FEDERAL COURT OF AUSTRALIA

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The Orders of the Federal Court made on 24 October 2018 in SAD94/2018 be set aside.

3.    A writ of certiorari be issued quashing the decision of the Assistant Minister for Home Affairs made on 26 February 2018 to cancel the Appellant’s Class BC (Subclass 100) Partner (Migrant) visa.

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

REASONS FOR JUDGMENT

THE COURT:

1    On 24 October 2018, a Judge of this Court dismissed the appellant’s application for judicial review of a decision made by the Assistant Minister for Home Affairs under s 501BA(2) of the Migration Act 1958 (Cth) (the Act) to cancel the appellant’s visa: Ibrahim v Minister for Home Affairs [2018] FCA 1592. The appellant now appeals against that decision.

Background circumstances

2    The appellant is a national of Nigeria. He came to Australia on 1 May 2008 as the holder of a Class UF Subclass 30 Partner (Provisional) visa and has been here ever since. He had also been in Australia for short periods in 2006 and 2007, but they are not material for present purposes. On 5 January 2009, the appellant was granted a Class BC Subclass 100 Partner (Migrant) visa.

3    On 17 July 2015, while the appellant was in custody serving a sentence imposed on 17 December 2014, a delegate of the Minister cancelled his visa, pursuant to s 501(3A) of the Act. We will refer to this as the “Cancellation Decision”. However, on 25 August 2016, another delegate of the Minister, acting under s 501CA(4) of the Act, revoked the Cancellation Decision (the Revocation Decision).

4    Subsequently, on 23 May 2017, the then Assistant Minister for Immigration and Border Protection set aside the Revocation Decision and cancelled the appellant’s visa. The Assistant Minister did so pursuant to s 501BA(2) of the Act.

5    On 13 October 2017, this Court made orders quashing the decision of the then Assistant Minister made on 23 May 2017: Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218 (Ibrahim No 2).

6    The Assistant Minister for Home Affairs then considered again the exercise of the power under s 501BA(2) to set aside the revocation of the Cancellation Decision. On 26 February 2018, he made a decision to do so and to cancel the appellant’s visa. It is that decision which is the genesis of the present appeal.

7    The Assistant Minister cancelled the appellant’s visa because he was satisfied that the appellant did not satisfy the character test (by reason of having a “substantial criminal record” as defined in s 501(6)(a) and s 501(7)(c) of the Act) and because he considered that the cancellation was in the national interest. It was common ground that the appellant does have a “substantial criminal record” as the Assistant Minister had found.

8    In the proceedings at first instance, the appellant submitted that two distinct matters meant that the Minister’s decision was affected by jurisdictional error. Both grounds rested on the principle that, as the power of a Minister to set aside a revocation order and to cancel a visa depended on the Minister being satisfied of the matters specified in s 501BA(2), his state of mind had to be formed on a correct understanding of the law and of the legal consequences of his decision. The appellant contended that the Assistant Minister had not had such a correct understanding.

9    The two grounds each involved two parts. It is not necessary to recount those grounds in full, or the way in which the primary Judge dealt with all of them, because, on the appeal, the appellant advanced a more confined position.

10    In addition, the appellant sought leave to advance on the appeal a ground which he had not argued before the primary Judge. As counsel for the Minister did not oppose the Court hearing full argument on the proposed Ground and determining the application for the grant of leave as part of its substantive decision, the Court has adopted that course. We will address the substance of Ground 3 and the grant of leave later in these reasons.

The statutory provisions

11    The provisions in the Act pursuant to which the actions summarised above were taken are as follows:

501 Refusal or cancellation of visa on character grounds

…

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

(3)    The Minister may:

  (a)    refuse to grant a visa to a person; or

  (b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(3A)    The Minister must cancel a visa that has been granted to a person if:

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

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

(3B)    Subsection (3A) does not limit subsections (2) and (3).

…

(5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

…

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.

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

…

12    As is apparent, s 501 vests power in the Minister to cancel a visa in three circumstances and, in the third (s 501(3A)), the exercise of the power is mandatory. Section 501CA allows a person whose visa has been cancelled under s 501(3A) to make representations that the cancellation be revoked. If a visa cancellation is revoked under s 501CA, the Minister has power under s 501BA to set aside that revocation and to cancel the visa. The rules of natural justice do not apply to decisions under s 501(3) and (3A) and under s 501BA(2).

13    The rules of natural justice are obligations which are imposed, on a proper construction of the empowering statute, on decision-makers and are entitlements vested in the persons whose rights and interests are affected by that decision. Their content in a given case is to be determined by construing the statute in question: R v MacKellar; ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 at 475; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 594 Wilson J, at 614 (Brennan J) and at 633 (Deane J). In this case, it is the requirement to hear the affected person before the decision is made which is pertinent.

