consider “alternative management options” which included granting a visa under s 195A. At the time of making the decision under s 501A(2), namely on [redacted], the Minister turned his attention to s 195A, by deleting it as a possibility, and stating that he did not want a submission on “alternative management options”. At the same time, he deleted as an alternative management option making a determination under s 197AB that a person can reside at a specified place instead of in immigration detention: see also J[10].

28    A second aspect of surrounding context, as the discussion below indicates, is that the reason for the delay in making the decision under s 501A(2) substantially revolved around a desire to find a solution to deal with the decision of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576. In that case, North ACJ held that the Minister had misunderstood the operation of s 197C. The Minister’s actions in the present case were aimed at refouling the appellant notwithstanding that the First Tribunal had concluded that Australia owed the appellant non-refoulement obligations and to do so in a manner which made it clear that he understood the operation of s 197C.

29    After the hearing of this appeal, the decision of the primary judge was referred to by Rares J in FRH18 v Minister for Home Affairs [2018] FCA 1769. Rares J concluded on the facts of the case before him (like the primary judge in this case) that the Minister had misunderstood, and therefore failed to take into account, the legal consequences of his decision. For the reasons set out earlier, we are of the view that the Minister in this case did not misunderstand the legal consequences of his decision. If he had, then the primary judge’s decision would have been correct. It follows that FRH18 is of no particular assistance.

THE APPEAL AND THE NOTICE OF CONTENTION

30    The appellant submitted to the primary judge, and maintained before this Court on appeal, that the case law supported the following propositions which were summarised by the primary judge at J[59]:

(a)    A delay which is not satisfactorily explained is to be regarded as unreasonable: BMF16 at [27] (citing various authorities). This means the onus will be on the decision-maker to provide a reasonable explanation for a delay: BMF16 at [28].

(b)    What is a ‘reasonable time’ is objectively determined: Bidjara Aboriginal Housing and Land Company Ltd v Indigenous Land Corporation (2001) 106 FCR 203 (Bidjara) at [28].

(c)    In assessing the bounds of a ‘reasonable time’, the legislative context is informative: BMF16 at [25]; Bidjara at [28]-[31]. Thus, if the statutory purpose of the power is for ‘prophylactic’ protection of the public, “there should be as little delay as possible”: Kardas v Australian Securities Commission (1998) 53 ALD 303 at 313. In BMF16, this was explained in terms of “the importance of [the exercise of the power] both to the public and to the interests of the persons it is directed to address”: BMF16 at [25].

(d)    Relatedly, the “likely prejudicial impact upon interest-holders of any delay” is important: BMF16 at [25] and [29]. Thus, it was significant in Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 (Wei) at 477 that the delay caused the affected persons to become illegal entrants.

(e)    Prejudice is especially significant where delay affects the fundamental right to liberty; statutes are to be construed to give maximum effect to that fundamental right unless there is clear legislative intent to the contrary: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, 532. See also Coco v R (1994) 179 CLR 427 at 437.

(f)    Administrative convenience does not factor into what is a ‘reasonable time’: Commonwealth v Fernando (2012) 200 FCR 1 at [91]. Similarly, a lack of resourcing does not make a delay reasonable: Wei at 477.

(g)    The consequence of a decision being made after the expiry of the ‘reasonable time’ limit is that it is out of time, beyond the power of the decision-maker, and therefore invalid: Craig v South Australia (1995) 184 CLR 163 at 177; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 573-574.

31    His Honour did not expressly deal with each of the propositions set out above, said to emerge from the case law. He did however, consistently with a concession made by the Minister, accept at J[61] that, “as a principle of statutory construction, where no time limit is prescribed for the doing of a particular act, a court may imply a requirement that the act be done within a reasonable time”, citing Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573-574.

32    His Honour also set out at J[61] the test for determining whether a reasonable time limit has been exceeded, namely that set out in Thornton v Repatriation Commission (1981) 52 FLR 285 at 292:

… [W]hether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity.

33    The primary judge concluded that the delay was not unreasonable.

34    The proposed amended notice of contention took issue with his Honour’s conclusion that there was a duty to exercise the power under s 501A(2) within a reasonable time. It also took issue with the consequences which would flow even if the power had not been exercised within a reasonable time. The proposed amended notice of contention was in the following terms:

The Respondent contends that the judgment of the Federal Court in respect to ground 1 should be affirmed on grounds other than those relied on by the Court.

Grounds relied on

1.    The judgment of the Court below in respect to ground 1 should be affirmed on the additional basis that, if the respondent did not exercise power under s 501A(2) of the Migration Act 1958 (Cth) within a reasonable time, then:

(a)    the appropriate relief is not a declaration that the respondent no longer has power under that provision, because the power does not expire upon the lapse of a reasonable time; and

(b)    further or alternatively, relief should be refused in the Court’s discretion because it would be futile to grant relief based on this alleged error where the respondent had decided to exercise power under s 501A(2) by the time the appellant sought this relief.

2.    The judgment of the Court below in respect to ground 1 should be affirmed on the additional basis that there is no duty to exercise power under s 501A(2) of the Migration Act 1958 (Cth) within a reasonable time.

