FEDERAL COURT OF AUSTRALIA

DOB18 v Minister for Home Affairs [2019] FCAFC 63

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

RARES J:

1    I have had the benefit of reading the reasons of Logan J and Robertson J but have come to a different conclusion. Robertson J has set out the material facts and the parties’ submissions. I need only set out the legislative context before explaining why I have concluded that the Minister fell into jurisdictional error by failing to have regard to a relevant consideration.

The legislative context

2    The Migration Act 1958 (Cth) provided, in s 4, as follows:

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.

[…]

(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. (emphasis added)

3    The Act also contained the following relevant definitions:

5(1) non-refoulement obligations includes, but is not limited to:

(a) non refoulement obligations that may arise because Australia is a party to:

(i) the Refugees Convention; or

(ii) the Covenant; or

(iii) the Convention Against Torture; and

(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

5M Particularly serious crime

For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

(a) a serious Australian offence; (emphasis in original)

4    And s 5(1) defined “serious Australian offence”, relevantly for the appellant’s circumstances, as one that was a “serious drug offence” (an expression that was not defined) being punishable by imprisonment for a maximum term of not less than three years. In this context, the Tribunal found that the appellant’s sentence of 2 years and 8 months, while not insignificant, was “not an especially lengthy sentence given the maximum sentence of 15 years under the Drugs Misuse and Trafficking Act 1985 (NSW)”. Accordingly, the appellant’s offence for which he was sentenced was punishable by imprisonment for a maximum term exceeding three years and this was a “serious Australian offence” within the meaning of ss 5(1) and 5M. It was, also, a “serious drug offence”.

5    An unlawful non-citizen is a non-citizen who is in the migration zone and does not hold a current visa (including one whose visa has been cancelled) (ss 13, 14 and 15). A visa is a permission that the Minister may grant to a non-citizen, relevantly, to remain in Australia (s 29(1)(b)).

6    Next, s 36 specified the criteria that an applicant for a protection visa in the position of the appellant had to satisfy, namely:

36  Protection visas—criteria provided for by this Act

(1A)  An applicant for a protection visa must satisfy:

(a)  both of the criteria in subsections (1B) and (1C); and

(b)  at least one of the criteria in subsection (2).

(1B)  A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)  A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)  is a danger to Australia’s security; or

(b)  having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note:          For paragraph (b), see section 5M.

(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 because the person is a refugee; or

(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 (emphasis added)

7    Section 65 provided that, subject to ss 84 and 86 (which are not presently relevant), if the Minister was satisfied, after considering a valid visa application, that the prescribed criteria, including any health criteria, for the visa had been satisfied and there was no operative statutory prohibition, he had to grant the visa and, conversely, if not so satisfied, he had to refuse to grant the visa.

8    The Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) inserted a reference to s 501BA into s 193(1)(a)(iv) so that s 193 now provided that ss 194 and 195 did not apply to a person detained in immigration detention under s 189(1) because of a decision that the Minister made personally to cancel a non-citizen’s visa under s 501BA in addition to the already existing references in s 193(1)(a)(iv) to cancellation of visas under ss 501, 501A and 501B (Sections 194 and 195 required an officer who detains a person under s 189 to ensure that the person is made aware of limited rights to apply for a visa and other related matters).

9    The 2017 amendment to s 193(1)(a)(iv), to include cancellations under s 501BA, had the effect of extending the reach of s 198(2A) to non-citizens whose visas had been cancelled under s 501BA. That section provided, relevantly:

(2A) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)     the non-citizen is covered by subparagraph 193(1)(a)(iv); and

(b)     since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non citizen has not made a valid application for a substantive visa that can be granted when the non citizen is in the migration zone; (italic emphasis in original; bold emphasis added)

10    Thus, s 198(2A) contemplates that, after the Minister personally cancels a visa under s 501BA, a staged decision-making process can occur if the non-citizen is able to, and does, make a valid application for a substantive visa that he or she can be granted.

11    The Explanatory Memorandum for the Bill that enacted the 2017 amendment inserting a reference to s 501BA into s 193(1)(a)(iv) explained (in par 26):

This amendment would mean that a non-citizen who has had a visa cancelled by the Minister personally under section 501BA will be unable to apply for a further visa while they remain in the migration zone, except for a protection visa, or a visa specified in the regulations for the purposes of this section (currently a Bridging R (Class WR) visa is specified). (emphasis added)

Consideration

12    It is important to understand how the power under s 501BA can be exercised. In Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350 at 363-364 [57], Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said that the concept of the national interest in s 501(3)(d) (which is an analogue of s 501BA(2)(b)) “although broad and evaluative, is not unbounded.” They said:

And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself” [R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158]”. (emphasis added)

13    The power conferred on the Minister personally in s 501BA is exceptional. That is because the time at which he can exercise that power arises only after two previous decision-makers have each exercised separate powers under the Act. Those anterior powers were, first, to cancel the visa in question under s 501(3A), because a delegate of the Minister was satisfied both that the visa holder did not pass the character test (relevantly, in a case like the appellant’s, because he or she had a substantial criminal record within the meaning of s 501(6)(a) and (7)) and that the cancellation was in the national interest, and, secondly, to revoke that cancellation under s 501CA(4), because another delegate or the Tribunal (see s 501BA(1)) was satisfied, after the non-citizen made representations in accordance with s 501CA, that the non-citizen passed the character test or there was another reason why the decision under s 501(3A) should have been revoked. Only in those circumstances can the Minister exercise his power to cancel the visa under s 501BA.

14    The object of the Act in s 4(1) included the regulation, in the national interest, of the presence in Australia of non-citizens. Moreover, s 4(2) provided that, in order to advance the object in s 4(1), the only source of the right of a non-citizen to enter or remain in Australia was a visa permitting him or her to do so.

15    The Tribunal found that on 16 November 2006 the appellant had been granted a temporary protection visa for which he had applied on the basis that he would be persecuted “because of his sexuality if he returned home”. That description can be inferred to refer to him having a well founded fear of persecution for reasons of his membership of a particular social group, namely gay men in Bangladesh (cf. Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473). The Tribunal found that, in November 2009, the appellant was granted the resolution of status visa (the subject of the present cancellation decision) “which was the functional equivalent of a permanent protection visa”.

16    When the Minister, personally, exercises his power under s 501BA, or its analogues in the Act, to cancel a visa because he is satisfied that the cancellation is in the national interest, he must do so to advance the object of the Act in s 4(1) in accordance with s 4(2) and (4). In such a case the Minister must be satisfied that effect can no longer be given to the purpose of the cancelled visa, which is to permit its holder to remain in Australia, because his or her presence is not in the national interest.

17    It was common ground that, although the appellant’s resolution of status visa may have been equivalent to a protection visa, its cancellation did not preclude him from making a valid application for a protection visa. When the primary judge referred to a staged decision-making process under the Act, he had in mind that the appellant had ability to apply for a protection visa following the Minister’s decision under s 501BA to cancel his resolution of status visa and that the new application could be considered and decided by the Minister of his delegate in due course: cf, s198(2A) and [7]-[9] above.

18    However, I am of opinion that the primary judge erred because the Minister was bound to consider the question of whether Australia had non-refoulement obligations in respect of the appellant as part of his decision-making under s 501BA.

19    That is because the question whether Australia may have “non-refoulement obligations”, as defined in s 5(1) of the Act, necessarily arose in the consideration of the national interest, at least in a case like the present, where the Minister has accepted in the past, and has before him at the time of his decision, that the particular non-citizen was owed non-refoulement obligations and had been granted a temporary protection visa.

20    Here, the visa the subject of the Minister’s consideration for cancellation under s 501BA was one that had been granted having regard to Australia’s non-refoulement obligations. The Tribunal, in exercising its discretion under s 501CA(4) to revoke the earlier cancellation under s 501(3A), found that the appellant had been granted a temporary protection visa in 2006 and that his resolution of status visa was “the functional equivalent of a permanent protection visa”. It follows that when the Minister exercised his power under s 501BA to cancel the appellant’s visa, he must have been satisfied that it was not in the national interest to allow the appellant to remain in Australia under that visa, knowing that it was the functional equivalent of a permanent protection visa.

21    The most up to date information about the appellant’s personal circumstances that the Minister said that he had considered was the information before the Tribunal when it made its decision on 24 November 2016 and in its reasons. In his reasons, referring to the Tribunal’s decision, the Minister said:

Since that time around 11 months have elapsed and the information before me may not reflect all of [the appellant’s] current personal circumstances. (emphasis added)

22    In fact, when the Minister made his decision on 15 February 2018, nearly 15 months had elapsed.

23    This raises the question of what factors the Minister was bound to take into consideration in making a decision under s 501BA(2). Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed) explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 that the construction of a statute that confers a discretionary power determines what those factors are. He held that where a statute does not expressly state or limit those factors, they must be determined by implication from the subject matter, scope and purpose of the Act. The subject matter, scope and purpose of s 501BA includes, first, the decision to cancel the earlier revocation of a visa the subject of the possible revocation under s 501CA (that s 501BA(1) defines as “the original decision”), and secondly, the requirement in s 501BA(2) that the Minister consider whether he is satisfied that:

(1)    the non-citizen does not pass the character test because of the operation of, relevantly here, s 501(6)(a) and (7)(c) (namely on the basis that he or she had a substantial criminal record having been sentence to a term of imprisonment of 12 months or more); and

(2)    the cancellation is in the national interest.

24    Importantly, s 501BA(2) is a power to “set aside the original decision and cancel a visa that has been granted”. Thirdly, s 501BA(3) excludes the application of the rules of natural justice in the making of a decision under s 501BA(2).

25    The obligation of a decision-maker to take into account all relevant considerations is not an aspect of the rules of natural justice. Rather, as Mason J explained, the obligation arises because the statutory source of the power being exercised requires the decision-maker to have regard to (and, so take into account) a consideration as an essential step in the procedure that must be followed in arriving at a decision. This includes an obligation to have regard to the most up to date information before him: Peko-Wallsend 162 CLR at 44-45; Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 46-47 [39]-[42] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 452-453 [73]-[77] per Kenny, Griffiths and Mortimer JJ; SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571-572 [27]-[32] per Rares J.

26    Here, the most up to date information before the Minister, when he exercised his power under s 501BA(2), was the Tribunal’s findings that the appellant was owed protection obligations that engaged Australia’s non-refoulement obligations. The appellant’s temporary protection visa, granted on 16 November 2006, and his resolution of status visa, granted in November 2009, recognised those obligations, as reflected in the Tribunal’s finding that the latter visa was “the functional equivalent of a permanent protection visa” – i.e. a visa giving effect to Australia’s non-refoulement obligations in respect of the appellant.

27    Instead of considering this information, the Minister ignored it and erroneously said, instead, that it was not necessary for him to determine whether non-refoulement obligations were owed in respect of the appellant.

28    The question in respect of whether Australia has international law obligations in respect of a non-citizen and, if it does, whether it will abide by them or decline to give them effect, quintessentially requires consideration of the national interest. The criterion of the national interest cannot be compartmentalised to exclude some questions of national interest, such as Australia’s international law obligations in respect of a visa holder in the position of the appellant, when the Minister exercises a personal power that requires him to be satisfied that cancellation of the person’s visa “is in the national interest”, as opposed to some part of that interest: Graham 347 ALR at 363-364 [57].

29    The consideration of whether a person’s visa ought be cancelled under s 501BA, because he or she fails the character test and the Minister is satisfied that it is in the national interest that it should be, is linked directly to the object of the Act in s 4(1). That is because the regulation, in the national interest, of the presence of a non-citizen in Australia is the object of the Act. The decision that the Minister must make in cancelling a visa of a non-citizen who has failed the relevant character test in s 501BA(2)(a) is whether he is satisfied that it is in the national interest that the person be present in Australia under the authority of the visa.

30    In a case where there is no information before the Minister that Australia actually owes, or may owe, non-refoulement obligations in respect of the non-citizen whose visa the Minister is considering cancelling under s 501BA, then that subject-matter will not be a relevant consideration. The existence of non-refoulement obligations in respect of such a non-citizen may be able to be considered if he or she subsequently applies for a protection visa, depending on the Minister’s reasons for cancelling the earlier visa under s 501BA.

31    But here, the information before the Minister necessarily raised the question why the appellant’s resolution of status visa should be cancelled in the national interest in circumstances, as found by the Tribunal, that it was effectively a protection visa or one that he was granted because Australia had recognised its non-refoulement obligations in respect of him.

32    The appellant’s position is distinct from that of the unsuccessful appellant in AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451. There, Allsop CJ, Robertson and Griffiths JJ noted that two Departmental international treaties obligations assessments that were before the Minister concluded that AZAFQ was a citizen of South Sudan and could be returned there (at 469-470 [59]). Their Honours also found that there was no evidence that AZAFQ had ever been granted a protection visa within the meaning of s 36 of the Act or had been found to be a refugee within the meaning of Art 1A of the Refugees Convention (at 472-473 [65]-[68]).