No opportunity to be heard

14    It was common ground that the appellant had not been given any notice after this Court’s decision on 13 October 2017 that the Assistant Minister was again considering the exercise of the power under s 501BA(2) to set aside the revocation of the Cancellation Decision. It was also common ground that the appellant had not in fact made any further submissions.

15    At the first instance hearing, the appellant tendered an affidavit of Ms Raelene Ibrahim affirmed on 15 June 2018. Ms Ibrahim had married the appellant on 8 January 2018. The Assistant Minister seems to have been unaware of the marriage as he referred to Ms Ibrahim as the appellant’s “girlfriend” and said that, other than being the father of three children with his former wife, there was no indication that the appellant had any immediate family in Australia. In her affidavit, Ms Ibrahim set out matters which she and the appellant would have advanced to the Assistant Minister had they been given the opportunity to do so. Those matters included the couple’s plans to have children and an explanation of some of the appellant’s criminal conduct. Plainly, the matters to which Ms Ibrahim deposed were pertinent to the Assistant Minister’s decision.

Ground 1

16    By this ground, the appellant contends that the Assistant Minister had proceeded on an incorrect understanding of the Act because he had thought that the effect of s 501BA(3) was that he could not afford natural justice to him, and not just that he was not required to do so. Counsel submitted that the Assistant Minister had not appreciated that it was open to him to have allowed the appellant the opportunity to make submissions concerning the exercise of the power under s 501BA(2) and that misunderstanding gave rise to jurisdictional error.

17    The material from the appellant to which the Assistant Minister referred, when making his decision on 26 February 2018, was the same material which had been provided in September 2015, some two years and five months previously, when the appellant was seeking the revocation of the Cancellation Decision.

The reasons of the primary Judge

18    The primary Judge rejected the submission to this effect at first instance. His Honour was not satisfied that the Assistant Minister had been bound to consider providing natural justice to the appellant and, further, that even if the Assistant Minister had thought that he was bound by the Act not to accord natural justice, that could not constitute a jurisdictional error as a constructive failure to exercise jurisdiction. The Judge’s reasoning appears in the following passage:

[42]    The nature and extent of any power the Assistant Minister might have to invite further submissions was not the subject of detailed submissions and I was not referred to any authorities directly on point. I am not disposed to think that it is a discretion, as submitted by Mr Ibrahim, as distinct from a course he may choose to take in particular circumstances. Perhaps that is what the Assistant Minister meant when he submitted that it was, at best, a capacity. At all events, I do not think that it was a course that he was bound to consider. In those circumstances, I fail to see how, even if he proceeded on the basis that he was bound not to accord natural justice, that could constitute a jurisdictional error as a constructive failure to exercise jurisdiction.

(Emphasis added)

19    Given this conclusion, it was not necessary for the Judge to decide whether the Assistant Minister had in fact had the misapprehension for which the appellant contended. However, his Honour did say that he was “disposed to think” that the Assistant Minister’s reasons indicated that he had thought that he had no power to accord natural justice to the appellant or to invite him to make submissions:

[43]    For the sake of completeness, I will address the contentions of the parties as to what inference should be drawn from the Assistant Minister’s reasons. The reasons suggest that he either did not bring any power he had to mind, whether it be a discretion as Mr Ibrahim characterised it or, at best, a capacity as the Assistant Minister characterised it, or he considered he had no power to accord natural justice or to invite Mr Ibrahim to make submissions. For the reasons advanced by Mr Ibrahim and summarised above (at [40]), I am disposed to think that the latter alternative is the conclusion which should be drawn. However, that does not assist Mr Ibrahim for the reason I have given.

20    The primary Judge applied the same reasoning in his later decision of Burgess v Assistant Minister for Home Affairs [2019] FCA 34, albeit in relation to different statutory provisions.

The construction of s 501BA(2)

21    An initial question is whether s 501BA(3) does have the effect for which the appellant contends. That was that, while s 501BA(3) does not require the Minister to conform with the rules of natural justice, it does not preclude the Minister from doing so. In particular, s 503BA(3) had not precluded the Assistant Minister from inviting the appellant to make a submission before considering the exercise of the power in s 501BA(2).

22    As already noted, ss 501BA(3) and 501(5) stand in contrast with s 501CA(3). While s 501CA(3) requires that a person who may be the subject of an order under that section be given the opportunity to make representations to the Minister, each of ss 501BA(3) and 501(5) provide expressly that the rules of natural justice do not apply to the decisions to which they refer.

23    However, on its face, the effect of s 501BA(3) is only to remove any obligation on the Minister to apply the rules of natural justice when making a decision under subs (2). It does not oblige the Minister to make the decision without applying those rules.