35    The appellant opposed leave being granted to rely upon the amended notice of contention.

36    It is not necessary to consider the matters raised by the proposed notice of contention or each of the propositions which the appellant submitted emerge from the cases as set out at paragraph [30] above. That is because it was not established that there was a failure to exercise the power under s 501A(2) within a reasonable time, assuming there to be such a duty.

37    The relevant facts are as follows. The Second Tribunal made its decision on 9 January 2017. On 23 January 2017, the Minister was notified of the decision.

38    On 14 February 2017, the Minister indicated his desire to consider exercising the power under s 501A(2). The appellant was given notice of the Minister’s intention to consider refusal of the visa application under s 501A(2) by letter dated 9 March 2017 and invited to comment. The appellant’s representatives provided submissions on 6 April 2017.

39    By letter dated 12 April 2017, the Minister referred to further information which had been received and invited further comment. The appellant’s representative responded, providing further information on 13 April 2017.

40    In relation to these events, the primary judge concluded at J[65]:

… I do not consider that any delay occurred in the period up until 13 April 2017. During this period the Minister gave notice to the applicant that he was considering exercising the power under s 501A(2) and invited her to make submissions. The applicant, through her representative, made submissions in response to this invitation. Thus the period up to 13 April 2017 was required in order to afford the applicant procedural fairness.

41    We agree. There was no relevant delay until 13 April 2017.

42    On 19 April 2017, the Department’s “character refusal submission” was forwarded to the Minister for decision.

43    On 3 May 2017, DMH16 was decided.

44    On 5 May 2017, the Department wrote to the appellant’s representative stating:

[The appellant’s] case (along with a small cohort of Protection visa cases) has been delayed due to a request from the MO [Minister’s office] for changes in our templates regarding the way we address issues of indefinite detention and removal for persons with character issues.

45    On 26 May 2017, the appellant’s representative wrote to the Department stating:

We now attach the judgment of DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 for consideration in this case. We submit that this judgment is relevant to the consideration of visa refusal in this case, and that the Minister must understand the legal consequences of the decision. Similar to DMH16, the applicant here is owed non refoulement obligations.

46    The Department responded the same day indicating it was aware of the judgment in DMH16 and stating that “the issues in this case as they relate [to the appellant] will be brought to the Minister’s attention”.

47    On 30 May 2017, an internal Department email stated that the author’s “experience of previous cases impacted by these types of court outcomes [was] that there will be a further delays whilst the legal teams determine the most appropriate course of action going forward”.

48    On 10 July 2017, the Department recalled the “white submission folder” with respect to the appellant from “Ministerial Support”. The recall email stated that the appellant’s agent had submitted “further information in light of changes to case law and the submission requires updating”.

49    On 14 July 2017, the appellant’s matter was sent to the Minister.

50    An email exchange with the Department on 4 August 2017, relating to “DMH16 affected cases”, indicated that there was “some reluctance to finalise these cases until a more permanent fix for s 197C issues” could be found and that this “could be a long time off”. The email exchange indicated that the Minister had not signed the submissions or the statement of reasons and that the appellant’s “white folder” was being returned to the Department. It is evident from the email exchange that an issue which was being attended to, or causing delay, was the “DMH16 wording”. The email included:

I have just had a phone call from Trina in Ministerial who has the white folders from [the appellant] and [REDACTED]. Apparently the Minister has not signed the submissions/statement of reasons and is returning these cases to the department.

I have told her to return the white folders to me and re-direct in PDMS to me – until we are able to identify (and rectify) any issues.

[REDACTED] from the SIT recently included the DMH16 wording cleared by [redacted] for these two cases and re-submitted them.

51    On 7 August 2017, the Department wrote to the appellant’s representative stating:

I just wanted to let you know that the Minister’s office has returned [the appellant’s] case to the NCCC without making a decision.

The issue requires legal and policy input before her case can be resubmitted to the Minister.

I anticipate there will be a further delays [sic] before [the appellant’s] case can be put to the Minister for a decision.

52    On 5 November 2017, the appellant attempted suicide.

53    The submission for decision to the Minister (attachment 4 of which comprised a draft of the Minister’s statement of reasons) bore the date 5 December 2017.

54    The Minister’s decision was made on 9 January 2018 and the statement of reasons was signed on that day.

55    In respect of these events, the primary judge concluded at J[66] and [67]:

… [I]n relation to the period between 13 April 2017 and 9 January 2018, while this period is lengthy, it is explained in part by the need to consider the implications of the decision of this Court in DMH16, which was handed down on 3 May 2017. The documents obtained by the applicant pursuant to the Freedom of Information Act and annexed to the Westhuizen affidavit indicate that the Department gave consideration to the implications of the decision in DMH16. On 5 May 2017, an officer of the Department indicated that the case had been delayed due to a request from the Minister’s Office for changes in templates regarding the way the Department addressed issues of indefinite detention and removal of persons with character issues (Westhuizen affidavit, p 43). On 30 May 2017, an officer of the Department noted that the applicant’s case was impacted by the decision in DMH16 and that the officer’s experience of previous cases impacted by this type of court outcome was there would be “further delays whilst the legal teams determine the most appropriate course of action going forward” (Westhuizen affidavit, p 42). See also Westhuizen affidavit, pp 50, 54.