33    Here, the Minister revoked the Tribunal’s decision under s 501CA(4) nearly 15 months after it had made its decision. The Minister made a deliberate decision not to seek any new information beyond what the Tribunal had said about the appellant’s current circumstances and, in particular, Australia’s non-refoulement obligations in respect of him. In those circumstances, when considering whether the cancellation of the appellant’s visa was in the national interest, the Minister had to have regard to the most up to date material before him as to Australia’s non-refoulement obligations in respect of the appellant.

Conclusion

34    The Minister therefore failed to consider a relevant consideration, being the most up to date information before him, that Australia owed non-refoulement obligations in respect of the appellant. That failure was a jurisdictional error. Accordingly, I would allow the appeal, quash the decision and order the Minister to pay the appellant’s costs.

35    The Court is grateful to Counsel who appeared pro bono for the appellant on a referral certificate issued by the Court.

Associate:

Dated:    18 April 2019

REASONS FOR JUDGMENT

LOGAN J:

36    It was the American novelist, Joseph Heller, who inspired, via the title of his novel, “Catch 22” and his highlighting in it of the paradoxes presented in wartime, military aviation service, the taking up into the English language in the 20th century of the expression of that same name. This expression, “Catch 22” is now defined by the Oxford Dictionary to mean a situation “which cannot be resolved because the conditions necessary for its resolution are paradoxical or conflicting. Also more generally: a situation in which a favourable or successful outcome is impossible; a no-win situation, a tricky or intractable problem or dilemma”. “Catch 22” is an accurate and pithy way of describing a proposition that lies at the heart of the appellant’s submissions.

37    In giving his reasons for cancelling the appellant’s visa under s 501BA of the Migration Act 1958 (Cth) (the Act), the Minister voiced an understanding, the correctness of which was upheld by the learned primary judge, that he was not obliged to consider the subject of the appellant’s expulsion or return or “refoulement” (to adopt the international refugee law term, derived from diplomatic French) 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. That was because the appellant was not barred from subsequently applying for a protection visa and the subject of his refoulement would then arise for consideration. The appellant submitted that, in making his cancellation decision in the national interest, the Minister had chosen to advert to risk to the community and had concluded that he presented a risk. That same subject, so the appellant submitted, was a relevant consideration in relation to whether or not he was entitled to be granted a protection visa. Thus, so he submitted, even though he could later apply for such a visa, it was inevitable that any later application must fail, irrespective of whatever conclusion was reached as to Australia’s having a protection obligation to him, based on a well-founded fear of persecution if returned. That was said to be the consequence of the conclusion already reached by the Minister with respect to risk; hence the attraction of the description, “Catch 22”.

38    I have had the advantage of reading in draft the reasons for judgment of Robertson J. His Honour has summarised the background facts, the earlier history of this case, the reasons of the learned primary judge and the submissions of the parties. He has also set out the pertinent provisions of the Act. All of this I gratefully adopt. I repeat only such as is necessary to explain my reasoning. Subject to what follows, I agree with Robertson J.

39    There is nothing in s 501BA of the Act that expressly requires that the Minister consider the subject of refoulement. That is not to say that he cannot permissibly consider that subject, such is the breadth of the term “national interest” in s 501BA(2)(b) of the Act.

40    The appellant accepted that the breadth of the term “national interest” was such as to permit the Minister’s adverting to such a risk. He submitted that, having chosen so to do and reached a conclusion as to risk to the community, it followed from s 36(1C)(b) of the Act that the Minister could not consign to the later determination of any application for a protection visa, the subject of refoulement. He submitted that the Minister was obliged in the circumstances to advert to that subject in conjunction with his taking into account that risk.

41    Article 33 of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (Refugee Convention) deals with the subject of the refoulement of a refugee. It provides:

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.

42    Australia is a signatory to the Refugee Convention but, as the Act currently stands, our parliament has chosen to define who constitutes a refugee and the nature and extent of Australia’s obligation not to expel or return (“refoule”) a refugee not by the incorporation by reference of the Refugee Convention but rather by domestic statutory prescription.

43    Materially, that prescription is found in s 36 of the Act. In s 36(1C) it is stated:

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

   (a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note: For paragraph (b), see Section 5M.

44    Satisfaction that Australia has a protection obligation is a necessary but not sufficient basis for the granting of a protection visa enabling lawful residence in Australia. If, in considering his protection visa application, the Minister or a delegate considered that the appellant is a danger to the Australian community, he would not satisfy the criterion specified in s 36(1C)(b). That would have the consequence that the Minister (or a delegate) would be obliged, by s 65(1)(b) of the Act, to refuse his protection visa application.

45    It would necessarily follow from the presence of s 197C, so the appellant’s submission went, that refoulement would not arise for later consideration at the time of the appellant’s deportation, as required by s 198 for those non-citizens without a valid visa.

46    The Refugee Convention contains no definition of “particularly serious crime”. In the United States of America, the relevant legislation mirrors Article 33 of the Refugee Convention and thus contains no definition of “particularly serious crime”. In that country, the absence of a definition has led to the gradual development by the Board of Immigration Appeals of criteria for determining what constitutes a “particularly serious crime” and to the recognition that a case-by-case analysis of these criteria, not the name of the crime itself, is determinative: Yousefi v Immigration and Naturalization Service 260 F.3d 318 (4th Cir. 2001) at 329-330.

47    In Australia, because of amendments to the Act made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Act No 135 of 2014), the position is different. In s 5M of the Act, “particularly serious crime” has been expressly defined by our parliament:

Particularly serious crime

For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

(a)    a serious Australian offence; or

(b)    a serious foreign offence.

In turn, s 5 of the Act defines both “serious Australian offence” and “serious foreign offence”. Of these, it is only necessary to set out the definition of “serious Australian offence”:

serious Australian offence means an offence against a law in force in Australia, where:

(a)    the offence:

    (i)    involves violence against a person; or

    (ii)    is a serious drug offence; or

    (iii)    involves serious damage to property; or

(iv)    is an offence against section 197A or 197B (offences relating to immigration detention); and

(b)    the offence is punishable by:

   (i)    imprisonment for life; or

(ii)    imprisonment for a fixed term of not less than 3 years; or

   (iii)    imprisonment for a maximum term of not less than 3 years.

The term “serious drug offence” is not defined. Another amendment made by Act No 135 of 2014 was to insert into the Act s 36(1C).

48    The presence in the Act of these definitions makes it unnecessary to detail the criteria developed in the United States for determining what is a “particularly serious crime”. However, a corollary of the development of those criteria in the United States has been a conclusion that whether an alien is a danger to the community is subsumed into this determination. There is a consistent line of authority in United States Circuit Courts that no separate finding as to an alien’s “dangerousness” is required. The view is taken there that the phrase “having been convicted” in Art 33 is descriptive of the alien and does not connect by a conjunction with the phrase, “constitutes a danger to the community”. In other words, the view in that country is that Art 33 creates a “cause and effect” relationship between a “particularly serious crime” and the existence of a danger: Ahmetovic v Immigration and Naturalization Service 62 F.3d 48 (2nd Cir. 1995) at 53.

49    That United States view of the construction of Art 33 of the Refugee Convention is not shared in Australia. At a time prior to the amendment of the Act by Act No 135 of 2014, Jagot and Barker JJ made this observation in relation to Art 33 of the Refugee Convention in SZOQQ v Minister for Immigration and Citizenship (2012) 200 FCR 174 (SZOQQ), at [52]:

Second, it is not enough that a refugee be finally convicted of a “particularly serious crime” before the refugee loses the protection against refoulement in Art 33(1). In addition, the relevant decision-maker must find that the refugee, having been so convicted, constitutes a danger to the community.

It is plain enough from this observation that their Honours did not consider that an alien visa holder’s conviction in respect of a “particularly serious crime” led, consequentially and without a need separately to advert to danger to the community, to eligibility for expulsion or return. A like view of the meaning of Art 33(2) is evident, at [14], in the judgment of Flick J in SZOQQ:

The ordinary meaning of the terms of Art 33(2) simply requires an assessment to be made as to whether a person constitutes “a danger to the community of that country”.

50    The Full Court’s judgment in SZOQQ was reversed on a subsequent appeal to the High Court by the visa applicant: SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577. In that appeal, the correctness of the view expressed by the members of the Full Court that Art 33 of the Refugee Convention did not entail a balancing exercise was not questioned. Rather, the appeal succeeded on a basis not argued either before the Full Court or earlier in the course of proceedings (attention not having earlier been directed to observations made in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 that the operation of Art 33(2) of the Refugee Convention was not translated into the then s 36(2) so as to provide for the extinguishment of extant protection obligations).

51    As a matter of construction, s 36(1C)(b) of the Act takes up the language found in the second limb of the exceptions posited in Art 33(2) of the Refugee Convention. As drafted, s 36 does not posit a “balancing exercise” between the visa criteria there specified. The present appeal was conducted by the parties on the footing that it does not.

52    Further, that conclusion seems to me necessarily to follow from the observations made by the Full Court in SZOQQ about Art 33. The Full Court decided that Art 33(2) of the Refugee Convention did not require that a State Party decision maker must engage in a balancing exercise between the danger to the refugee if returned and the danger to the host community as a sequel to the alien’s having been convicted of a particularly serious crime. As is evident from each of the judgments delivered in the Full Court, that view did not coincide with that of a number of eminent commentators about the Refugee Convention but was considered nonetheless to follow from the text of Art 33.

53    These features of Art 33(2) and, more particularly, s 36(1C)(b) of the Act were essential planks in the appellant’s submissions. In light of the Minister’s conclusion (Reasons, [70]) that, “I find there remains an ongoing risk, albeit low, of [the appellant] reoffending”, it was submitted that, necessarily, any future protection visa application by him would, inevitably, be refused. That refusal would be obligatory even if it were accepted that he was a person to whom a protection obligation was owed. So it was, he submitted, that there could be no postponing by the Minister of the subject of refoulement if the Minister chose, in the context of considering the national interest, to advert to risk to the Australian community.

54    The position adopted by the Minister in his reasons was not happenstance. It reflected, as did the Minister’s submissions in the original jurisdiction and before us, a very particular understanding of the course and effect of prior authority. The same, with respect, may be said of the reasons for judgment of the learned primary judge in upholding the correctness in law of the Minister’s position.

55    The course of prior authority has its Hegelian qualities. It was once thought at intermediate appellate level in this Court that “… by the time an officer is called upon to discharge the duty imposed by s 198(6) of the Act, any claim by a detainee for refugee status has been refused, or is taken to have been refused, in accordance with the processes established under the Act”, such that it was not, “open to an officer to consider whether his or her removal and return to a particular country is conformable with the obligation against non-refoulement in Art 33(1) of the Refugee Convention”: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 (M38/2002) at [71]-[72]. That view did not find later favour with the High Court, as Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Plaintiff M61/2010E) and Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Plaintiff M70/2011) attest. In Plaintiff M70/2011, Gummow, Hayne, Crennan and Bell JJ, referring to a passage in Plaintiff M61/2010E at [27] and emphasising in so doing, “by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason”, stated, at [94]:

… 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 Refugee Convention.

56    Parliament’s response to Plaintiff M61/2010E and Plaintiff M70/2011 was the insertion into the Act by an amendment made by Act No 135 of 2014, of, materially, the present s 197C.

57    The importance of a non-refoulement obligation, as part of the taking up in the Act of Australia’s subscription to the Refugee Convention, as well as the particular focus of s 197C on the removal obligation found in s 198 of the Act, persuaded me, in the exercise of original jurisdiction in Le v Minister for Immigration and Border Protection (2015) 237 FCR 516, that consideration of refoulement must be relevant in the context of an anterior decision by the Minister under s 501(2) of the Act to cancel the visa of a person who had been accepted here as a refugee. Not so said the Full Court on appeal – Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 (Le) – it is possible (s 501E) to lodge a later application for a protection visa and the question of whether a protection obligation is owed to the person and thus whether a non-refoulement obligation exists can be considered then.

58    Then came BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16). In that case, an Assistant Minister, evidently relying upon the Full Court’s judgment in Le, characterised the claim of the appellant in that case to fear harm as possibly giving rise to international non-refoulement obligations but said it was unnecessary to determine whether such obligations were owed because the appellant could apply separately for a protection visa. The Assistant Minister did not acknowledge that any protection visa application made by the appellant could be refused on character grounds before non-refoulement claims were considered. That point had not arisen for consideration in Le. The absence of that acknowledgement was regarded by the Full Court as a distinguishing feature and one productive of jurisdictional error by the Assistant Minister. This same error was identified in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 but it is unnecessary further to refer to that case.

59    The riposte by the Minister to BCR16 was to issue, pursuant to s 499 of the Act, Direction 75 which, as he stated in his reasons in the present case, required that “decision-makers who are considering an application for a protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s 501”. That riposte was held sufficient by Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali). In turn, in Greene v Assistant Minister for Home Affairs [2018] FCA 919 I and, in Turay v Assistant Minister for Home Affairs [2018] FCA 1487, Farrell J considered that Ali had been correctly decided. In the present case, the learned primary judge regarded this trilogy of cases as applicable by analogy to a decision under s 501BA of the Act and applied them to hold that the Minister declining to consider refoulement was not, for the reasons given by the Minister, productive of jurisdictional error.