24    Counsel for the Minister did not dispute that the Assistant Minister had had the power to invite the appellant to make submissions. She characterised the power as an “extra-statutory capacity” because s 501BA did not provide for it expressly. That being so, it was not a matter which required consideration in assessing whether there had been a constructive failure in the exercise of the s 501BA(2) power.

25    Counsel for the appellant sought to characterise the Minister’s ability to afford him natural justice as a discretion.

26    We are inclined to think that the appellant’s characterisation is inappropriate, as it tends to equate the power with an express statutory discretion. Instead, it is simply an incident of the power vested in the Minister by s 501BA(2). That being so, it is not “extra-statutory”. Section 501BA(3) is to be understood as removing any obligation on the Minister to afford natural justice when exercising the power under s 501BA(2), but not as prohibiting the Minister from doing so. It is for the Minister to decide, within the limits of the Act, how he or she will go about making the decision contemplated by s 501BA(2). Just as the Assistant Minister had had the power to seek more information from the Department before making his decision, so also did he have the power to seek information from the appellant.

Did the Assistant Minister misunderstand the position?

27    As noted earlier, the primary Judge was inclined to think that the Assistant Minister had misunderstood his power.

28    During the hearing of the appeal, the Court granted the Minister leave to file a Notice of Contention to the effect that the Assistant Minister’s reasons, fairly considered, did not reveal an understanding that he had been bound not to afford the appellant natural justice. The Minister had made the same submission to the primary Judge, and there was no prejudice to the appellant in the grant of leave.

29    In their competing submissions on this issue, both the appellant and the Minister referred to the following passages in the Assistant Minister’s reasons:

[10]    Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). This means Mr IBRAHIM has not been advised that consideration was being given to his visa being cancelled and therefore he has not been given any opportunity to make representations regarding the possible cancellation of his visa, including the impact an adverse decision would have on him and third parties.

[11]    I am also cognisant that as a consequence of my decision to proceed under s501BA(2) without natural justice to Mr IBRAHIM, there is no revocation power to ameliorate the lack of natural justice in the decision and therefore Mr IBRAHIM will not at any stage be given an opportunity to make representations in relation to my decision.

[12]    I have also had regard to the fact that Mr IBRAHIM will not have access to merits review in relation to my decision.

[13]    I have carefully weighed these matters against proceeding under s 501BA(2). However in this case, I have decided to proceed, even noting that the exercise of my s501BA(2) power will have real and practical consequences to Mr IBRAHIM and his family, they being third parties. In this instance Mr IBRAHIM’s family includes his three minor Australian citizen children and his girlfriend, Ms Raelene Rowland.

[14]    I also note that Mr IBRAHIM made representations in support of the revocation of the cancellation decision and received that assistance of the South Australian Legal Services Commission. Since that time, some two and a half years have elapsed. I note that Mr IBRAHIM’s visa was cancelled by the Assistant Minister in May 2017, he has spent some three months in immigration detention between July and October 2017. Mr IBRAHIM was released into the community following the judgment of the Federal Court of Australia on 13 October 2017. I considered that Mr IBRAHIM’s circumstances are likely to have changed in the intervening timeframe, although the Department holds limited information regarding his personal circumstances.

30    Counsel for the Minister submitted, first, that these passages were consistent with the Assistant Minister having made his decision without adverting to his power to seek submissions from the appellant, and not with him having thought that he lacked the power to do so.

31    Counsel submitted, in the alternative, that these paragraphs were to be understood as an explanation by the Assistant Minister of his decision to proceed under s 501BA(2) even though the appellant would be denied procedural fairness and even though it was to be expected that the appellant’s circumstances may have changed since he last provided submissions.

32    Counsel for the Minister drew attention to the fact that the Assistant Minister had, at [44]-[45], referred to further criminal charges which the appellant was facing. The submission was that this indicated that the Assistant Minister had been aware that he could have regard to new information. One may accept that that is so, but the new information had been provided by the Department. It cannot reasonably be regarded as evidencing an appreciation by the Assistant Minister that he could invite submissions from the appellant.

33    The statement in the opening sentence of [11] of “my decision to proceed under s 501BA(2) without natural justice to Mr Ibrahim” and the first two sentences in [13] may, on one view, be understood as statements of a decision to exercise the power under s 501BA(2) and to do so without providing natural justice. It is also possible that the second sentence in [10] may be understood as the Assistant Minister recording why it was that the appellant had not, hitherto, been notified that an exercise of the power under s 501BA(2) was being contemplated.