… [I]n relation to the period between 13 April 2017 and 9 January 2018, it appears that on two occasions a departmental submission in relation to the applicant’s case was returned by the Minister (Westhuizen affidavit, pp 51, 57). This is consistent with careful consideration being given to the issues raised by the case and explains, at least in part, the delay in making the Decision.

56    The primary judge also considered it relevant to have regard to the demands associated with the Minister’s office and the substantial amount of material he was required to consider in respect of the appellant’s matter (approximately 360 pages): at J[68]. His Honour stated at J[68]:

… It is not to the point that that material had previously been considered by a delegate of the Minister and by the Tribunal. The Minister was exercising his discretion personally and therefore was required to bring an independent mind to consideration of whether to exercise his discretion pursuant to s 501A(2). Further, the Minister had to consider whether it was in the national interest to exercise his discretion (s 501A(2)(e)); that criterion did not apply to the Tribunal.

57    We agree that those matters were relevant to the question of whether the delay was reasonable. The weight to give such matters depends on the particular circumstances.

58    The appellant contended that the primary judge “inverted the onus” by finding at J[63] that the period of time was lengthy but he was “not satisfied that it was an unreasonable period of time”. The appellant contended it was for the Minister to show that the time was reasonable, not for the appellant to show that it was unreasonable. In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530, Bromberg J said at [28]:

In these proceedings the Minister accepted that he bore the practical onus of establishing by evidence that there was a reasonable explanation for the delay. The concession was properly made. As I will explain, the delays in question were caused by very lengthy periods of inactivity. The extent of inactivity in the processing of the applications calls for a meaningful explanation to be provided by the Minister as to why that inactivity occurred and why the delay thereby caused ought not be regarded as unreasonable.

59    The primary judge’s conclusion at J[63] was a statement of his conclusion on the question whether unreasonable delay was established rather than a statement of who bore the onus. As to onus, it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was. In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63. That is a principle which authorises a particular form of reasoning.

60    The appellant contended the primary judge erred in not drawing a Jones v Dunkel (1959) 101 CLR 298 inference on the basis that the Minister did not call any evidence from the people within the Department or the Minister’s office who might have been able to explain the reason why the events took as long as they did.

61    More specifically, it was contended that no person connected with drafting the “template” wording in light of DMH16 was called to give evidence and specific reference was made to [redacted], the context suggesting him to be a lawyer. It was said that the inference should have been drawn that his evidence on the topic was unhelpful for the Minister.

62    In the circumstances of this case, it was not erroneous not to employ the reasoning authorised by the principle in Jones v Dunkel. The material before the primary judge sufficiently explained the events. In the circumstances, it is not necessary to consider if, or how, that reasoning is to be employed where the person who is not called to give evidence was the lawyer for the party and the evidence might have waived privilege, a point which was not raised by the parties in any event – see: Heydon JD, Cross on Evidence (LexisNexis Butterworths, Online at 15.11.2018) at [1215].

63    In BMF16, Bromberg J said at [25] and [29]:

Whilst a legislative scheme may not specify a time limit, it may nevertheless throw light on what was intended as a reasonable time for the performance of the statutory duty in question. The subject matter of the power, its statutory purpose, the importance of its exercise both to the public and to the interests of the persons it is directed to address, the nature of those interests and the likely prejudicial impact upon interest-holders of any delay, as well as the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for, are all likely to be relevant to what, in the context of the particular legislative scheme, was intended as a reasonable time for the performance of the duty.

…

The time taken to actively consider and assess an application for citizenship is unlikely to provide a foundation for a claim of unreasonable delay. But inactivity, long periods where an application simply sits around waiting to be processed or waiting for some particular step in the process to be taken, provide a more compelling basis for establishing unreasonable delay. Thus, for instance, the unexplained failure of the decision-maker to take steps to request or obtain further information was a weighty consideration in Wei (see at 476). The failure to provide an applicant with a timely interview was an important consideration in Oliveira (at [19]). In that case, the Privy Council considered that making allowance for “the customary way of doing things in Antigua”, in general and absent special considerations, the “outside limit of reasonable time” for the processing of a citizenship application was 12 months (at [42]). The Privy Council also recognised that special factors personal to the applicant can be taken into account in determining a reasonable time limit (at [45]). The hardship or personal consequences of a delay upon an applicant was also taken into account in Wei (at 477) and in Dragan at [56]–[57] (cf Thornton at 493).

64    As noted earlier, it is not necessary to decide whether it is implied into the statutory discretion or power under s 501A(2) that it must be exercised within a reasonable time.

65    However, in considering whether there was unreasonable delay in the present case, if there were such a requirement, we have had regard to the nature of the power and the impact of it on the appellant, particularly from the time the Second Tribunal made its decision (on 9 January 2017) until the time the power was exercised (on 9 January 2018).

66    The power is one vested personally in the Minister and can be exercised in limited circumstances. In particular, if the Minister “reasonably suspects” a person does not pass the character test and the person “does not satisfy” the Minister that he or she does, then the Minister may refuse (or cancel) the visa only if he is satisfied that it is in the national interest. The power requires natural justice to be afforded and this requires time sufficient to afford it (on the facts here, until 13 April 2017). The power is one directly connected to considerations of national interest. This might involve complex questions not susceptible of speedy resolution or considerations which affect a series of particular cases. Decisions under s 501A(2) affect individuals, but the power to make such decisions – involving as it does broad questions of national interest – is quite different to the power to make decisions concerned with purely private or commercial matters. It is a power which should be exercised after careful consideration given its potential impact on both national interest and the relevant individual.