60    Assuming that they are correctly decided, I respectfully agree with the learned primary judge that, though each of this trilogy of cases concerned a decision made under s 501CA(4), each is applicable by analogy to a decision made under s 501BA of the Act.

61    Relying on an observation as to balancing and qualitative difference, made by Bromberg and Mortimer JJ in BCR16 at [48] – [50], the appellant submitted that this trilogy of cases was not correctly decided. The relevant passage in BCR16 is:

48.    We also accept the appellant’s submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.

49.    In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.

50.    For example, if the Minister is satisfied that the appellant has been “convicted by a final judgment of a particularly serious crime” and “is a danger to the Australian community” (the criterion in s 36(1C)(b)), then s 65 compels the Minister to refuse to grant a protection visa. Whether the risk of harm to the appellant in Lebanon might be real, it will avail the appellant nought if other visa criteria are found not to be satisfied.

62    While I am receptive to the submission that the trilogy of cases was not correctly decided, I am not at all so persuaded.

63    That the granting or refusal of a visa pursuant to s 65 of the Act is qualitatively different to the exercise of a discretionary power by the Minister under s 501BA of the Act, as here, or under s 501CA(4), as in the trilogy of cases, may, for the reasons given in BCR16 at [48] – [50], readily be accepted. What is found in s 65 of the Act is a statutory power that must be exercised in a particular way, by the granting or refusal of a visa, depending on a state of administrative satisfaction as to whether the criteria for the visa concerned are or are not met. It entails no “balancing exercise”: SZOQQ.

64    In contrast, a “balancing exercise” as between competing considerations is permitted (but not mandated) under s 501BA, as it is under s 501CA(4), in the exercise of the respective discretionary powers. That s 501BA might permissibly admit of the Minister, under the overall rubric of a consideration of the “national interest”, undertaking, if he chooses, a “balancing exercise” as between whether a person is a refugee and whether that person is a danger to the community does not mean that he is obliged to undertake such an exercise. He certainly would not be obliged to undertake such a “balancing exercise” in order to comply with Australia’s subscription to the obligation found in Art 33 of the Refugee Convention. That is because, in light of SZOQQ, Art 33 entails no “balancing exercise”.

65    Further, it does not follow from this “qualitative difference” that the Minister was obliged, in exercising in relation to the appellant the discretionary power conferred by s 501BA, to advert to whether Australia owed a protection obligation to him. Such a conclusion would be inconsistent with the reasoning in Full Court’s judgment in Le. The Minister’s decision under s 501BA does not prevent the appellant from making a later application for a protection visa: s 501E(2)(a) of the Act. If the appellant chooses to apply for a protection visa, Direction 75 will oblige all delegates first to consider whether they are satisfied that the refugee and complementary protection criteria are met before considering ineligibility criteria. That is also, on the evidence, a departmental practice of which the Minister is aware.

66    It was submitted though that the Minister might make the protection visa application decision personally and that s 499 of the Act does not bind him to follow Direction 75. In Re Patterson; ex parte Taylor (2001) 207 CLR 391, Gummow and Hayne JJ observed, at [220], “The central purpose of responsible government is secured by the requirement in s 64 of the Constitution for administration of the departments of State by Ministers who are members of one or other Houses of the Parliament.” Under our system of responsible government, the departmental practice of which the Minister is aware is the practice for which he is responsible to Parliament. It is not just the department’s practice; it is the Minister’s practice. The Minister has deliberately announced this practice to the appellant in explaining why, in relation to the exercise of the power under s 501BA, he has chosen not to advert to non-refoulement considerations. The appellant is entitled to expect, in relation to any protection visa application that he may make in the future, that, as a matter of procedural fairness, the Minister will follow this announced practice, should the Minister come to consider that application personally: Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1. In these circumstances, it is nothing to the point that Direction 75 does not, in terms, bind the Minister. That direction confirms the Minister’s policy for the department for which he is responsible to Parliament. At the time when the Minister made his decision under s 501BA of the Act, there was no reason to anticipate that, if a protection visa application were made, either he or a delegate within his department would do anything other than first consider whether the appellant was a person to whom a protection obligation was owed (or a person entitled to complementary protection).

67    I see no reason to regard the trilogy of cases mentioned about the effect of Direction 75 as wrongly decided.

68    It should not be concluded that favourable satisfaction in relation to one or the other of the protection visa criteria will be rendered futile by the conclusion reached for the purposes of the Minister’s s 501BA national interest assessment. There are a number of reasons why that is so.

69    First and foremost, the Minister has not, in making his national interest assessment, even purported to assess whether, in terms of s 36(1C)(b), the appellant “is a danger to the Australian community”. Contrary to the assumption underpinning the appellant’s submissions, it should not be assumed that the Minister’s inability to “rule out the possibility of further offending” (Reasons, [100]), which informed his conclusion that the appellant represented “an unacceptable risk of harm to the Australian community” (Reasons, [102]), is to be assimilated with the subject for satisfaction posited by s 36(1C)(b) of the Act. The point raised is, superficially, a straightforward matter of language but, as will be seen, deceptively so and productive of much controversy in international refugee law. Perhaps surprisingly, it has not hitherto been the subject of detailed judicial consideration in Australia.

70    The observation made in Plaintiff M61/2010E at [27], that the Act as it then stood contains, “an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol” remains true of the Act in its present form. This is especially evident in the present s 36 of the Act. Thus, even if the Minister (or a delegate) is satisfied in terms of s 36(2)(a) of the Act that a person is “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee”, the obligation to grant that person a protection visa will not arise if the Minister is satisfied that one or the other (or each) of the criteria specified in s 36(1C) is applicable to that person. In this way, the criteria in s 36(1C) can be seen to take up an exception found in Art 33 of the Refugee Convention in relation to the non-refoulement of a refugee.

71    As to the principle of non-refoulement, a Canadian academic, Dr Hilary Cameron has observed in her recent work, Refugee Law’s Fact-Finding Crisis: Truth, Risk and the Wrong Mistake (Cambridge University Press, 2018), at p 180:

At the beating heart of refugee law is a moral judgement: when a person fleeing persecution has reached safety, it is wrong to return them home to their waiting persecutors. Rabbi Dr Isaac Lewin, addressing the delegates at the drafting of the Convention, proposed that Jewish law had long recognised that this “ethically unsurpassed” judgement should bind “all humanity”. He noted that the prophet Amos, writing nearly three millennia earlier, had felt that “God would never forgive” two communities that had committed the sin of sending Refugee home to face torment. “We therefore have a precedent for the present convention dating back from the eighth century BCE.”

[Footnotes omitted]

In her work, Dr Cameron also cites with approval this description of the non-refoulement principle, “the cornerstone of international protection of refugees” (p 181, fn 41 referencing Walter Kälin, Martina Caroni, Lukas Heim, “Article 22, para. 1 1951 Convention” in Andreas Rimmermann, ed, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol & Commentary (Oxford: Oxford University Press, 2011) 1327 at p 1395). Such, truly, is the nature and purpose of the international obligation found in the Refugee Convention, to which the Act is responsive.

72    The meaning to afford “danger” in s 36(1C)(b) of the Act must commence with the text itself, with context and general purpose and policy being relevant to the determination of the meaning to give to the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27. The word “danger” can mean “risk” but also carries with it the meaning of “the condition of being exposed to the chance of evil; risk, peril” (Oxford Dictionary). As is observed in respect of the word, “danger” in Garner’s Modern English Usage, “Idiomatically speaking, one runs a risk, not a danger.” Yet, as a matter of ordinary experience of English idiom, the word, “danger” on a public warning sign conveys a very different and heighted sense of potential peril than would the word, “risk”. Indeed, for that reason, and again as a matter of ordinary experience, it is rare, if at all, that one encounters a warning sign with the word, “risk” in prominence. “Danger” and “risk” are not, in English usage, in my view, exact synonyms. When regard is had both to the text and to the nature and purpose of the provision, it is inherently unlikely that, the word, “danger”, as found in the exception, refers to a risk that is discernible but which is trivial, nothing more than a bare possibility.

73    This understanding of the import of the word “danger” accords with the understanding in the United States of its meaning as used in the other limb of the exception to non-refoulement, “is a danger to the security”. In Yusupov v Attorney General of the United States 518 F.3d 185 (3d Circuit, 2008) at 201-202, a submission made on behalf of the United States Attorney-General that a “danger” could be found merely if a person may pose a danger to security was rejected with the court holding that the provision only applies to an individual who actually is a danger.

74    In context, the word “danger” as it appears in s 36(1C)(a), “is a danger to Australia’s security”, must carry the same meaning as it does in s 36(1C)(b).

75    This does not mean that the “danger” must be proved to demonstration. In s 36(1C), it is a subject for Ministerial “satisfaction”. That is a congruent legislative response to the requirement found in Art 33 of the Refugee Convention that there exist “reasonable grounds for regarding”. But the satisfaction must be that the person is and will into the indefinite future be a danger, not that the person once was a danger.

76    In Australia, an influential case in relation to the subject of “danger” as used in Art 33(2) of the Refugee Convention and now in s 36(1C) of the Act has proved to be the Administrative Appeals Tribunal case, WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434; AATA 512 (WKCG). The Tribunal was constituted by The Hon Deputy President B Tamberlin QC, as he became after retirement from this Court. Both as a member of this Court and in his earlier career at the Bar the Deputy President enjoyed a high reputation, which doubtless explains why his reasons in WKCG have proved influential. The learned Deputy President observed (at [25] – [26]):

25.    The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.

26.    Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

…

30.    Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a “real probability” of harm being caused to the community.

31.    The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”

[Emphasis added]

77    SZOQQ was determined by the Administrative Appeals Tribunal on the basis, promoted by the parties, that WKCG was correctly decided, as it was before the Full Court. But the Full Court expressly left open the correctness of WKCG.

78    That, as is observed in WKCG, the question of whether a person constitutes a “danger” is one of fact and degree necessarily determined in the circumstances of a particular case may be accepted. So, too, may it be accepted that considerations to which the Deputy President adverts at [26] are pertinent. In EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536 (EWG17), Collier J referred to WKCG with apparent approval but her Honour’s approval (at [52]) expressly related to the proposition (found in WKCG at [25]), that “danger” must be determined in the circumstances of a given case.

79    WKCG and EWG17 were the only cases to which we were referred by the parties in the course of submissions in this appeal in relation to Australian consideration of the word, “danger” as used either in Art 33 or s 36(1C).

80    My own further researches have disclosed that, also last year, WKCG was additionally referred to in this Court by Charlesworth J in AFY18 v Minister for Home Affairs [2018] FCA 1566 and by Siopis J in Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27. In neither case was there any need to consider the correctness of all that was said in WKCG about “danger”.

81    It is not evident from the Deputy President’s reasons in WKCG that he was referred to a judgment of the Court of Appeal for England and Wales, EN (Serbia) v Secretary of State for the Home Department [2010] QB 633; [2009] EWCA Civ 630 (EN (Serbia) v Secretary of State for the Home Department), which was decided earlier in 2009. EN (Serbia) v Secretary of State for the Home Department has since become the leading United Kingdom authority on the meaning of Art 33 of the Refugee Convention. That case reveals a sharp difference of views as to the meaning of Art 33(2) as between the United Nations High Commissioner for Refugees (UNHCR) and the leading academic commentator on the Refugee Convention, Professor Hathaway, on the one hand and the Court of Appeal on the other. The Court of Appeal declined to place any “very serious” gloss on the word “danger” in Art 33. The nature of the disagreement between the Court of Appeal and the UNHCR and Professor Hathaway is apparent from the judgment of Stanley Burnton LJ, at [41] – [45], with whom Hooper and Laws LJJ agreed. The passage concerned is somewhat lengthy but needs to be set out in full, because of its pertinence, by analogy, to the construction of s 36(1C)(b) of the Act:

41.    The claimants submitted that it is necessary to interpret article 33(2) narrowly and restrictively. Their submission has the support of impressive authority. Sir Elihu Lauterpacht QC and Daniel Bethlehem QC state in their Joint Opinion to the UNHCR The scope and content of the principle of non-refoulement (2001, revised 2003), at paras 186 and 191:

“186.    This double qualification – particularly and serious – is consistent with the restrictive scope of the exception and emphasises that refoulement may be contemplated pursuant to this provision only in the most exceptional of circumstances …”

“191    Regarding the word ‘danger’, as with the national security exception, this must be construed to mean very serious danger. This requirement is not met simply by reason of the fact that the person concerned has been convicted of a particularly serious crime. An additional assessment is called for which will hinge on an appreciation of issues of fact such as the nature and circumstances of the particularly serious crime for which the individual was convicted, when the crime in question was committed, evidence of recidivism or likely recidivism, etc.”