34    Counsel for the appellant emphasised that the Assistant Minister had adverted expressly to the long period which had elapsed since the appellant’s submissions in September 2015. The Assistant Minister had recognised that this meant that the appellant’s circumstances were likely to have changed, that his decision would have “real and practical consequences” for the appellant and his family (including children) and that the Department held limited information as to his personal circumstances. That made it natural to infer, counsel submitted that, had the Assistant Minister thought that he was able to invite submissions from the appellant, he would have done so. That circumstance, together with the absence of any reference to the power to invite submissions, suggested that the Assistant Minister had thought that s 501BA(2) precluded him from giving the appellant that opportunity.

35    Counsel submitted that a number of text-based considerations supported this conclusion.

36    First, in [10] the Assistant Minister said that the inapplicability of the rules of natural justice meant that the appellant had not been given notice that cancellation was being considered or the opportunity to make submissions. This suggested an understanding by the Assistant Minister that the absence of notice to the appellant was a necessary incident of s 501BA(3).

37    Secondly, [11] suggested a belief by the Assistant Minister that, if he proceeded under s 501BA(2) he could not ameliorate the unfortunate consequences for the appellant of the absence of provision of natural justice. There had been no need for the Assistant Minister to mention this, had he appreciated his ability to remedy the position, even though proceeding under s 501BA(2).

38    The very fact that the Assistant Minister said that he had weighed the disadvantage to the appellant from an absence of procedural fairness “against proceeding under s 501BA(2)” suggested a belief by him that it was not open to him to proceed under that provision and provide the appellant with the opportunity to be heard. That is to say, the weighing was necessary only because the Assistant Minister had not appreciated that he could himself ameliorate the disadvantage.

39    Counsel for the appellant referred to the opening paragraphs of the Departmental submission to the Assistant Minister:

Section 501BA of the Migration Act 1958 (the Act) provides that you may personally set aside a non-adverse decision of the Departmental delegate (the delegate) made under s 501CA (original decision) and cancel a visa that has been granted to a person, without natural justice, if you are satisfied that …

(Emphasis added)

He submitted that this paragraph was “consistent with a view that the absence of natural justice was a necessary incident of the power”. That was especially so as it had not been suggested to the Assistant Minister that he had the power (now acknowledged by counsel for the Minister) that it was open to him to invite the appellant to make a submission, either generally or in relation to his personal circumstances. Nor was the Assistant Minister told of any practical reasons why the appellant should not be given notice that cancellation of his visa was being considered.

40    Counsel also referred to the terms of the recommendations, made in the alternative, by the Department to the Assistant Minister. The first recommendation was that the Assistant Minister note that he may decide to set aside the Revocation Decision and to cancel the appellant’s visa under s 501BA without natural justice in the national interest. Counsel submitted that the Assistant Minister was thereby being informed that he had a choice between cancelling the appellant’s visa without natural justice or not proceeding under s 501BA(2) at all. The Assistant Minister had not been told that he could make a decision under s 501BA(2) after providing the appellant with natural justice.

41    The second recommendation was that the Assistant Minister note that, if he did “decide to exercise [his] power under s 501BA of the Act, natural justice does not apply” and that the appellant would not at any stage be given the opportunity to make representations. The effect, counsel submitted, was the Assistant Minister was being told that a decision to proceed under s 501BA would inevitably entail the appellant not having natural justice. Counsel also noted that the second recommendation was prefaced with the words “if you decide to exercise your power under s 501BA of the Act, natural justice does not apply” and not “if you decide to exercise your power under s 501BA of the Act without according natural justice”.

42    While the contents of the Departmental submission and recommendations are not immaterial, we are not inclined to attach much weight to them presently. It is the Assistant Minister’s own reasons which are most significant. Even if it be the case that the Departmental officers misunderstood the position, it would not necessarily follow that the Assistant Minister had had the same misunderstanding.

43    It is evident that the Assistant Minister provided his reasons in discharge of the obligation imposed by s 501G(1). That requires the Minister to give to the visa holder a written notice which, amongst other things, specifies the provision under which the decision is made and “sets out the effect of that provision”. In [8] and [9] of his reasons (which it is not necessary to set out presently), the Assistant Minister summarised s 501BA(2) and (4), and, in [10]-[14] specified “the effect” of proceeding under s 501BA(2). In doing so, the Assistant Minister explained the effect of subs (2), and explained why he was proceeding under that subsection. In these circumstances, there is no difficulty in concluding that [10]-[14] of the reasons reveal the Assistant Minister’s understanding of s 501BA.

44    The reasons of the Assistant Minister are of course to be read fairly: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

45    We accept that there are aspects of the reasons which are capable of supporting both constructions.

46    However, in our view, those to which counsel for the appellant referred are to be preferred. The Assistant Minister’s reasons do seem to indicate his understanding that proceeding under s 501BA(2) and doing so without providing natural justice is a composite matter. That is especially so as there is no express recognition by the Assistant Minister that he could proceed under s 501BA(2) and provide natural justice to the appellant. Instead, both the structure and terms of [10]-[14] suggest that the Assistant Minister considered that the decision that he had to make was that of proceeding under s 501BA(2) without providing natural justice, on the one hand, or not proceeding under s 501BA(2) at all, on the other.