67    It was not established that there were lengthy periods of unexplained inactivity which demanded any further explanation than was able to be inferred from the course of events. It was regrettable that the decision took as long as it did, especially in light of the appellant’s psychological state, but explicable in light of the events described above, including the perceived need to consider what position to adopt in respect of matters seen to be affected by the decision in DMH16.

68    The primary judge did not err in concluding that there was not unreasonable delay.

CONCLUSION

69    The following orders should be made:

(1)    The appeal be dismissed.

(2)    The cross-appeal be allowed.

(3)    The decision of the primary judge be set aside and in lieu thereof:

(a)    the application is dismissed; and

(b)    the applicant pay the respondent’s costs.

(4)    Unless either party applies within 7 days for a different order with respect to costs, the appellant pay the respondent’s costs of the appeal and cross-appeal.

(5)    The parties file a joint submission indicating any redactions that should be made to the Court’s reasons for judgment (or competing submissions if agreement is not reached) on or before 12 noon on Tuesday, 26 February 2019. The Court will then consider publishing a redacted form of its reasons.

Associate:

Dated:    22 February 2019

REASONS FOR JUDGMENT

WHITE J:

70    This appeal arises from a decision of the Minister for Immigration and Border Protection under s 501A of the Migration Act 1958 (Cth) (the Act) to refuse to grant the appellant a Protection visa.

Factual setting

71    The appellant is a [redacted] year old national of the [redacted]. She entered Australia in [redacted] Visa (having visited here on several occasions previously).

72    On [redacted], the appellant was sentenced in the County Court of Victoria for multiple [redacted] related offences. A sentence of imprisonment of four years and three months with a non-parole period of two years and three months was imposed. The sentencing Judge indicated that, had it not been for the appellant’s undertaking to assist authorities in the prosecution of other offenders, the sentence would have been for imprisonment for eight years and six months with a non-parole period of six years and six months. By reason of time spent in custody before sentence, the appellant became eligible for parole on [redacted], and she was released from prison on that day.

73    The appellant’s visa had been cancelled on [redacted]. Accordingly, on her release from prison, the appellant was immediately taken into immigration detention, where she has been held ever since.

74    On [redacted], the appellant applied for a Protection visa. That application was refused by a delegate of the Minister. However, on [redacted], the Administrative Appeals Tribunal (the First Tribunal) remitted the application for reconsideration. It was not satisfied that the appellant is a person to whom Australia owed protection obligations under s 36(2)(a) of the Act but was satisfied that Australia had protection obligations to her under s 36(2)(aa). It considered that the appellant’s cooperation with the police and prosecuting authorities meant that, if she were returned to [redacted], there was a real risk that she would be “arbitrarily deprived of her life” by people belonging to the [redacted] in retribution for her having given evidence against them. The Tribunal noted that this risk had been recognised in Australia because the appellant had been offered protection through a Witness Protection Program. The formal order of the First Tribunal was:

The Tribunal remits the matter for reconsideration and directs that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

75    The appellant was unsuccessful on the reconsideration. The delegate of the Minister refused the application pursuant to s 501(1) of the Act on the basis of the appellant’s character. On review, the Administrative Appeals Tribunal, constituted by a different member, (the Second Tribunal) set aside the delegate’s decision and substituted a decision that “the discretion in s 501(1) of [the Act] to refuse the applicant’s visa on character grounds should not be exercised”.

76    Then, on 9 March 2017, the Department of Immigration and Border Protection (the Department) gave the appellant notice that the Minister intended to consider, under s 501A(2) of the Act, whether to set aside the decision of the Second Tribunal and to refuse the visa application. By her representative, the appellant made submissions to the Minister on 6 and 13 April 2017 and later, on 26 May 2017, provided the Department with a copy of the judgment in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576. In DMH16, North ACJ held that the Minister’s understanding, when refusing to grant a protection visa on character grounds, that the applicant would then be detained in Australia indefinitely was mistaken because ss 197C and 198 required the immediate removal of the applicant from Australia when the Minister was considering alternative management options under s 195A.

77    It has been held, however, that ss 197C and 198 do not preclude the continued detention of a person while the Minister considers the exercise of the powers vested by ss 48B, 195A or 417 of the Act: SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; (2015) 234 FCR 1 at [48]-[52].

78    The Minister made his decision on 9 January 2018. That decision was to exercise the discretion under s 501A(2) of the Act to refuse the grant of a protection visa to the appellant.