42.    In Hathaway, The Rights of Refugee under International Law Cambridge University Press (2005), p 352, Professor Hathaway stated:

“… the Refugee Convention accepts that in extreme and genuinely exceptional cases, the usual considerations of humanity must yield to the critical security interests of the receiving state. Thus, if the demanding criteria of article 33(2) are satisfied, an asylum state may, assuming there is no other option, remove a refugee convicted of a particularly serious crime who poses a danger to the host community’s safety – even if the only option is to send the refugee to his or her country of origin.”

43.    In my judgment, these authorities, and in particular the Lauterpacht and Bethlehem joint opinion, add an unjustified gloss to article 33(2). To construe “danger” as restricted to “very serious danger” is to add words that the member states did not include. It is to change the meaning of a negotiated settlement. In Brown v Stott [2003] 1 AC 681, Lord Bingham of Cornhill said, with reference to the Human Rights Convention at p 703:

“In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept.”

44.    This passage was cited by Lord Brown of Eaton-under-Heywood in his speech in R (Hoxha) v Special Adjudicator [2005] 1 WLR 1063 with reference to the Refugee Convention, at para 85:

“It is one thing to invite this House to construe the Convention as a living instrument generously and in the light of its underlying humanitarian purposes; quite another to urge your Lordships effectively to rewrite it so as to create a fresh entitlement to refugee status based upon no more than historic fear and present compelling reasons for non-return, with no need at all for any current fear of persecution. That would be to distort entirely the language and structure of the text and in my judgment do a serious disservice to the cause of human rights generally.”

45.    These remarks apply with equal force here. Moreover, I see no need for any gloss on the express words of article 33(2). The words “particularly serious crime” are clear, and themselves restrict drastically the offences to which the article applies. So far as “danger to the community” is concerned, the danger must be real, but if a person is convicted of a particularly serious crime, and there is a real risk of its repetition, he is likely to constitute a danger to the community.

82    I do not, with respect, doubt that, like Art 33(2), no gloss should be put on the word “danger” as it appears in s 36(1C) of the Act. But it does not, in my view follow from this that the sentiments evident in the Joint Opinion to the UNHCR The Scope and Content of the Principle of Non-Refoulement of Sir Elihu Lauterpacht QC and Daniel Bethlehem QC (2001, revised 2003) and the view expressed by Professor James Hathaway in his work, The Rights of Refugee under International Law (2005), in the quoted passage from EN (Serbia) v Secretary of State for the Home Department, are entirely without merit. In my view, those sentiments and that view are, effectively, taken up by the understanding that, as a matter of ordinary English usage, “danger” carries a qualitatively different meaning to “risk”. It may be that this is what is intended to be conveyed by Stanley Burnton LJ in his references to “the danger must be real” and “real risk”.

83    In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.

84    That a narrower and more restrictive meaning is to be given to “danger” is additionally supported by the following, in my view. Article 1F of the Refugee Convention excludes from the Convention’s application, and thus from the protections for which it provides:

any person with respect to whom there are serious reasons for considering that:

(a)    he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)    he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)    he has been guilty of acts contrary to the purposes and principles of the United Nations.

In Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982; [1999] INLR 36, the Supreme Court of Canada confirmed what a reading of the Refugee Convention would in any event suggest, which is that Art 1F and Art 33(2) serve different purposes; Art 1F excludes from the Convention a person who may or may not fall within the definition of “refugee”, whereas Art 33(2) permits the refoulement of a person who is a refugee but in respect of who there are reasonable grounds for believing that that person is a danger to national security or a danger to the community.

85    Within the Act, s 5H(2) in the definition of “refugee” can be seen to be responsive to Art 1F in the same way that s 36(1C) can be seen to be responsive to Art 33(2). In Al-Sirri v Secretary of State for the Home Department [2013] 1 AC 745, at [16], the United Kingdom’s Supreme Court held that Art 1F of the Refugee Convention should be interpreted narrowly and restrictively, because of the potential consequences of excluding someone from the application of that convention. That same “potential consequences” rationale should, in my view, inform the construction of s 36(1C) of the Act.

86    For completeness, I should record that there is a more wide-ranging survey of international jurisprudence concerning the meaning of “Danger to the community” to be found in Chapter 4, section 4.2.3 of Joseph Rikhof’s work, The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law (2012). However, that survey reveals no jus cogens, no norm accepted by the international community of states, as to the meaning to afford the word, “danger” in Art 33(2) of the Refugee Convention.

87    Other difficulties about an uncritical acceptance of all that is stated in WKCG arise from that part of the passage quoted to which I have given emphasis. That there is a “danger” is, necessarily in my view, a conclusion based on an assessment of the present “level of risk”. But that does not mean that the word, “danger” carries a meaning that differs from case to case. Its meaning is fixed, but whether it is present in respect of, materially, a person applying for a protection visa will depend on the circumstances of the given case. Further, the reference to “a lesser degree of satisfaction than that required by the expression “probable” antedate and are inconsistent with the observations made by Flick and Perry JJ about administrative fact finding in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555. The state of satisfaction in respect of the subject to which s 36(1C)(b) of the Act is directed must be one reasonably open on the evidence before the Minister, not one which “no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [130] per Crennan and Bell JJ. With respect, to use the word “probable” in relation to administrative fact finding is to borrow “from the universe of discourse which has civil litigation as its subject”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282.

88    The other reasons why the Minister’s s 501BA decision about the appellant does not ordain that a later protection visa application must fail may be more shortly stated. Quite apart from a very different touchstone, the decision in respect of any protection visa application will necessarily have to be made in the future and on the material then to hand. Its focus will be on whether then and into the indefinite future the appellant presents a danger to the community, not whether he once did. The Minister’s s 501BA decision is irrelevant to the making of that future decision. Further, it should not be assumed that either the Minister or a delegate would regard it otherwise and fail to have regard to the merits of the protection visa application.

89    In short then, the appellant is not subject to any “Catch 22’, should he apply in the future for a protection visa.

90    Proposed Ground 3 need not be addressed, as leave to raise this ground was refused at the hearing of the appeal.

91    The jurisprudential dynamic engendered by the sheer volume of cases arising under the Act with which this Court presently deals was such that the parties sought leave to make supplementary written submissions relating to two cases which had been decided in the original jurisdiction after the reservation of judgment on the appeal. These cases were Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 (Ezegbe) and Omar v Minister for Home Affairs [2019] FCA 278 (Omar). Leave was granted to make such submissions.

92    Ezegbe adds nothing which advances any of the appellant’s grounds of appeal. As, with respect, correctly did the learned primary judge, in Ezegbe Perram J declined to speculate as to what might be the fate in the future of any subsequent protection visa application. Further, for reasons given above, in relation to the “danger to the community” criterion for satisfaction, any such application made in the future would fall to be measured by a very different and more demanding touchstone than the Minister permissibly chose to set for himself in exercising his national interest discretion.

93    As to Omar, I assume in the appellant’s favour and without expressing any view, one way or the other, on that subject, that it was correctly decided. On that assumption, the point which found favour, non-engagement with a subject raised by the representation, does not arise in this case. That is, as the Minister submitted, for two reasons. The first is that the appellant disavowed at the hearing of the appeal any submission that the Minister was obliged to consider whether protection obligations were owed to the appellant. The second is that the subject was not one raised by the appellant in the submission which he chose to make to the Minister in relation to the exercise of the s 501BA(2) power.

94    I join with Robertson J in expressing gratitude to counsel for the appellant who appeared pro bono on a referral certificate issued by the Court.

95    For these reasons, I would dismiss the appeal.

Associate:

Dated:    18 April 2019

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

96    This appeal is from the orders of a judge of this Court made on 17 October 2018.

97    As summarised by the primary judge, the appellant sought judicial review of a decision dated 15 February 2018. That decision, which cancelled the appellant’s visa, was made by the Minister for Home Affairs and Immigration and Border Protection (the Minister) under s 501BA of the Migration Act 1958 (Cth) (the Act). The decision was made 15 months after a decision by the Administrative Appeals Tribunal (AAT) under s 501CA of the Act to revoke an earlier decision by the Minister’s delegate under s 501(3A) of the Act to cancel the appellant’s visa.

98    As found by the primary judge, the appellant has lived in Australia since 2000, having arrived here when he was aged 21. In 2004, he applied for a protection visa and claimed that he would be persecuted in his home country based on his homosexuality.

99    On 16 November 2006, he was granted a Class XA subclass 785 temporary protection visa, due to his stated homosexuality.

100    In November 2009, this visa was replaced by a Class CD subclass 851 resolution of status visa. It was this visa which the Minister cancelled on 15 February 2018.

101    On 27 April 2016, the appellant’s then visa was mandatorily cancelled by the Minister’s delegate acting under s 501(3A) of the Act after the appellant was convicted in the District Court of New South Wales of “supply prohibited drug greater than indictable quantity (not cannabis)” and sentenced to imprisonment for two years and eight months. Another Ministerial delegate subsequently declined to revoke that cancellation decision under s 501CA(4). The non-revocation decision was the subject of an application for merits review to the AAT which, on 24 November 2016, set aside the delegate’s decision and ordered that the visa cancellation decision be revoked.

102    In light of the AAT’s decision, the appellant was released from immigration detention. It was 15 months later (on 15 February 2018) that the Minister made his decision under s 501BA to cancel the appellant’s visa. It took another six weeks for the Department to notify the appellant of the Minister’s decision. These delays, the primary judge said, were unexplained. They did not then form part of the application for judicial review to this Court.

The Minister’s reasons

103    The reasons provided by the Minister, as required by s 501G, set out why the Minister was satisfied that the appellant did not pass the character test and why the Minister was satisfied that it was in the national interest to cancel the appellant’s visa. The statement also set out the Minister’s reasons for not exercising his residual discretion under s 501BA not to cancel the visa even though the Minister was satisfied both that the appellant did not pass the character test and that it was in the national interest to cancel his visa. These reasons included international non-refoulement obligations.

104    The appellant did not dispute the Minister’s finding that he did not pass the character test having regard to the combined effect of ss 501(6)(a) and 501(7)(c).

105    The proceeding before the primary judge insofar as presently relevant related to the appellant’s claims that the Minister fell into jurisdictional error in his reasoning with respect to Australia’s non-refoulement obligations.

106    The parts of the Minister’s statement of reasons relevant to this appeal are as follows:

International non-refoulement obligations

75.    [The appellant] submits that he would face harm if returned to [redacted] and that he urgently seeks a ‘non refoulement order.’ I note also [the appellant’s] visa history, including grant of a Class XA subclass 785 Temporary Protection visa on 16 November 2006 due to his stated homosexuality.

76.    In his letter of 29 April 2016, [the appellant] stated he believed the view towards homosexuality in [redacted] was worse than in 2006 and his life would be in ‘very real danger’ if he returned there. [The appellant] further stated he would be targeted by Islamic extremists in [redacted]. [The appellant] attached two media articles to his letter to demonstrate relevant circumstances in [redacted], including a Sydney Morning Herald article dated [redacted] that reported on the fatal stabbing of the editor of [redacted] first LGBT magazine.

77.    [The appellant] raised similar fears in his personal details form dated 22 August 2014, noting he would be ‘killed (stoned to death) without a doubt’ if returned.

78.    The AAT, in its decision record of 24 November 2016, did not make a finding regarding [the appellant] and Australia’s non-refoulement obligations. I note the AAT stated it was likely [the appellant] would face discrimination and persecution in [redacted] if his sexual orientation became known and suppressing his sexuality to avoid persecution would be an ‘onerous burden’.

79.    I note that the effect of s501E(2) of the Act is that [the appellant] would not be prevented from lodging a protection visa application following a decision by me to cancel his current visa.

80.    I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the appellant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.

81.    My conclusion in this respect is based on my awareness that my Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. Furthermore, to reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501. I am therefore confident that [the appellant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

82.    I have also considered [the appellant’s] claims of harm upon return to [redacted] outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the appellant’s] claims are such as to engage non-refoulement obligations, he would face hardship arising from his stated homosexuality were he to return to [redacted].

The statutory provisions

107    The relevant statutory provisions were as follows:

501BA    Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

Note:    For notification of decisions under subsection (2), see section 501G.

The reasons of the primary judge

108    The paragraphs of the reasons of the primary judge referred to in the grounds of appeal, together with their immediate context, are as follows:

23    Direction 75 does not bind the Minister, but it binds other decision-makers, including Ministerial delegates. I accept the Minister’s submission that the making of Direction 75 caused the Minister to express his confidence in [81] of the Statement of Reasons that the applicant would have the opportunity to have his protection claims fully assessed in the course of an application for a protection visa. This is because Direction 75 is legally binding on, inter alia, delegates and reinforces the Department’s practice in processing protection visa applications to consider the application of the protection-specific criteria before proceeding to consider other criteria, such as character-related criteria. As noted above, however, Direction 75 does not bind the Minister.

24    Secondly, and not without some hesitation, I accept the Minister’s submission that the fact that Direction 75 does not bind him personally has no material consequence in this proceeding. That is so for the following reasons.