47    Secondly, the Assistant Minister’s recognition in [14] that the appellant’s circumstances were likely to have changed since his original submission in September 2015 is in our view particularly pertinent. This seemed to involve an implicit recognition by the Assistant Minister that the appellant’s case was very different from the more typical case under s 501BA(2) in which consideration of the setting aside of a revocation of a cancellation decision occurs relatively soon after the revocation decision (in respect of which the affected person will have had the opportunity to make submissions). It suggests an understanding by the Assistant Minister that it would be fair to give the appellant an opportunity to make further submissions, but that s 501BA(2) did not permit him to do so.

48    Related to this consideration is a third. That is that there is nothing in the Assistant Minister’s reasons which suggests that he regarded the matter as so straightforward that there was no point in giving the appellant the opportunity to be heard, or that he considered that there were circumstances of urgency or other like matters making it appropriate for him to make the decision expeditiously.

49    Fourthly, we consider that there is considerable force in the submission of the appellant’s counsel that the Assistant Minister’s reference to having weighed the disadvantages to the appellant against proceeding under s 501BA(2) was unnecessary if he (the Assistant Minister) had understood that he could himself ameliorate those disadvantages even while proceeding under s 501BA(2).

50    For these reasons, we reject the Minister’s Notice of Contention.

Did the Assistant Minister’s misapprehension amount to jurisdictional error?

51    In a case like the present, jurisdictional error consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by the Act: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23] (Gageler and Keane JJ). That requires consideration of whether it was an express or implied condition of the power conferred by s 501BA(2) that the Assistant Minister understand that s 501BA(3) did not preclude him from providing natural justice. An aspect of that question is whether an erroneous understanding by a decision-maker of the way in which the statutory power may be exercised, when the decision-maker is not bound even to consider the matter, may give rise to jurisdictional error.

52    A number of authorities indicate that an implied condition for the valid exercise of a decision-maker’s powers for which a particular state of mind is required is that the state of mind be formed on a correct understanding of the law. The general principle was stated by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430:

Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.

(Emphasis added)

As is apparent, Hetton Bellbird concerned a mis-construal of the limits of the power in question.

53    In Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-9, Gibbs J said:

It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. … [A] person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account.

(Emphasis added)

54    In Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391, it was found that a Parliamentary Secretary had committed jurisdictional error in purporting to cancel a visa when she had believed, erroneously, that the holder of the visa would have an opportunity to make representations seeking revocation of her decision. Gummow and Hayne JJ (with whom Gleeson CJ agreed) said:

[189]    There will have been a constructive failure to exercise the power reposed in the respondent by s 501(3) or, as Gibbs J put it in Sinclair v Maryborough Mining Warden, a “purported but not a real exercise of [her] functions”, if the respondent precluded herself from exercising the power according to law; she will have done so if she misconceived what in law was involved in the exercise of that power.

…

[196]    In the absence of any evidence providing a further explanation of the reasons, or the parts of the reasons, for the respondent making her cancellation decision of 30 June, it is to be taken that she exercised her discretion under s 501(3) to cancel the prosecutor’s transitional (permanent) visa on an erroneous footing. This is that, if she did cancel the visa, the legislation required there then to be given to the prosecutor, in terms of par 14 of the minute, “an opportunity to make representations seeking revocation of [that] decision”. The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not real exercise of the power conferred by s 501(3). On that footing, prohibition and certiorari properly lay.

(Citation omitted)

55    In Wei, Gageler and Keane JJ said (at [33]):

The “satisfaction” required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law. …

(Citation omitted and emphasis added)

56    Finally, in Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350, the High Court said (at [68]):

The Minister’s reasons for his decisions to cancel the visas of the plaintiff and the applicant refer repeatedly to the Minister having taken into account information described variously as “protected information under section 503A” and “information which is protected from disclosure under section 503A”. The inference to be drawn is that the Minister made the decisions on the understanding that s 503A was valid in its entirety and operated to prevent the Minister from in any circumstances being required to divulge or communicate the information including to a court engaged in the judicial review of the decisions. That understanding was in error. The error was not as to the question to be asked by the Minister in making the decision but as to an important attribute of the decision to be made: whether or not the decision would be shielded from review by a court in so far as it was based on the relevant information. As in Re Patterson; Ex parte Taylor, where the error of the Minister was a failure to appreciate that there would be no opportunity to seek revocation of the decision, “[t]he result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3)”.