The proceedings before the primary Judge

79    The appellant sought judicial review of the Minister’s decision in this Court pursuant to s 476A of the Act. Her Amended Originating Application contained four grounds, of which it is necessary to mention only the first two:

1.    The Minister’s decision was made without jurisdiction because his purported exercise of the power under s 501A(2) was not done within a reasonable time;

2.    The Minister failed to consider the correct operation of s 197C;

…

80    The substantive relief sought by the appellant in her Amended Originating Application was:

1.    An order that the decision of the Minister be quashed.

2.    An order of mandamus directing the Minister to determine Applicant’s visa application forthwith.

81    The primary Judge considered that ground 1 was not made out but upheld ground 2: AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 at [70], [92]. The amended orders made by the Judge to give effect to his reasons are as follows:

1.    The application be allowed to the extent that relief in paragraphs 1, 3 and 4 of the Amended Originating Application is sought, but otherwise be dismissed.

2.    The decision of the [Minister] dated 9 January 2018 be set aside.

3.    The matter be remitted to [the Minister] for reconsideration according to law.

…

82    As is apparent, the Judge did not grant relief in the form of an order for mandamus, but did set aside the Minister’s decision and remitted it to him for reconsideration according to law.

83    The reasons of the Judge for upholding ground 2 will be outlined in the consideration of the Minister’s cross-appeal.

The appeal to this Court

84    Despite her success at first instance, the appellant appeals to this Court. She does so on a single ground:

The learned trial judge erred by failing to find that the Minister’s decision was made without jurisdiction because his purported exercise of the power under s 501A(2) of the [Act] was not done within a reasonable time.

(Emphasis added)

85    The substantive relief sought by the appellant in the Notice of Appeal is:

1.    An order of mandamus directing the Respondent to determine the Appellant’s visa application forthwith, pursuant to s 65 of the Act.

2.    A declaration that the Respondent no longer has power to make a decision pursuant to s 501A of the Act in respect of the Appellant because the time within which such a decision needed to be lawfully made has expired.

86    The gravamen of the appeal is thereby made apparent. The appellant’s contention is that the Judge should also have found that, by reason of the lapse of time before the Minister made his decision, his jurisdiction to do so under s 501A(2) had lapsed. That should have the consequence, so the appellant contends, that her application for a Protection visa should be determined under s 65 of the Act and that it is no longer possible for the Minister to exercise his powers under s 501A of the Act. The appellant does not seek on the appeal an order quashing the Minister’s decision, because that has already been set aside by the primary Judge.

87    By Notice of Cross-Appeal, the Minister contends that the primary Judge erred in his determination of ground 2 of the appellant’s application.

88    In addition, by an Amended Notice of Contention, the Minister raises two matters:

1.    The judgment of the Court below in respect to ground 1 should be affirmed on the additional basis that, if the respondent did not exercise power under s 501A(2) of the Migration Act 1958 (Cth) within a reasonable time, then:

(a)    the appropriate relief is not a declaration that the respondent no longer has power under that provision, because the power does not expire upon the lapse of a reasonable time; and

(b)    further or alternatively, relief should be refused in the Court’s discretion because it would be futile to grant relief based on this alleged error where the respondent had decided to exercise power under s 501A(2) by the time the appellant sought this relief.

2.    The judgment of the Court below in respect of ground 1 should be affirmed on the additional basis that there is no duty to exercise power under s 501A(2) of the Migration Act 1958 (Cth) within a reasonable time.

89    Counsel for the Minister acknowledged that he needed leave to advance the contention in [2]. That is because the Minister had accepted before the Judge that the power in s 501A(2) did have to be exercised within a reasonable time. The Judge proceeded on that basis, referring to the principle that, when no time limit is prescribed for the doing of a particular act, a court may imply a requirement that the act be done within a reasonable time: Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 at 573-4.

90    The circumstances in which appellate courts permit a party to argue on appeal a matter not agitated in the court below are limited: Coulton v Holcombe [1986] HCA 33, (1986) 162 CLR 1; Water Board v Moustakas [1988] HCA 12, (1988) 180 CLR 491. However, when the new issue is a question of law in relation to which the opposing party could not have led any further evidence, and its correctness is fundamental to the basis of the decision at first instance, a grant of leave may be appropriate. Those circumstances exist presently. I consider that leave should be granted in the present case, especially given that the question of power is intrinsically bound up with the appellant’s submissions concerning lack of jurisdiction.

The Appeal: Did the Minister lack the power to make the s 501A(2) decision?

91    The single ground of appeal, and the relief which the appellant seeks in respect of it, would require consideration of three subsidiary issues:

(1)    is the Minister’s power pursuant to s 501A(2) exercisable only within a reasonable time? (the Power Question);

(2)    does a failure by the Minister to exercise the power within a reasonable time have the consequence that the power may no longer be exercised? (the Consequence Question); and

(3)    did the Minister, in the circumstances of the appellant’s application, fail to exercise the power within a reasonable time? (the Factual Question).

92    However, in the view I take of the matter, it is not necessary to consider the Power Question and the Consequence Question which are the subject of the Minister’s Notice of Contention. That is because I consider that the Factual Question should be resolved adversely to the appellant. I respectfully agree with the reasons of Besanko and Thawley JJ on this issue. Accordingly, the appeal cannot succeed.

The Cross-Appeal

93    The Minister contends that the primary Judge erred in concluding that he had misunderstood, and had thereby failed to take into account, the legal consequences of the decision to refuse the grant of a Protection visa to the appellant.