(i) The proper construction of the Minister’s statement of reasons

25    It is to be noted that, in [80] of his statement of reasons, the Minister said that it was unnecessary for the purposes of his s 501BA decision to determine whether non-refoulement obligations were owed to the applicant as the applicant could apply for a protection visa and, in that event, the issue of any non-refoulement obligations “would be fully considered in the course of processing the application”. The language “would be” is clear and unambiguous. It implicitly contemplates the possibility that a future protection visa application might be considered and determined by the Department or by the Minister personally.

26    The applicant seized on the fact that the immediately succeeding paragraph ([81] of the statement of reasons) is directed exclusively to the Minister’s evaluation of what would happen if a future protection visa application were considered and determined by his Department. It is in that context that reference is made by the Minister to his awareness of the Department’s practice of considering protection-specific criteria before turning to criteria such as character-related criteria, and that this practice was reinforced by the legally binding nature of Direction 75. The applicant emphasised that the Minister made no specific reference in his statement of reasons to the possibility that he might personally consider and determine any protection visa application by the applicant and that the Minister was not legally bound to act in accordance with Direction 75.

27    It is true that the statement of reasons is silent on the possibility that the Minister might personally be involved in determining any protection visa application by the applicant and that, if he were, he is not bound by Direction 75. It is equally true that the Minister does not state that he will not become personally involved in the consideration of any such visa application. I do not consider, however, that these omissions from the Minister’s statement of reasons reveal jurisdictional error.

28    On a fair reading of the Minister’s statement of reasons (consistently with the approach required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259), the Minister appears to have contemplated that it was likely that any such application would be considered by the Department and not himself personally.

29    It may reasonably be inferred, however, that the Minister was well aware that s 65 of the Act also empowered him personally to make a decision in respect of any valid application for a protection visa (see s 46) as required by s 47 of the Act. If that occurred, the Minister would be obliged, in the context of making a determination under s 65 of the Act, to consider the relevance, if any, of Australia’s non-refoulement obligations in respect of the applicant. This is what the Minister apparently had in mind when he made the unambiguous statement in [80] that “the existence of otherwise of non-refoulement obligations would be fully considered in the course of processing” any future protection visa application (emphasis added). Arguably, such an unequivocal statement could have implications for procedural fairness requirements in the event that the statement was not honoured in the future and the applicant was not given a prior opportunity to comment upon the proposal not to honour the statement (see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [45]-[48] per Kiefel, Bell and Keane JJ).

30    It may also reasonably be inferred that the current Minister was aware of the unequivocal statement made by his predecessor when s 197C was inserted in the Act in 2014, that “asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations…”.

(ii) The importance of the different stages of decision-making under the Act

31    I do not consider that, in the context of this proceeding, the Minister was obliged to take the matter any further than he did in his statement of reasons, having regard to the particular stage of decision-making with which the Minister was engaged. The Minister was explaining why he had exercised his power under s 501BA, which is necessarily an earlier stage in a potentially broader decision-making process which might see the applicant lodge another application for a protection visa as he would be entitled to do having regard to s 501E(2) of the Act. If the applicant makes a valid visa application as defined in s 46 of the Act, the Minister (or a delegate) is statutorily obliged to either grant or refuse the visa under s 65. If it transpires that the applicant makes a valid application and it is refused by the Minister personally and the Minister fails to have due regard to Australia’s non-refoulement obligations, the applicant will be entitled to challenge that decision by way of judicial review (as to which see, by way of analogy, NKWF v Minister for Immigration and Border Protection [2018] FCA 409 and AQM18 v Minister for Immigration and Border Protection [2018] FCA 944). As matters stand at present, however, I do not accept the applicant’s submission that the Minister’s statement of reasons in respect of his decision under s 501BA displays jurisdictional error as alleged by ground 1.

(iii) Other relevant first instance decisions

32    The need to appreciate the different stages of decision-making under the Act is at the heart of a trio of recent first instance decisions of the Court, upon which the Minister relied.

33    Those decisions are Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) per Flick J; Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene) per Logan J and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Turay) per Farrell J. Each of those decisions involved challenges to decisions made under s 501CA(4) to not revoke a mandatory visa cancellation decision. I consider, however, that the reasoning is also relevant to the process of decision-making under s 501BA.

34    In Ali, in response to a similar submission to that which the applicant advances here, Flick J emphasised that the relevant decision-making process under s 501CA(4) required a state of satisfaction to be formed, not as to whether a person satisfied the criteria for the grant of a visa under s 36(2), but rather a state of satisfaction as to whether there was “another reason” why the original decision should be revoked (see Ali at [28]). His Honour then added at [31] that, if the applicant were to apply in the future for a visa (including a protection visa), and it was considered by the Minister personally, then the Minister would be confronted with the need, at that time, to consider whether the application should again be refused on the basis of non-satisfaction of the character test and/or whether the applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia. His Honour then concluded at [33]-[34]:

33.    But these are all decision to be made and – if necessary – reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing.

34.    Of present concern is the fact that the reasoning process of the Assistant Minister in respect to the decision now under review exposes no misunderstanding as to the power then being exercised. That reasoning process exposes no misunderstanding as to:

•    the sequence in which claims would be resolved in accordance with Direction No 75.

Nor does the reasoning process expose any misunderstanding, or even say anything with respect to:

•    the manner in which any future applications may be resolved or the decisions which may be made by the Minister if called upon to do so.

35    Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]. As the judgment in Turay was published in Court on the day of the hearing of this matter, the parties were given leave to file brief post-hearing supplementary submissions on its relevance to this proceeding. Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making, when considering a judicial review challenge to a particular exercise of power in what might potentially be part of a wider process of decision-making, such as that presented by the Minister’s decision here under s 501BA.

(b) Ground 2

36    This ground is closely related to ground 1, save that the emphasis is upon the alleged misunderstanding by the Minister when he stated in [80] of his statement of reasons that non-refoulement obligations would be fully considered in the course of processing the application. The applicant contended that there was a real and substantial risk that if he submitted a valid protection visa application, it would fail, largely because of the ineligibility criteria set out in provisions such as s 36(1C)(b) and (2C)(b)(ii) of the Act as well as the requirement that the decision-maker be satisfied that grant of the visa is in the national interest (referring to reg 785.227 in Sch 2 of the Migration Regulations 1994 (Cth)). The applicant emphasised that there was no material before the Court to indicate that the Minister would exercise his non-compellable powers under s 195A or 197AB of the Act and that the legal effect of ss 198 and 197C was that the applicant would have to be removed from Australia if he were refused a visa, citing DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 at [26]-[27] per North ACJ.

37    I reject these submissions for similar reasons to those given above for rejecting ground 1. It is premature to speculate whether or not full consideration will be given to Australia’s non-refoulement obligations in respect of any future visa application by the applicant.

The grounds of appeal

109    The grounds of appeal are as follows:

1.    The primary judge erred in:

(a)    accepting the respondent’s submission (at [24]) that the fact that Direction 75 does not bind him personally has no material consequence in this proceeding;

(b)    finding (at [29]) that if the appellant were to make a valid application for a protection visa, the respondent would be obliged, in the context of making a determination under s 65 of the Migration Act 1958 (the Act) to consider the relevance, if any, of Australia's non-refoulement obligations in respect of the appellant;

(c)    finding (at [31]) that if the appellant were to make a valid application for a protection visa and it is refused by the respondent personally and the respondent fails to have due regard to Australia's non-refoulement obligations, the applicant will be entitled to challenge that decision by way of judicial review; and/or

(d)    finding (at [31], and see also at [35] and [37]) that the respondent was obliged to take the matter any further than he did in his statement of reasons, having regard to the particular stage of decision-making with which the respondent was engaged (and in this respect the Court should find that the decisions in Ali v Minister for Immigration and Border Protection [2018) FCA 650; Greene v Assistant Minister for Home Affairs [2018] FCA 919 and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 were wrongly decided).

2.    The primary judge ought to have found that:

(a)    if the appellant were to make a valid application for a protection visa and such an application were determined by the respondent personally, the respondent would not be legally obliged to consider the relevance, if any, of Australia's non­refoulement obligations in respect of the appellant but could (and would be bound to) lawfully refuse the protection visa in the (likely) event that the conditions specified ins 36(1B)(b) and/or s 36(2C)(b)(ii) and/or cl 785.227 of Sch 2 to the Migration Regulations 1994 are not met; and/or

(b)    in any event, Australia's non-refoulement in respect of the appellant would play a qualitatively different role in any determination of a protection visa application under s 65 of the Act to the role they might play as a discretionary consideration in the context of a decision made under s 501BA of the Act (as explained, in respect of s 501CA of the Act, in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [49], [73] and [96]); and

(c)    by reason of his failure to appreciate the matters set out in (a) and/or (b) above, the respondent fell into jurisdictional error in failing to carry out the task required by s 501BA of the Act, in that his decision was based on an incorrect understanding of the law, namely that:

(i)    non-refoulement obligations would, necessarily as a matter of law, be considered in assessing any future visa application by the appellant; and/or

(ii)    the existence or otherwise of non-refoulement obligations would be “fully considered” in the course of processing the application.

3.    The appellant seeks leave to advance the following further ground which was not raised before the primary judge. The primary judge ought to have found that the respondent had fallen into jurisdictional error because:

(a)    on a proper construction of s 501BA of the Act, any decision under s 501BA(2) must be made within a reasonable time of the original decision (as defined in s 501BA(1) of the Act); and

(b)    the respondent made the decision under review 15 months after the original decision, which was not within a reasonable time.

The submissions of the parties

110    In his written submissions, the appellant said the appeal raised two issues:

(a)    first, that the primary judge erred in reaching the conclusion that the Minister had not fallen into jurisdictional error in reasoning that it was unnecessary to determine whether non-refoulement obligations are owed in respect of the appellant. This ground involved determining whether the Minister made one or more errors of the kind discussed in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16 );

(b)    second, if the Court granted leave, that the Minister fell into jurisdictional error in making the decision under s 501BA outside a reasonable time for the making of such a decision. This ground was not raised before the primary judge.

The grounds relating to non-refoulement obligations

111    These grounds were divided by the appellant into two parts.

112    The appellant submitted that the Minister had made what was referred to as the first misunderstanding in BCR16. It was that the Minister had assumed that an assessment of non-refoulement obligations would be made in a future protection visa application, when that would not necessarily occur. As Bromberg and Mortimer JJ explained in BCR16, the appellant submitted, the structure of decision making on a protection visa application under s 65 of the Act was very different to the decision to be made under s 501CA(4). While the revocation power required matters to be weighed in the balance, the power under s 65 required a visa to be granted if the Minister was satisfied certain criteria were met and to be refused otherwise. The mandatory criteria for a protection visa included character and security requirements likely to be pertinent to the situation of a person whose visa had been cancelled and the cancellation not revoked under s 501CA(4). It followed that a protection visa might be refused without non-refoulement obligations being considered, if the Minister or a delegate first found that other criteria were not satisfied. The appellant referred generally to BCR16 at [37]-[52] and [67]-[69].

113    In the present case, the appellant submitted, the Minister had also reached the conclusion, at [80], albeit in the context of a decision under s 501BA(2) rather than s 501CA(4), that it was unnecessary to determine whether non-refoulement obligations were owed in respect of the appellant, because the appellant was able to make a valid application for a protection visa “in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application”.

114    The appellant submitted that the primary judge erred in finding that the Minister had not fallen into jurisdictional error in reaching that conclusion. That was so for two reasons:

(a)    first, the primary judge erred in reaching the conclusion that non-refoulement considerations would be (necessarily, as a matter of law) considered in any future protection visa application that the appellant might bring, even if the application were determined by the Minister personally;

(b)    secondly, the primary judge erred in relying upon the different stages of decision-making under the Act. That reasoning had no regard to the qualitatively different role that non-refoulement obligations might play in the context of determining a protection visa application, compared to the role they might play in relation to a determination under s 501BA(2).

Claimed error in relation to an obligation to consider non-refoulement on any future protection visa application

115    As to the first of these errors, the appellant submitted that, as the primary judge noted at [22], Direction 75 was not in place when BCR16 was decided and requires Ministerial delegates considering an application for a protection visa to first assess whether refugee and complementary protection criteria are met before considering ineligibility criteria, including character (and, it should be added, security) criteria.

116    Direction 75, however, does not bind the Minister himself, as the primary judge noted at [23]. The appellant submitted that as a matter of law, any future application for a protection visa which the appellant might make may be determined by a delegate of the Minister (s 496 of the Act), but it may also be determined by the Minister himself. Were the application to be determined by the Minister, there would be nothing legally requiring the Minister to assess whether non-refoulement obligations are owed in respect of the appellant. Instead, as the majority found in BCR16, the Minister might determine to refuse such an application on other criteria without making any assessment of non-refoulement or the criteria in ss 36(2)(a) or (aa) of the Act: see, eg, BCR16 at [90] and [96].