(Citations omitted)

57    Counsel for the appellant submitted that the Assistant Minister’s misunderstanding had affected the validity of his decision. It meant, counsel submitted, that the Assistant Minister had treated his power to act under s 501BA(2) as conditioned on him not affording a hearing to the appellant. Alternatively, that the Assistant Minister had perceived a limit on his power which did not, as a matter of law, exist because Parliament had left open the possibility that a Minister may wish to invite a person affected by the power to make submissions. The jurisdictional error is the same as it would have been had the Assistant Minister concluded that he could not take into account favourable material actually provided by the appellant in the mistaken belief that s 501BA(3) precluded him from doing so.

58    Counsel submitted that, had the Assistant Minister not proceeded on that misapprehension, it is probable that he would have invited submissions, that the appellant and his wife would have taken advantage of that opportunity, and that, in the light of the content of Ms Ibrahim’s affidavit, the Assistant Minister would then have made his decision on a materially different factual basis.

59    Counsel for the Minister submitted that the Assistant Minister’s failure to accord procedural fairness in the exercise of his statutory power under s 501BA(2) could not constitute jurisdictional error given that the Assistant Minister had not been bound to provide natural justice. This was the same matter on which the decision of the primary Judge rested, namely, that the Assistant Minister had not been bound to consider whether to give the appellant the opportunity to make submissions.

60    Counsel for the Minister submitted next that the Assistant Minister would have committed jurisdictional error only if he had misconceived what in law was involved in the exercise of the power under the Act. The relevant question, she submitted, was whether there had been a real exercise of the statutory power, not whether “ancillary capacities or extra-statutory functions or processes have been considered or engaged in”. The submission, as we understood it, was that as the “capacity” to invite submissions from the appellant was “extra-statutory”, the mistake as to its availability could not give rise to jurisdictional error.

61    The second submission of the Minister cannot be accepted. As already indicated, the power or capacity of the Minister is not “extra-statutory” but derives from the statutory power in question. It is an incident of that power which had not been precluded by s 501BA(3).

62    To our minds, the fact that the Assistant Minister had not been bound, by reason of s 501BA(3), to invite further submissions from the appellant, or even to consider whether to invite further submissions, is not decisive. Framing the issue in that way tends to focus attention on whether the Minister had failed to do a positive act required by the Act. The submission of the appellant involves a different claim, namely, that in forming the state of satisfaction contemplated by s 501BA(2), the Assistant Minister had been required to understand that he was not, by the terms of the Act, precluded from obtaining further submissions from the appellant. If the Assistant Minister had had that understanding of the effect of the Act, then (subject to issues of legal unreasonableness), a decision on his part not to seek further submissions or a failure to advert to that question at all would not have amounted to jurisdictional error. On the other hand, if the Assistant Minister had a positive understanding that s 501BA(3) precluded him from giving effect to the rules of natural justice by inviting the appellant to make submissions or to provide further material, then that would involve a misunderstanding of the nature of the power he was exercising.

63    In our opinion, the Assistant Minister proceeding on the basis that he could not provide the appellant with an opportunity to be heard because s 501BA(2) precluded him from doing so was to misunderstand the nature of the power being exercised. He should have understood that it was open to him to invite submissions from the appellant if he chose. The matters to which we referred in [15] above indicate the materiality of the Assistant Minister’s misapprehension: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [31], [46], [66]-[72]. That has the consequence that the decision is affected by jurisdictional error. This conclusion makes it unnecessary to consider an additional submission of the appellant directed to Ground 1 based on BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456.

64    For these reasons, we uphold Ground 1.

Ground 2

65    In Ground 2, the appellant contended that the Assistant Minister’s decision was affected by a different misunderstanding of the law. The Assistant Minister said that it was unnecessary for him to determine whether non-refoulement obligations were owed to the appellant as that could be considered on an application for a Protection visa which it was open to the appellant to make. The appellant submitted that the Assistant Minister had not understood that that consideration would likely be of no benefit to him because an application by him for a Protection visa was likely to fail for independent reasons, namely, his inability (or possible inability) to satisfy Public Interest Criteria 4001 and/or s 36(1C) of the Act.

66    The appellant’s submission was based on passages in the Assistant Minister’s reasons concerning Australia’s non-refoulement obligations. The Assistant Minister noted submissions that the appellant faced the risk of harm from violence if returned to Nigeria and a submission of the appellant’s then solicitor that these circumstances warranted an International Treaties Obligation Assessment:

[95]    I considered Ms Rutherford’s submission that Mr IBRAHIM’s case warrants an International Treaties Obligations Assessment. Ms Rutherford submits that Mr IBRAHIM’s family is from northern Nigeria and that Christians in northern Nigeria have been targeted by the fundamentalist group Boko Haram. Ms Rutherford cites the existence of communal violence between ethnic groups as well as Christians and Muslims in northern Nigeria which may place Mr IBRAHIM at risk of harm if he is removed to Nigeria.