The Minister’s decision

94    The appellant had submitted to the Minister that her cooperation with the Victorian Police meant that she was at risk of serious harm, and even death, at the hands of the [redacted] members if she was returned to [redacted], and that the authorities in [redacted] would be unable to protect her from that harm. The Second Tribunal had accepted that the appellant was subject to this risk and, accordingly, that Australia had non-refoulement obligations to her.

95    The Minister’s decision proceeded on the basis of the Second Tribunal’s finding that Australia does have non-refoulement obligations to the appellant.

96    The Minister addressed the consequences of a decision to refuse the appellant a Protection visa in the circumstances of the non-refoulement obligations in the following passages of the reasons provided for his consideration by the Department, which he signed and dated 9 January 2018:

[85]    I understand that if I decide to refuse [the appellant’s] application for a Protection visa, she will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa, and that in respect of the a Protection visa, she will be prevented by s48A of the Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s48B that s48A does not apply to her).

[86]    I am aware that the statutory consequence of a decision to refuse [the appellant’s] application for a Protection visa is that, as an unlawful non-citizen, [the appellant] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

[87]    I am also mindful that at the time of the insertion of s197C in the Act, the Government indicated that Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198. These mechanisms included the use of the Minister’s personal non-compellable powers in the Act, including the power in s195A under which I may grant a visa to a person who is in immigration detention if I think it is in the public interest to do so. I am aware that the potential for using s195A in order to meet Australia’s international non-refoulement obligations is pertinent to [the appellant’s] case and this potential is encompassed in my consideration of alternative management options in relation to her.

[88]    I have had regard to the existence of non-refoulement obligations in this case and I have carefully weighed this factor against my finding that it is in the national interest to refuse her application for a protection visa having regard to the seriousness of her criminal history and past involvement in organised criminal activity.

97    Later, the Minister referred to the serious nature of the appellant’s crimes, her leadership role in those crimes, Australia’s low tolerance of criminal conduct, and the risk of great harm to the community should the appellant reoffend. He concluded:

[101]    I found that the above consideration outweighed the countervailing considerations in [the appellant’s] case, including non-refoulement obligations, [the appellant’s] mental health, the best interests of [the appellant’s grand-daughter] which I took into account as a primary consideration, and the impact on family members, particularly her son and daughter-in-law residing in Australia.

98    On the Decision Page (also signed and dated 9 January 2018), the Minister deleted each of the three alternative decisions under the heading “Non-refusal outcomes”. He circled the entry under the heading “Refusal outcome” which provided:

(d)    I reasonably suspect that [the appellant] does not pass the character test and [the appellant] has not satisfied me that she passes the character test and I am satisfied that it is in the national interest to refuse [the appellant’s] visa application. I have decided to exercise my discretion under s501A(2) of the Migration Act to refuse [the appellant’s] application for a Protection (Class XA) visa. I hereby refuse [the appellant’s] application for a Protection (Class XA) visa. My reasons for this decision are set out in the attached Statement of Reasons.

99    It is also pertinent to refer to the page containing the Departmental recommendations to the Minister. The first three recommendations were that the Minister note that he had requested the Department to prepare a full submission for consideration of visa refusal under s 501A(2), that he note the responses made by or on behalf of the appellant, and that he indicate his decision and sign the Decision Page.

100    The fourth to sixth recommendations were as follows:

101    It is evident that “the AAT decision record of 11 January 2016” to which Recommendation 6 refers is [72] of the reasons of the First Tribunal:

[72]    The Tribunal notes that the material before it may give rise to issues relating to s.36(2C) of the Act. The Migration and Refugee Division of this Tribunal has no power to consider s.36(2C) issues. Accordingly, the matter will be remitted to the Department for reconsideration, including consideration as to whether the applicant is ineligible for the grant of a protection visa by s.36(2C).

102    With respect to Recommendation 4, the Minister circled the word “signed”. With respect to Recommendation 5, the Minister circled “no submission required” and deleted the other alternatives. With respect to Recommendation 6, the Minister circled “Refer”. It was common ground that the Minister’s circling of an alternative indicated his selection of that particular alternative. The Minister’s circling of the option “Refer” in Recommendation 6 has a significance to which I will return later.

103    The Minister signed and dated the Recommendations Page on 9 January 2018.

104    Although the Judge made no finding on the topic, it is reasonable to infer that the Minister signed and dated the reasons, the Decision Page and the Recommendations Page at the one time, but the evidence did not indicate the order in which he had done so.

The reasons of the primary Judge

105    The Judge held that [86] and [87], read together, indicated a misunderstanding by the Minister as to the operation of ss 197C and 198 of the Act. Section 198(1) provides that “[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen” in specified circumstances.

106    Section 197C provides:

197C     Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

107    The Judge noted, at [81], that counsel for the Minister had accepted that the effect of s 197C is that international non-refoulement obligations are no longer relevant to the obligation to remove a person under s 198, with the consequence that, subject to the Minister’s consideration of alternative management options such as s 195A, the person must be removed as soon as reasonably practicable notwithstanding that Australia may have non-refoulement obligations in respect of the person.