117    The appellant submitted that, as the primary judge found at [27]-[28], while the statement of reasons was silent on the possibility that the Minister would determine a future protection visa by the appellant, the Minister appeared to have contemplated that it was likely that any such application would be considered by the Department and not by himself personally. That in itself did not matter, because the error identified in BCR16 was about what would necessarily, as a matter of law, occur, not about the likely future course of events: see Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [73]. The Minister’s reasoning in this respect was said by the applicant to be indistinguishable from that impugned in BCR16: as the primary judge found at [29], the Minister made an unambiguous statement that non-refoulement obligations would be fully considered in the course of processing any future protection visa application.

118    The appellant submitted that the primary judge’s error was his acceptance, at [24], albeit “not without some hesitation”, of the Minister’s submission that the fact that Direction 75 did not bind him personally had no material consequence in the proceeding. This acceptance appeared to have been based upon the primary judge’s reasoning, at [29], that if the Minister made a decision personally about any future protection visa application made by the appellant, “the Minister would be obliged, in the context of making a determination under s 65 of the Act, to consider the relevance, if any, of Australia’s non-refoulement obligations in respect of the [appellant].” No authority was given by his Honour for this statement, and it ran contrary to the reasoning of the majority in BCR16. Accordingly, his Honour erred.

119    Similarly, the appellant submitted, the primary judge erred in finding, at [31], that if the Minister considered an application for a protection visa made by the appellant personally and did not have “due regard” to Australia’s non-refoulement obligations, the appellant would be entitled to challenge the decision by way of judicial review. Again, the appellant submitted, this ran contrary to the clear finding in BCR16 that the Minister could lawfully refuse a protection visa without making any assessment of non-refoulement obligations. Neither of the two decisions referred to at [31] by the primary judge (NKWF v Minister for Immigration and Border Protection [2018] FCA 409 and AQM18 v Minister for Immigration and Border Protection [2018] FCA 944) supported the proposition that refusal of a protection visa on character or security grounds without assessing non-refoulement obligations involved jurisdictional error or an error of law.

120    The appellant submitted the primary judge ought to have found that the Minister had fallen into jurisdictional error of the first kind identified in BCR16, namely a misunderstanding of law in assuming that non-refoulement obligations would necessarily, as a matter of law, be assessed in the course of any future protection visa application.

121    The Minister submitted that the appellant’s submissions that the Minister’s reasoning was indistinguishable from that impugned in BCR16, because the Minister made an unambiguous statement that non-refoulement obligations would be fully considered in the course of processing any future protection visa application, did not properly characterise either the reasons for decision of the Minister or the reasons for judgment of the primary judge.

122    The Minister submitted that, as the primary judge correctly observed at [22], the reasons given by the Minister in the present case “are expressed in significantly different terms from those in either BCR16 or BHA17.” Here, the Minister did not merely say, without more, that whether non-refoulement obligations were owed to the appellant “would be” considered in the context of making a decision on a valid application for a protection visa (at [80]); importantly, he went on to state, at [81], the reasons for that conclusion. Those reasons were, in the Minister’s submission, as follows:

•    First, the Minister’s “awareness” of his department (Department)’s “practice” to process applications for protection visas by considering the “protection-specific criteria” (that is to say, the non-refoulement criteria in s 36(2)) before any other criteria; and

•    Secondly, the fact that this practice is “reinforce[d]” by Direction 75, issued pursuant to s 499 of the Act, which requires decision-makers to assess whether a protection visa applicant is owed non-refoulement obligations before considering the other criteria for the grant of such a visa.

123    The making of Direction 75 was said to have caused the Minister to be “confident” that the appellant “would have the opportunity to have his protection claims fully assessed” in the event that he made a valid application for a protection visa: [81]. Far from evincing a misunderstanding of the law, the Minister’s reasons at [80]-[81], read as a whole, indicated that he considered it likely that any application for a protection visa would be considered by one of his delegates: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Minister submitted the primary judge was correct to characterise the Minister’s reasons in this way at [28]. There would otherwise be little, if any, utility in the Minister’s discussion of the effect of Direction 75. Nor would any contrary construction of his reasons sit comfortably with the use of the adverb, “[t]herefore”, in the final sentence in [81] shortly after the reference to “decision-makers” (relevantly, delegates) being required by Direction 75 first to assess a protection visa applicant’s non-refoulement claims before considering other criteria. Contrary to appellant’s submissions, it could not be ignored that it was, as the primary judge held, in the Minister’s contemplation that any future application for a protection visa would likely be determined by a delegate; rather, it suggested that the Minister did not make the assumption (as had been made in BCR16 and BHA17) that the appellant’s non-refoulement claims would, necessarily as a matter of law, be considered no matter who the decision-maker would be.

124    The Minister submitted that another available construction of his reasons was that he appreciated the possibility that, if he were to perform the duty in s 47(1) of the Act personally to consider any valid protection visa application, he might not consider the appellant’s non-refoulement claims, but that it was likely that he would do so. The Minister noted that the words “confident” and “opportunity” conveyed something less than certainty. On one view, they suggested that, if the Minister personally considered any application for a protection visa, it was likely that he would first turn his mind to the appellant’s non-refoulement claims, but they also left open the possibility that those claims might not be considered. The Minister did not, for example, say that if he were personally to determine any application for a protection visa, the law necessarily required him first to consider the appellant’s non-refoulement claims. Not even the final sentence in [80] of the Minister’s reasons went that far. Even if read in isolation, the Minister’s statement in that sentence did not reveal any wrong assumption as to the applicable law in the event that he considered an application for a protection visa.

125    The Minister submitted that, contrary to the appellant’s submission, the primary judge did not say at [29] that the structure of the legislation applicable to the determination of a valid application for a protection visa (relevantly, ss 46, 47 and 65 of the Act and criteria in Sch 2 to the Migration Regulations 1994 (Cth)) required the Minister personally to consider the relevance, if any, of Australia’s non-refoulement obligations owed to the appellant. It could be inferred that the primary judge was well aware of the effect of this Court’s judgment in BCR16, that Direction 75 did not bind the Minister personally, and that s 65 of the Act empowered him to make a decision on an application for a protection visa. The balance of the primary judge’s reasons at [29] shed light on what his Honour meant by the statement which the appellant sought to impugn in his submissions. There, relying on the judgment of the plurality in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [45]-[48], the primary judge reasoned that the “unequivocal statement” made by the Minister in the final sentence in [80] of his reasons “could have implications for procedural fairness requirements in the event that the statement was not honoured in the future and the applicant was not given a prior opportunity to comment upon the proposal not to [do so]”. Accordingly, the primary judge should be taken to be saying, in the second sentence at [29], that the Minister would be bound by, or “obliged” not to depart from, his earlier representation to the appellant that non-refoulement obligations would be considered if a valid application for a protection visa were made, unless notice were given to him that the Minister was proposing not to do so. It was not necessary for the purposes of this appeal, the Minister submitted, to determine whether the primary judge’s application of WZARH was apt in this context. At the very least, the Minister submitted, his Honour’s reasoning did not indicate that he misunderstood BCR16 or misconstrued the provisions of the Act.

126    Nor, the Minister submitted, contrary to the appellant’s submission, did the primary judge’s reasoning at [31] reveal error. The sentence which the appellant sought to impugn conveyed no more than the fact that if the Minister personally considered a valid application for a protection visa but did not have regard to Australia’s non-refoulement obligations, the appellant would be entitled to challenge that decision in judicial review proceedings instituted in this Court (provided that the decision met the description in s 476A(1)(c)) or in the Federal Circuit Court of Australia. The judgment of Moshinsky J in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944, to which the primary judge referred at [31], was one illustration of his Honour’s point. In that case, it was held that the Minister, in making a decision under s 501A(2) of the Act to refuse to grant a protection visa to the applicant, fell into jurisdictional error in that he misunderstood the legal consequences of his decision, being the operation of ss 197C and 198 of the Act.

127    The Minister submitted it might also be that the primary judge’s reasoning at [31] was shaped by what his Honour said in the preceding paragraph about the government’s policy not to remove from Australia a person to whom non-refoulement obligations were owed. Given the importance of appreciating the different stages of decision-making under the Act, the Minister submitted it was neither necessary, nor appropriate, to speculate as to the grounds of review that the appellant might advance in the event that he made a valid application for a protection visa and it were considered, and refused, by the Minister personally.

Claimed error in relying upon the stage of decision-making

128    The appellant next submitted that the second ground of judicial review before the primary judge, as recorded by the primary judge at [11], was that the Minister had wrongly assumed that the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing a future protection visa application. The primary judge, at [37], rejected this ground on the basis that it was “premature to speculate whether or not full consideration will be given to Australia’s non-refoulement obligations in respect of any future visa application by the [appellant]”. This statement referred back to earlier reasoning of the primary judge, at [31], to the effect that the Minister was not obliged to “take the matter any further than he did in his statement of reasons, having regard to the particular stage of decision-making with which the Minister was engaged”; the appellant also referred to the primary judge’s reasons at [35].

129    That reasoning, in turn, relied upon three recent first instance decisions in Ali v Minister for Immigration and Border Protection [2018] FCA 650; Greene v Assistant Minister for Home Affairs [2018] FCA 919; and Turay v Assistant Minister for Home Affairs [2018] FCA 1487.

130    The appellant submitted that this line of reasoning was in error and should not be endorsed by this Court.

131    The appellant referred to BCR16 at [48]-[50], where the majority discussed the qualitatively different exercise involved in a decision under s 501CA(4) of the Act compared to s 65 of the Act, and submitted that analysis applied equally to a decision under s 501BA(2) of the Act. He submitted that in the context of a s 501BA(2) assessment, the fact that Australia owed non-refoulement obligations in respect of the appellant, if established, may have real significance in the weighing of factors as to whether, in the national interest, the original decision should be set aside. However, if, as had occurred, non-refoulement was not considered and the original decision was set aside, it would avail the appellant nought in a protection visa application that Australia may owe non-refoulement obligations in respect of him. Irrespective of those matters, he was likely to be denied a protection visa, as he was likely not to satisfy (at least) the criterion in s 36(1C) of the Act: see BCR16 at [50].

132    The appellant submitted the majority in BCR16, at [73] and [96], identified the Minister’s failure to appreciate the different role which non-refoulement obligations might play in a s 501CA(4) assessment (or, by parity of reasoning, a s 501BA(2) assessment), and the role which they might play in the assessment of a protection visa application under s 65 of the Act, as a separate and distinct jurisdictional error (albeit not separately identified as one of the two articulated “misunderstandings”).

133    The appellant submitted the reasoning of the primary judge at [31], [35] and [37], and of the judges in Ali, Greene and Turay did not engage with, and could not be reconciled with, this aspect of the reasoning in BCR16. In fairness to the judges in Ali, Greene and Turay, it did not appear to the appellant that this aspect of BCR16 was drawn to their Honours’ attention. Nor, in fairness to the primary judge, was the point put precisely this way below.

134    The appellant submitted that, contrary to the reasoning of the primary judge at [37] and [39], this approach did not involve “speculation” as to what might or might not occur in future decision-making. What was at issue was whether the Minister’s state of satisfaction under s 501BA was reached on a correct understanding of the law. The Minister’s statement of reasons exposed no appreciation of the different role that non-refoulement obligations would play in a decision under s 65 of the Act on a future protection visa application, compared to the role they may play in relation to the exercise of discretion under s 501BA. Nor did Minister demonstrate any appreciation, in concluding that non-refoulement obligations “would be fully considered”, of the likelihood (not mere speculation) that a person in the position of the appellant, whose visa had been cancelled because the Minister has personally formed the view that the Australian community “should not tolerate any further risk of harm” arising from the appellant’s continued presence in Australia (statement of reasons at [100]) will not be granted a protection visa, even if non-refoulement obligations are found to be owed in respect of him.

135    The appellant submitted that to consign non-refoulement obligations as a matter to be considered only in the context of a protection visa application was likely to render them irrelevant and useless to the appellant. Such a course may well lead to refoulement or indefinite detention. That conclusion followed from the structure of the Act, in particular ss 36, 65, 189, 196, 197C and 198. The Minister’s failure to have regard to or appreciate these matters, in concluding that non-refoulement obligations “would be fully considered” in a future protection visa application by the appellant, amounted to jurisdictional error. The appellant submitted the primary judge erred in failing to so find.

136    The Minister submitted that this ground, seen in the light of the appellant’s present submissions, advanced a point that was not raised before the primary judge. This appeared to be accepted by the appellant. Without making any concession as to whether the point was sufficiently arguable, the Minister did not oppose a grant of leave.

137    The appellant’s argument, in the Minister’s submission, was that the primary judge made an appellable error in holding that the Minister’s decision was not based on an incorrect understanding of the law because, as Bromberg and Mortimer JJ held in BCR16 (at [49]), “s 65 involves a qualitatively different exercise” from “the discretionary exercise for which s 501CA(4) calls”, the latter permitting consideration of “the nature and quality of ... risks ... [that] are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa).”