[96]    I note Mr Tijani’s letter that Mr IBRAHIM is a Christian from northern Nigeria and that Christians are subject to ‘brutal attacks and persecution for their faith in Christ’.

(Emphasis in the original)

67    In respect of these submissions, the Assistant Minister said:

[97]    I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr IBRAHIM 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 considered in the course of processing the application.

[98]    A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware 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. 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 referring of the application for consideration under s501. I am therefore confident that Mr IBRAHIM would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

[99]    I have also considered Mr IBRAHIM’s claims of harm upon return to Nigeria outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr IBRAHIM’s claims are such as to engage non-refoulement obligations, Mr IBRAHIM may face hardship arising from his Christian faith were he to return to Nigeria.

68    As is apparent in these passages, the Assistant Minister said, in effect, that it was unnecessary to consider possible non-refoulement obligations in making his decision under s 501BA(2) because obligations of that kind would be considered in the context of an application for a Protection visa, which the appellant would be able to make if he wished.

69    Criterion 4001 is made a condition to be satisfied for the grant of a Protection visa by cl 866.225 in Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). It provides:

4001    Either:

(a)    the person satisfies the Minister that the person passes the character test; or

(b)    the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c)    the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)    the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

70    The appellant’s submission relied in part on the decision of the majority in BCR16. That case concerned the cancellation of a visa under s 501(3A) of the Act. The Assistant Minister in question had declined to consider whether Australia owed non-refoulement obligations to the appellant in BCR16, noting that he could make a valid application for a Protection visa, and that non-refoulement obligations would be considered in the course of determining that application. Bromberg and Mortimer JJ held that this involved a misunderstanding of the Act, because a Protection visa could be refused on other grounds without non-refoulement obligations ever being considered. That is to say, it was not the case that non-refoulement obligations would necessarily be considered in the context of an application for a Protection visa.

Direction No. 75

71    The decision in BCR16 was followed in a number of subsequent cases, including Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523.

72    However, there has been a relevant change of circumstance since the decisions in BCR16 and those following it. On 5 September 2017, acting pursuant to s 499 of the Act, the Minister issued Direction No. 75 entitled “Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)”. The Direction is expressed to apply to “delegates who consider valid applications for Protection visas under section 47 of the Act, and perform functions or exercise powers under section 65 of the Act to grant or refuse to grant Protection visas.”, (cl 3). By s 499(2A) of the Act, delegates are obliged to comply with the Direction.

73    Under the heading “General Guidance”, cl 2 of Direction No. 75 provides:

In order to effectively protect the Australian community where Protection visa applicants present serious character or security risks, these issues should be considered as early as possible and, where possible, as part of the process for assessing whether the section 36 criteria are met. Decision-makers should assess whether the refugee and complementary protection criteria are met before considering ineligibility grounds.

(Emphasis added)

74    Direction No. 75 concludes with the following directions:

Part 2 of Direction No. 75 – Directions

In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.

1)    The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.

2)    Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa specific ineligibility criteria at section 36(1C).

3)    Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision-maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).

a)    Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.

4)    If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.

5)    The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).

(Emphasis in the original)

75    The effect of the first direction is that the protection criteria, whether under s 36(2)(a) or s 36(2)(aa), should be considered first in the determination of an application for Protection visa. However, persons who satisfy the protection criteria may still be refused a Protection visa if at a later stage in the assessment of their application they are found not to satisfy the character criteria or the security criteria in one or other of s 36(1B), s 36(1C) or s 36(2C). Those subsections provide:

(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; o

(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.

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

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

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

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

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

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

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

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

76    The appellant’s submissions accepted that, in the event that he makes an application for a Protection visa, the protection criteria will be considered first. He also accepted that this meant that the misapprehension of law identified in BCR16 could not be said to exist in this case.

Refinement of the error alleged

77    Counsel submitted, however, that the Assistant Minister’s reasons reveal an error of a related kind, namely, that he had proceeded on the implicit basis that, if protection obligations were found to be owed to the appellant on consideration of an application for a Protection visa, that would be of benefit to him in some way. That understanding was wrong, the submission ran, because the effect of the Act, as made plain by Direction No 75, is that even if the protection criteria are considered first, a Protection visa could still be refused on other grounds.

78    There was no indication in the reasons of the Assistant Minister, counsel submitted, that he had appreciated that a finding that Australia did have protection obligations in respect of the appellant may not result in him being granted a Protection visa. Counsel submitted moreover, that:

[37]    The fact that international obligations would be considered on any protection visa application could provide a sensible or rational basis to exclude consideration of international obligations at the s 501BA stage (concerned with the discretionary cancellation of a visa) only if a finding that Australia had such obligations in the course of that process would be likely to result in the appellant benefiting from that finding. The natural understanding, to a person in the position of the Assistant Minister, provided with the Submission and the draft Statement of Reasons to sign, would be that the “consideration” referred to, if favourable to the appellant, would be of benefit to him.