108    The Judge considered that the first sentence in [87] of the Minister’s reasons did not reflect this understanding of the effect of ss 197C and 198. His Honour considered that the first sentence expressed instead an understanding that non-citizens would not be refouled under s 198 in breach of Australia’s non-refoulement obligations. In particular, the Judge regarded the Minister’s reference to the Government’s statement at the time of the insertion of s 197C that “Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through removal powers in s 198” as reflecting a continuing understanding that non-refoulement obligations owed to persons such as the appellant would be met by other means. His Honour said:

[82]    … I do not consider this to be merely a statement about the historical position as at the time of introduction of s 197C. There is no suggestion in the Statement of Reasons that the position had subsequently changed, and there was no reason to refer to this if it did not have ongoing relevance. Further, I do not consider this statement to refer only to the possibility that Australia could still meet its international non-refoulement obligations. The sentence is expressed in definite terms – Australia “will” continue to meet its international non-refoulement obligations. In other words, the sentence expresses an understanding that non-citizens would not be refouled under s 198 in breach of Australia’s international non-refoulement obligations. …

(Emphasis in the original)

109    The Judge concluded that the Minister’s understanding that ss 197C and 198 had this effect in the appellant’s circumstances was mistaken because, subject to his consideration of alternative management options such as s 195A, a person in the position of the appellant would be removed as soon as practicable, irrespective of whether Australia had international non-refoulement obligations in respect of the person.

The submissions of the Minister

110    Counsel for the Minister submitted that, apart from the content of [86]-[87] of the reasons, a number of matters indicated that, contrary to the conclusion of the Judge, the Minister had made his decision on the basis of a correct understanding of the legal consequences of his decision and, in particular, that the Minister had understood that the effect of his decision would be subject to immediate removal from Australia. These were:

(1)    the summary of relevant aspects of the statutory scheme contained in [86] of the reasons was accurate;

(2)    the Minister had included the non-refoulement obligations as a countervailing factor against the national interest in refusing a Protection visa. The submission was that there had been no need to do so had the Minister understood that the appellant would not be refouled in any event;

(3)    the Minister’s reasons are different from the template reasons which were the subject of the decision in DMH16. The evidence showed that much of the time which elapsed after the delivery of judgment in DMH16 on 3 May 2017 until the Minister made his decision was attributable to the Department’s consideration of the implications of that decision. In that circumstance, one would not readily infer that the Minister had made the same error as identified in DMH16, namely, misunderstanding the effect of a refusal of a Protection visa; and

(4)    the fact that the Minister’s reasons do not include consideration of indefinite detention is an indication that he must have understood that s 197C required refoulement.

Consideration of the cross-appeal

111    The first of the matters submitted by counsel should be accepted. Paragraph [86] of the Minister’s reasons does summarise accurately relevant aspects of the statutory scheme. The appellant’s argument that the Minister’s use of the words “become liable to” indicated an understanding by the Minister only that she would be “at risk” of removal is not persuasive. In context, the term “liable to” in [86] means “subject to”, in the sense of a legal obligation. I agree that this points against the Minister having had the misunderstanding attributed to him by the primary Judge.

112    As to the second matter, the inclusion of non-refoulement obligations as a countervailing factor is consistent with the Minister having a correct understanding. However, it is not decisive as it may indicate only that this was one matter, perhaps an important matter, which the Minister regarded as bearing on the decision.

113    As to the third matter, I agree that it is natural to expect that the Minister had sought to avoid repeating the same error as identified in DMH16. The question remains, however, as to whether the Minister achieved that objective.

114    The fourth matter to which counsel referred is consistent with the Minister having had a correct understanding but is, in some respects, a “boot straps” submission.

115    In my view, the more critical matter is the understanding of what the Minister said in [86]-[87] of his reasons. The primary Judge’s finding that the Minister had misunderstood the consequences of a refusal of a Protection visa turned principally on the first sentence in [87]. His Honour regarded that sentence as indicating an understanding of the Minister that a non-citizen would not be refouled under s 198 in breach of Australia’s international non-refoulement obligations, when, in law, that would be the effect of s 198 following his refusal of a Protection visa.

116    To my mind, it is significant that the first and second sentences in [87] are expressed in the past tense, whereas the third is expressed in the present tense. That being so, and contrary to the view of the primary Judge, I consider it more natural to understand the first and second sentences in [87] as a reference to what had been said by the Government in the past. That is indicated by the reference to what the Government has said “at the time” of the insertion of s 197C into the Act and by the statement that the other mechanisms which the Government had “indicated” would be used “included” the use of the Minister’s non-compellable powers.

117    In effect, the Minister appears in these sentences to be acknowledging that a relevant matter for his consideration is the previous commitment by the Government and to be alluding to other means, in particular by the use of s 195A, by which it may be honoured. The commitment was contained in the Explanatory Memorandum provided by the Minister in relation to the amendment of the Migration Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) by which s 197C was introduced into the Migration Act. The Explanatory Memorandum stated:

[1142]    Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.

…

[1144]    The Minister’s personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so. … In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia’s non-refoulement obligations.

(Emphasis in the original)

118    The Department had drawn the Minister’s attention to this commitment in the submission it provided to him concerning the appellant.