138    The Minister submitted there were three difficulties with this ground.

139    First, it was not self-evident that a misunderstanding of the “national interest” in s 501BA(2)(b) was evidenced by the Minister’s having reasoned, as this Court should infer he did at [79]-[81], that non-refoulement obligations were best considered in the context of an application for a protection visa, where the very purpose of that visa is to provide safe haven to a non-citizen who feared serious harm or significant harm if returned to his or her receiving country.

140    The Minister submitted there was nothing in the text or context of s 501BA(2)(b) that required the Minister “to have regard to or appreciate” “the different role that non-refoulement obligations would play in a decision under s 65 of the Act on a future protection visa application, compared to the role they may play in relation to the exercise of discretion under s 501BA”, as submitted by the appellant. The effect of the appellant’s argument was that the Minister’s consideration of the “national interest” must involve an assessment of non-refoulement in the manner described by the majority in BCR16 at [49], [73] and [96]. The difficulty with this argument, however, the Minister submitted, was that it betrayed the language of s 501BA(2)(b), which did not provide that the Minister must have regard to considerations of the kind discussed in BCR16 when deciding whether cancellation of a visa was in the national interest. If the appellant was arguing that non-refoulement (in the sense described in BCR16) should be implied in s 501BA(2)(b) as a mandatory relevant consideration, he had not demonstrated, in the manner required by law, that the subject matter, scope and purpose of the Act, which relevantly provides for a regime for the Minister personally to exercise a discretionary power to cancel visas in the national interest, compelled that implication. Indeed, the fact that the national interest was a broad, evaluative concept militated against any such implication. Acceptance of the appellant’s argument would also have the curious consequence that the Minister would be required personally to have regard to whether Australia owed non­refoulement obligations to the appellant in the context of assessing where the national interest lay in exercising the power in s 501BA(2), before they were considered again in the context of an application for a protection visa.

141    Second, the Minister submitted, the appellant’s reliance on BCR16 in the present case was misplaced and inconsistent with a series of judgments of Full Courts, including for example: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [10]-[30] per Flick, Griffiths and Perry JJ; AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 at [69]-[70] per Allsop CJ, Robertson and Griffiths JJ; Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 at [41]-[65] per Allsop CJ, Griffiths and Wigney JJ.

142    Those cases supported the proposition that, if a non-citizen has had a visa refused or cancelled, but he or she may subsequently make a valid application for a protection visa, the immediate legal consequences of the decision (to which the Minister was required to have regard) did not include refoulement, contrary what appeared to be suggested by the use in the appellant’s submissions of the words “may well lead”. The majority in BCR16 neither purported to cast doubt upon, nor to overrule, any of these cases. The reasoning in these cases, the Minister submitted, applied equally to s 501BA(2). Accordingly, the Minister was not required to consider, in the exercise of his power in s 501BA(2), whether Australia owed non- refoulement obligations to the appellant.

143    Third, the Minister submitted, the cases upon which the primary judge relied in rejecting these grounds below at [31]-[37] emphasised the importance of the different stages of decision-making under the Act much like the Full Court authorities just referred to. As the primary judge correctly observed at [35], they recognised “the need to avoid speculation as to what might or might not occur in future decision-making” when considering an application for judicial review of a decision made under, relevantly, s 501BA(2) of the Act.

144    The Minister submitted that certain matters raised by the appellant in this aspect of his submissions were inconsistent with the approach taken in each of the cases cited by the primary judge. Whether the appellant was or was not likely to be successful, if a valid application for a protection visa were to be made (as the Minister considered could be made at [79] of his reasons), was not to the point. It certainly did not supply a sufficient basis to read into s 501BA(2) of the Act a duty on the part of the Minister to assess whether the appellant was somebody to whom Australia owed protection obligations.

145    In any event, the Minister submitted, contrary to the appellant’s submissions, it was not necessarily the case that any application for a protection visa would be refused. It might be, for example, that a different decision maker, at some unspecified time in the future, based on circumstances which may well differ from those confronting the Minister in February 2018, would determine that the appellant met the criteria in s 36(1C). Accordingly, it could not be said that the Minister’s not having had regard to non-refoulement at the time of exercising the discretionary power in s 501BA(2) “will avail the appellant nought in a protection visa application that Australia may owe non-refoulement obligations in respect of him” or “is likely to render [non­refoulement] irrelevant and useless” (as submitted by the appellant).

146    While judgment was reserved, on 14 March 2019 the Court granted the parties leave to file short written submissions on two recent judgments: Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 and Omar v Minister for Home Affairs [2019] FCA 279. Those submissions were provided on 21 March 2019.

147    The appellant submitted that Omar directly supported his case: the relevant misunderstandings in that case were based upon the same passages of BCR16 on which the appellant relied, being BCR16 at [48]-[52], [73] and [96]. In the judgment in Omar, Mortimer J summarised those passages as identifying “the different role that consideration of non-refoulement obligations might play in the exercise of a discretionary power (such as s 501CA(4)), compared to their role as, in effect, incidents of one criterion (the ‘protection criterion’) in the requirements for the grant of a protection visa”. The ratio of Omar, the appellant submitted, was equally applicable to a decision under s 501BA(2).

148    The Minister submitted that the judgment in Omar was distinguishable as that case involved the Minister, in the exercise of power under s 501CA(4)(b)(ii), failing “to engage with representations made by the applicant about ‘another reason’ put forward by [him] as to why the cancellation decision should be revoked” (at [13]). Those representations canvassed non-refoulement (at [17], [35]-[39], [50]) but the Minister did not have regard to them for the reason that they were likely to be considered, in accordance with Direction 75, in the course of deciding a valid protection visa application (at [18]). Her Honour held that such reasoning involved jurisdictional error, in that the Minister was required to, but did not, consider the applicant’s representations as to non-refoulement being a reason why the power in s 501CA(4)(b)(ii) should be exercised in his favour in order to perform the statutory task required by that provision (at [27], [34], [46], [48], [50], [59] (penultimate sentence), [78] (penultimate sentence), [81], [82] (final sentence)). The Minister submitted that the present case was very different. It did not involve any question as to whether, in exercising the power under s 501BA(2), the Minister was required to consider whether Australia owed protection obligations to the appellant. Indeed, such an argument was expressly disavowed by the appellant at the hearing. Nor, unlike Omar, did the present case involve the appellant having made submissions to the Minister to the effect that, in exercising his power under s 501BA(2), he should have regard to non-refoulement. The lawful exercise of that power did not require the Minister to describe the differences that non-refoulement might play in that context compared with their role in deciding a protection visa application under s 65(1).

149    The appellant submitted that the decision in Ezegbe was not on point. Nowhere in that case, the appellant submitted, did the Court address or reject the submissions made on this appeal.

150    The Minister submitted that parts of the reasoning in Ezegbe were applicable to grounds 1(d), 2(b) and (c)(ii) in the appellant’s notice of appeal. In relation to those grounds, it was put by the appellant in writing that the Minister did not “demonstrate any appreciation” of the “likelihood” that a person in the appellant’s position, in respect of whom the Minister had concluded the Australian community should not tolerate any further risk of harm, “will not be granted a protection visa”. Submissions to the same effect were made by the appellant at the hearing. The Minister submitted that the applicant in Ezegbe made the same submissions, albeit in the context of the exercise of power under s 501CA(4). In Ezegbe, Perram J concluded, at [25], that the fact that “the Minister’s reasons do not disclose an awareness on his part that any application for a protection visa faced a real risk of being refused on character grounds under s 36(1C)(b)” did not involve a jurisdictional error, and in this respect the Minister referred also to Ezgebe at [26].

Proposed ground 3

151    Turning to the failure to make the decision within a reasonable time ground, the appellant submitted the Court should permit the appellant to raise this point on appeal, notwithstanding that it was not raised before the primary judge. An appellate court may permit a point of law to be raised before it for the first time upon facts which were admitted or proved beyond controversy, where it is expedient in the interests of justice to do so: Suttor v Gondowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497. Such a point may not be taken where evidence could have been led in the court below which could have prevented the point from succeeding. But this was not such a case. The appellant relied upon one uncontroversial factual matter: the exercise of power under s 501BA nearly 15 months after the appellant had been released into the community. No evidence to explain the delay could have been given which would have rendered the delay reasonable. The unreasonableness arose because of the impact such a delayed decision would have on the appellant (and other visa holders); it did not turn upon the diligence or otherwise of the Minister or his subordinates.

152    The appellant submitted that there was no express stipulation as to the time within which the Minister’s power under s 501BA of the Act is to be exercised. That being so, the appellant submitted it was implied that the power was to be exercised within a reasonable time of the original decision: see Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 4; 255 CLR 179 at [37]; Koon Wing Lau v Calwell [1949] HCA 65; 80 CLR 533 at 573-574 per Dixon J. Such an implication was made notwithstanding that there is no duty upon the Minister to exercise the power under s 501BA: cf Koon Wing Lau.

153    The appellant submitted that what was a reasonable time will depend upon the facts: Koon Wing Lau at 574. The test was whether there were circumstances which a reasonable person might consider render the delay justified and not capricious: ASP15 v Commonwealth of Australia [2016] FCAFC 145; 248 FCR 372 at [21].

154    Because the time limit was implied as a matter of statutory construction, what was reasonable will be informed by the purpose and scheme of the relevant legislation: BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [23]-[24].

155    Applying these principles, the appellant submitted, it was plain that the delay in making the decision under s 501BA in the present case was unreasonable. The purpose of the Act, relevantly, was to regulate, in the national interest, the presence in Australia of non-citizens: s 4(1). To that end, the Act prescribed a scheme by which non-citizens may be granted and enjoy the benefit of permission to remain in Australia, in the form of a visa: s 4(2). The appellant’s visa was a permanent visa by which the appellant enjoyed a range of benefits and entitlements (see BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 at [27]). Possession of a permanent visa to remain in Australia allows a non-citizen to plan for a life in Australia and to make life decisions accordingly.

156    The appellant submitted that ss 501(3A) and 501CA of the Act set out a regime whereby visa holders serving a full time sentence of imprisonment of 12 months or more will face automatic cancellation of their visa. However, they have an opportunity to pursue revocation of the cancellation. The intention is that the person will move from criminal custody straight to immigration detention while revocation is pursued: Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [49]. The Act required promptitude in the giving of notice to a person that their visa has been cancelled (s 501CA(3)); in the making of an application to revoke the cancellation (s 501CA(4) and Migration Regulations reg 2.52(2)(b)); in the making of an application to the AAT for review (s 500(6B)); and in the making of a decision by the AAT (s 500(6L)).

157    The power under s 501BA(2) was enlivened only where there had been a favourable decision by either a delegate of the Minister or the AAT to revoke a cancellation. Such a decision would ordinarily result in the release of a visa holder from immigration detention into the community. The decision was not subject to the rules of natural justice and was not subject to merits review: ss 501BA(3), 501BA(5).

158    The appellant submitted that what was a “reasonable period of time” in relation to such a decision must take into account that a visa holder with respect to whom the decision was made was very likely to have recently spent a period of time in immigration detention, following an additional period of time in full time imprisonment, but to have since been released. The person would, no doubt, have resumed making the usual life plans on the basis that their visa has been restored to them and that they are permitted to remain in Australia.

159    The appellant submitted that a delay of, in the present case, nearly 15 months from the time of the AAT decision to the Minister’s decision (and a further delay of 6 weeks until the appellant was notified of the decision) cannot be regarded as reasonable. A reasonable person would regard such a delay as unjustified and capricious, having regard to the prejudicial impact of the delay on the appellant. A reasonable person in the position of the appellant would expect, more than 12 months after the AAT decision, that their visa position was secure.

160    In relation to ground 3, in respect of which the appellant require leave, the Minister submitted that leave should be refused. First, the Minister submitted, the ground was misconceived and did not have sufficient prospects of success to warrant the grant of leave. Unlike the legislation under consideration in Koon Wing Lau, the Minister submitted, the words “upon” or “until” did not appear anywhere in s 501BA. And unlike s 7(1)(a) of the War­time Refugees Removal Act 1949 (Cth), which required the Minister to perform an act within a particular time, the Minister was not required to consider the exercise of the power in s 501BA and the exercise of that power cannot be compelled by the issue of a writ of mandamus. Moreover, by force of s 501BA(3), and unlike the legislation in Koon Wing Lau, the Minister was not obliged to afford procedural fairness to a person the subject of a decision made under s 501BA(2). Koon Wing Lau did not support the bald propositions that “it is implied that the power [in s 501BA] is to be exercised within a reasonable time of the original decision [under s 501CA]” or that “[s]uch an implication is made notwithstanding that there is no duty upon the Minister to exercise the power under s 501BA”. As Moshinsky J observed in AQM18 at [64] and [69], the principle derived from cases such as Koon Wing Lau (and applied in Plaintiff S297) was apt in cases where a public duty remained unperformed after a reasonable period of time had elapsed. That was not the present case. Accordingly, the Minister submitted, the appellant was unable to establish that the exercise of the discretionary power in s 501BA(2) was conditioned by a requirement that it be performed within a reasonable time of a decision made under s 501CA(4).