119    In this context, the Minister’s reasons are to be understood as indicating his appreciation that the effect of his refusal to grant a Protection visa would be that the appellant would become subject to removal from Australia despite the non-refoulement obligations and even though the Government had previously stated that Australia would comply with its non-refoulement obligations either by the grant of a Protection visa or by the exercise of the Minister’s non-compellable powers. When read with the Minister’s conclusion in [101], I consider that the Minister should be understood as concluding that, despite Australia’s international non-refoulement obligations and despite the Government’s previous commitment, a Protection visa should not be granted to the appellant.

120    There is another indication that the Minister did understand that, unless his decision is set aside or revoked, his refusal of the protection visa was final. This is seen in the Minister’s reference to s 501E and to ss 48A and 48B, in [85] of his reasons. The effect of those provisions is to preclude the appellant making a further application for a Protection visa, unless the Minister determined, pursuant to s 48B of the Act, that s 48A did not apply to her. I consider that the Minister’s reference to those provisions supports the view that he did understand the effect of his refusal of the Protection visa.

121    It follows that I do not agree, with respect, with the understanding of the Minister’s reasons adopted by the primary Judge.

122    It is apparent that the Minister may not yet have concluded his consideration of alternatives for the appellant. This is indicated by the Minister’s circling of the word “Refer” against Recommendation 6. As seen earlier, this recommendation commenced with the word “alternatively”. It was for the referral of the appellant’s application for a Protection visa “to Onshore Protection for consideration of a s 36(2C) assessment as per the AAT decision record of 11 January 2016” and the Minister was given the alternatives of “Refer”, “Not Refer” and “please discuss”. It is not clear whether Recommendation 6 is to be understood as an alternative to refusal of the grant of a Protection visa, or alternative to the four internal options within Recommendation 5.

123    Section 36(2C) is an adjunct to s 36(2)(aa) which provides:

A criterion for a protection visa is that the applicant for the visa is:

(a)    …

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

124    Section 36(2C) provides:

Ineligibility for grant of a protection visa

(2C)    A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(a)    the Minister has serious reasons for considering that:

(i)    the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(ii)    the non-citizen committed a serious non-political crime before entering Australia; or

(iii)    the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

(b)    the Minister considers, on reasonable grounds, that:

   (i)    the non-citizen is a danger to Australia’s security; or

(ii)    the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

125    As is apparent, subs (2C) provides for circumstances in which a non-citizen will be taken not to satisfy the criterion for a Protection visa specified in subs (2)(aa). Section 36(2C) has no other operation. Accordingly, unless it be a mistake, the Minister’s acceptance of the recommendation that the appellant’s application be referred for a s 36(2C) assessment appears to indicate an intention on his part that his decision to refuse a Protection visa under s 501(2) should not conclude the possible grant of a Protection visa to the appellant. Presumably, the Minister had in mind the possible exercise of his power under s 48B to lift the bar on the appellant making a further application for a Protection visa.

126    The final sentence in [87] of the Minister’s reasons adds to the impression that the Minister may not have intended his decision to conclude the issue of a grant of a visa to the appellant. The Minister referred there to the potential for use of s 195A as being encompassed “in my consideration of alternative management options” in relation to the appellant. The Minister’s reasons do not themselves include any consideration of alternative management options. It can be inferred that the Minister intended that this would occur independently of his refusal of the Protection visa.

127    There is some uncertainty about an inference that the Minister contemplated a subsequent assessment of alternative management options. It is seemingly inconsistent with his circling of the words “no submission required”, and the deletion of the other options, in relation to Recommendation 5. That is especially so when that recommendation is read in conjunction with [13] of the Departmental submission to the Minister:

[13]    If you decide to refuse [the appellant’s] visa, as she is a person in respect of whom Australia has protection obligations, this means to remove her to her country of nationality would be in breach of Australia’s international non-refoulement obligations, and there is no known prospect of removal to another country. You may wish to consider alternative management options; in this case it would be open to you to consider intervening under s 195A of the Act to grant a temporary visa. A further submission in relation to alternative management options will be referred for your consideration upon request.

128    In this circumstance, it is not altogether easy to reconcile the Minister’s reference in [87] to his consideration of alternative management options with his indication that he did not even wish to receive a submission from the Department on the topic. Nevertheless, the last sentence of [87] suggests strongly that the Minister would be considering alternative management options.

129    Another consideration is that the Minister’s reasons and the associated documents do not include any express statement that, despite Australia’s international non-refoulement obligations and despite the apparent commitment given to the Parliament in 2014, the appellant should be refouled to [redacted] (this being the only available course in the absence of an alternative management option). A conclusion to that effect, while open to the Minister, is obviously a serious one having regard to Australia’s international reputation, the commitment the Minister had given to the Parliament on behalf of the Government, and the impact on the appellant. Had the Minister intended that that be the result, it is natural to expect that he would have said so in express terms. The fact that he has not done so, taken in conjunction with the two matters just mentioned, adds to the impression that the Minister has not concluded his consideration of the appellant’s circumstances.

130    These matters also mean that the appellant’s submission that the Minister’s circling of the word “Refer” in Recommendation 6 is indicative of an incorrect or incomplete understanding of the operation of the Act should not be accepted.

131    For these reasons, I conclude that the cross-appeal should be allowed.

132    I agree with the orders proposed by Besanko and Thawley JJ.

Associate:

Dated:    22 February 2019