161    Second, the Minister submitted, the proposed ground was not sufficient to attract the relief sought by the appellant in his notice of appeal. Plaintiff S297 established that the appropriate remedy where a statutory duty had not been performed within a reasonable time was a writ of mandamus. Even assuming that a writ of mandamus could issue to compel the Minister to make a decision under s 501BA(2), it would be futile to grant relief in the present case as a decision had been made.

162    Third, the Minister submitted, it was not at all self-evident that the passage of 15 months between the date of the AAT’s decision and the date of the Minister’s decision in and of itself amounted to unreasonable delay. What was reasonable was, in part, a question of fact the answer to which would depend on the circumstances of the case. Had the point, which the appellant now sought to take, been raised below, the Minister could have adduced evidence to show what steps were taken in the period between the decisions of the Tribunal and the Minister. That, alone, was a compelling reason to refuse to grant leave to the appellant.

163    Fourth, the Minister submitted, no explanation, let alone an adequate one, had been provided by the appellant, by way of affidavit, as to the reasons why this ground was not advanced below. The appellant was represented by solicitors and counsel before the primary judge and had amended his originating application on 27 July 2018. The point could have been, but was not, taken at least at that time. In the event that leave was granted, the Minister sought an opportunity to adduce evidence, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), to meet this ground before it was determined.

Consideration

The non­refoulement grounds

Claimed error in relation to an obligation to consider non-refoulement on any future protection visa application

164    I turn first to consider the ground that the primary judge erred in concluding that the Minister had not made a jurisdictional error in relation to an obligation to consider non-refoulement as part of any future application by the appellant for a protection visa.

165    In my opinion, in the relevant part of his reasons, the Minister was not setting out a legal proposition but looking to what would in fact be the future course of decision-making if the appellant made a valid application for a protection visa.

166    I would therefore reject the appellant’s proposition that the Minister erred in assuming that non-refoulement obligations would necessarily, as a matter of law, be assessed in the course of any future protection visa application.

167    While I accept that Direction 75 does not bind the Minister, and does bind other decision-makers addressing the question of whether or not to grant a protection visa, I do not see that as establishing error. Although in the case of a decision by the Minister there would be nothing in the legislation or in Direction 75 to require the Minister first to assess whether the refugee and complementary protection criteria are met, the appellant has not established that the Minister would be likely to make such a decision personally.

168    The appellant appears to accept that the Minister made no jurisdictional error if as a matter of fact any future application for a protection visa is to be decided by persons other than the Minister, such as by officers of the Department.

169    Since I have concluded that the Minister, at [80]-[81] of his reasons, was not setting out a legal proposition but a factual proposition as to the future if a protection visa application was made by the appellant, in my opinion it would be for the appellant at trial to show both that it was likely the Minister personally would make a decision on the protection visa application and that as a matter of fact the Minister would not consider the application of the protection specific criteria before proceeding with any consideration of other criteria. The appellant has not done this.

170    In BCR16, the Assistant Minister said no more than that the appellant was able to make a valid application for another visa: “Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the appellant] for the purposes of this decision.”

171    The majority accepted the submission on behalf of the appellant that at the time of the decision in that case there was nothing in the Act or in the Migration Regulations which governed the manner in which the Minister or the Minister’s delegates were required to consider whether the criteria for a protection visa were satisfied for the purposes of the task in s 65 of the Act. The logical consequence, the majority accepted, was that the Minister and the Minister’s delegates were free to decide the manner in which a protection visa application would be considered, the steps taken in that consideration, and the order in which criteria for a protection visa would be evaluated: see the reasons for judgment at [36]-[37].

172    In the present case, in my opinion, the circumstances were different, both in terms of what the Minister as decision-maker said and the procedures shown to apply to the assessment of any future protection visa application lodged by the appellant.

173    This ground therefore fails.

Claimed error in relying upon the stage of decision-making

174    In my opinion, the articulation of this point as the primary judge erring, at [11], in failing to find jurisdictional error on the part of the Minister in finding that the existence or otherwise of non-refoulement obligations would be fully considered if the appellant made a protection visa application is not sustainable. There is no reason to doubt that those obligations would then be considered and considered fully.

175    The appellant’s real point of substance is a different one. It is that the consideration of whether or not Australia has non-refoulement obligations in respect of the appellant should be considered in the exercise of the Minister’s discretion under s 501BA as in those circumstances it may have real significance in the weighing of factors as to whether the original decision should be set aside. That consideration may have no ultimate significance in terms of the grant of a protection visa. An illustration of that point is the appellant’s submission that, if applied for, a protection visa would be likely to be refused because, as stated in s 36(1C)(b) of the Act, a criterion for a protection visa is that the applicant is not a person to whom the Minister considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. By s 5M, the reference to a particularly serious crime includes a reference to a crime that consists of the commission of a serious Australian offence.

176    In my opinion, therefore, the appellant’s complaint is as to the consequences for him of a cancellation of a visa by the Minister under s 501BA on the one hand coupled with, on the other hand, the possible non-grant of a protection visa, if applied for, even though it may be established at such a time that Australia has non-refoulement obligations to the appellant.

177    I would also assume that the appellant’s point is not, contrary to the reference to the national interest in his written submissions, limited to the Minister’s satisfaction as to the national interest but goes also to the discretion s 501BA(2) confers on the Minister, which may be exercised so as not to set aside the original decision and cancel a visa even where he is satisfied that the person does not pass the character test and that the cancellation is in the national interest.

178    It is worth noting what is not involved in this claimed error on the part of the Minister.

179    To be put to one side is any reliance on procedural fairness since s 501BA(3) provides that the rules of natural justice do not apply to a decision under s 501BA(2).

180    Neither would the issue seemed to be about mandatory relevant considerations: see BCR16 at [61]. The appellant expressly disclaimed reliance on mandatory relevant considerations. It would, I think, be difficult to characterise as a mandatory relevant consideration in the exercise of the Minister’s power under s 501BA(2) what may happen to the appellant if he were to apply for a protection visa and that protection visa were refused.

181    Nor is this claimed error the same as that made out in BCR16. That was a case where the majority held, at [67], that the Minister had incorrectly understood the law in considering that non-refoulement obligations would necessarily be considered in the event that the appellant was to make an application for a protection visa, when this was not the case. As I have explained, the Minister did not make that error in this case. I would therefore not conclude on that basis that the Minister has failed to carry out the task required of him by s 501BA(2): compare BCR16 at [63].

182    I do not accept the appellant’s submission that the Minister erred in the exercise of his discretion under s 501BA(2) in stating that non-refoulement obligations would be fully considered in a future protection visa application because he did not have a correct understanding of the law. That incorrect understanding was said to be in two respects, on the appellant’s submission. First, the Minister was said to have misunderstood the different role that non-refoulement obligations would play in any decision under s 65 compared to the role they may play in relation to the exercise of discretion under s 501BA. Second, the Minister was said to have failed to appreciate that the appellant was likely not to be granted a protection visa even if non-refoulement obligations were found to be owed in respect of him because of the Minister’s present finding, in his reasons for decision at [100], that the Australian community “should not tolerate any further risk of harm” in respect of the appellant.

183    In my opinion, the appropriate analysis in the present case involves an appreciation that the Minister did not say, at [80]-[81], that he was refusing to take into account in the exercise of the power under s 501BA(2) that the appellant claimed he would face harm. Indeed, at [82], the Minister said that he accepted that regardless of whether the appellant’s claims were such as to engage non-refoulement obligations, the appellant would face hardship arising from his stated homosexuality were he to return to Bangladesh. This was in the context where, at [75]-[78], the Minister had noted the appellant’s earlier submission that he would face harm if returned to Bangladesh and the Minister had noted the appellant’s visa history, including the grant of a Class XA subclass 785 Temporary Protection visa on 16 November 2006 due to his stated homosexuality. The Minister also noted that the appellant had said that his life would be in “very real danger” if he returned to Bangladesh. This was the harm and hardship which the Minister addressed at [82].

184    If the Minister had not addressed that matter, my view would have been that the Minister may well have failed to complete his statutory task and thereby made a jurisdictional error of a similar, although not identical, kind to that considered in BCR16.

185    In circumstances where the decision maker has assessed the prospect that the person in question is likely to apply for a protection visa and there is no impediment to that person doing so, that assumption not being the subject of any dispute in the present appeal, I do not regard the references to non-refoulement obligations as demonstrating an incorrect understanding of the law. In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand.

186    In my opinion this distinction is not accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found by the Minister in the present case need not be considered in making a decision under s 501BA(2).

187    The distinction I have described finds support in, and is consistent with, the reasoning in cases raised by the parties.

188    Although the facts and statutory context in Ezegbe were different to the present case, the dispositive reasoning, at [28], is not dissimilar to the reasoning which I consider to be applicable. The conclusion in that case was that by simply refusing to deal with any of the issues about what would happen to Mr Ezegbe if he were returned to Nigeria, the Minister had failed to exercise the power. This was because part of the case Mr Ezegbe had been putting to the Minister in his representations under s 501CA(4) for why his visa should not be cancelled was the fact that he would be harmed if returned to Nigeria. In the present case, the issue of harm arose on the facts found to exist by the Minister. As I have explained, if the Minister had failed to consider that issue, he may have fallen into jurisdictional error.

189    In Omar the ground that was upheld was that the Assistant Minister failed to carry out his statutory task under s 501CA because he failed to engage with representations made by the applicant about “another reason” put forward by the applicant as to why the cancellation decision should be revoked. The Assistant Minister relevantly did not do this on the basis of what was referred to as the first misunderstanding, identified at [27], being that the application of Direction 75 to any decision-making process under s 65 when a protection visa application is made “is not a substitute for consideration of non-refoulement under section 501CA”. The reasoning at [46], that under s 501CA(4) the Assistant Minister was not authorised to simply carve out aspects of the representations made and particular “reasons” advanced, and decline to deal with them, would apply, mutatis mutandis, in other circumstances to those of the present appeal in respect of decision-making under s 501BA, as I have endeavoured to explain.

190    As to those parts of BCR16 referred to in Omar, it will be recalled that both cases concerned a decision under s 501CA(4), where different considerations may arise stemming from the place of representations by the visa applicant under that section, and that the discretion to revoke arises, on the common alternative where passing the character test is not in issue, where the Minister is satisfied that there is “another reason why the original decision should be revoked”: see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13. Thus in Omar, the nature and content of submissions made to the Minister on behalf of the applicant was one of the matters which contributed to Mortimer J’s conclusion.

191    In my opinion, what was said by the majority in BCR16 at the passages relied on by the present appellant, [48]-[52], [73] and [96], stems from the fact, as found by their Honours at [15], that the only paragraph that dealt with the appellant’s claims of harm was the paragraph in the reasons of the Assistant Minister saying that it was unnecessary to determine whether non-refoulement obligations were owed for the purposes of the decision under s 501CA(4). Indeed, the analysis by the majority at [73] focused on the Minister’s failure to consider the risk of serious or significant harm (rather than the characterisation of that risk as engaging non-refoulement obligations or not), noting that the kind of harm identified by the appellant was not restricted to harm as that concept was understood in either set of domestic protection obligations, or in either kind of international non-refoulement obligations.

192    In Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 362 ALR 9, where also the relevant decision was made by the Assistant Minister under s 501CA(4), the Full Court rejected, at [87], the contention of the Minister that the decision of the Full Court in BCR16 was plainly wrong. In part this turned on issues relating to the characterisation of the Assistant Minister’s reasons. What was there referred to as the ‘first misunderstanding’ was an assumption by the Assistant Minister that non-refoulement obligations would necessarily be considered in the event that the appellant made a protection visa application. A similar assumption was made in BHA17. The Full Court, at [80], did not reach a concluded view in relation to the ‘second misunderstanding’ identified by the majority in BCR16.

193    While I accept the appellant’s submission that the role that non-refoulement obligations might play in a protection visa application is very different to the role they might play in a s 501BA determination, I do not accept the premise that it is a jurisdictional error in all circumstances for the Minister to reason that whether non-refoulement obligations are owed will be fully considered in the course of processing an application for a valid protection visa which the applicant is able to make. In particular, it does not disclose jurisdictional error in the present case, in circumstances where the Minister accepted that the appellant would face hardship if returned to Bangladesh – the factual basis said to engage non-refoulement obligations – and took that hardship into account.

194    This ground fails.

Proposed ground 3

195    The Court refused leave to the appellant to rely on his proposed ground 3. The proposed ground was not a pure question of law but one where the Minister reasonably said that he would have wished to adduce evidence before the primary judge if this proposed point had been taken there. That was a sufficient basis on which to refuse leave. Even the reasonable person posited by the appellant would need to have the full facts before concluding whether or not there was unreasonable delay. The Court also noted that there was no explanation of the circumstances in which the point was not taken before the primary judge, when the appellant was represented by solicitors and counsel.

Conclusion and orders

196    In my opinion, the appeal should be dismissed with costs.

197    I express my gratitude to counsel for the appellant who appeared pro bono on a referral certificate issued by the Court.

Associate:

Dated:    18 April 2019