(Emphasis in the original)

79    Counsel also noted that the appellant had no entitlement to have the Assistant Minister consider his non-compellable power under s 195A of the Act to grant a visa. The submission seemed to be that the potential for that power to be exercised in the consideration of the exercise of the power in s 501BA(2) was greater than it would be on an application for a Protection visa.

80    Next, counsel noted the different position of an applicant seeking the grant of a new visa, from that of a person resisting the cancellation of an existing visa.

81    In support of the first part of his submission, counsel referred to Ibrahim (No 2) in which White J said:

[61]    Fifthly, as counsel for the Applicant submitted, it seems improbable that an Assistant Minister having a correct understanding of the Act would have thought it unnecessary to consider the non-refoulement submission in the context of s 501BA(2) because of an expectation that it would, in the ordinary course, be considered in the context of an application for a protection visa. That is because such an Assistant Minister would also have understood that that consideration would be of no utility for the Applicant given that his application would in any event have to be refused on character grounds. One would not readily impute such an intention to the Assistant Minister.

The reasons of the primary Judge

82    A submission to similar effect to that now made by the appellant was rejected in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J) and in Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Logan J), primarily because of the effect of Direction 75. The primary Judge said, at [34], that he was not satisfied that the approach in Ali and Greene was clearly wrong. In addition, the Judge was not satisfied that the Assistant Minister had proceeded on the basis that the appellant would be granted a Protection visa if non-refoulement obligations were found to be owed, at [34].

83    Counsel for the appellant submitted that the primary Judge had been wrong in the deference he had given to the decisions in Ali and Greene, as the issue was one of fact. One may accept that the question of whether the Assistant Minister had the claimed misunderstanding of the law does involve issues of fact, but we note that the appellant did not seek to distinguish the circumstances giving rise to the question in either Ali or in Greene from his own. Furthermore, the approach in Ali and in Greene has been followed in subsequent cases: Turay v Assistant Minister for Home Affairs [2018] FCA 1487; BKS18 v Minister for Home Affairs [2018] FCA 1731; Sowa v Minister for Home Affairs [2018] FCA 1999 (all of which involved the review of decisions under s 501CA(4)) and in DOB18 v Minister for Home Affairs [2018] FCA 1523 (involving a review of a decision under s 501BA(2)).

Conclusion on Ground 2

84    In our opinion, the Assistant Minister’s reasons indicate that he understood that:

    the appellant is able to make a valid application for a Protection visa;

    the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application;

    a Protection visa is the “key mechanism” provided for the consideration of claims that an applicant would suffer harm if returned to his or her home country;

    Direction 75 requires decision-makers to consider the refugee and complementary protection criteria before considering ineligibility criteria; and

    the appellant will have his protection claims fully assessed on an application for a Protection visa.

85    It is implicit in the Assistant Minister’s reasons that he appreciated that the appellant may be refused a Protection visa, even if found to satisfy the protection criteria, because of the “ineligibility criteria”. That is, the Assistant Minister understood, using the terminology of the appellant’s submissions, that the consideration of an application for a Protection visa may not be of “benefit” to him, even if he satisfied the protection criteria. Direction 75, to which the Assistant Minister referred, expressly contemplated such an outcome. This is sufficient by itself to distinguish the circumstances of the decision made on 26 February 2018 from those considered in BCR16 and in Ibrahim (No 2) and to indicate that the Assistant Minister did not have the misunderstanding which this Ground imputed to him.

86    For these reasons, Ground 2 fails.

Ground 3

87    Counsel for the appellant accepted that the appellant requires leave to advance Ground 3, as it had not been argued before the primary Judge.

88    By proposed Ground 3, the appellant contends that the Assistant Minister had not understood, when reasoning that Australia’s non-refoulement obligations in respect of him would be addressed in the context of an application for a Protection visa, that the content of the former differ in material respects from the criteria contained in s 36 of the Act, these being the criteria which would be considered on an application for a Protection visa.

89    Counsel’s submission proceeded as follows:

    the appellant’s former solicitor had submitted, as the Assistant Minister had noted, that his case warranted an “International Treaties Obligations Assessment” (ITOA), at [95];

    an ITOA is the form of an assessment, not provided for in the Act, by which the Department assesses whether Australia owes non-refoulement obligations to an individual under, amongst other things, the Convention Relating to the Status of Refugees (1951) as Amended by the Protocol Relating to the Status of Refugees (1967) (the Refugees Convention): Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [9];

    the Assistant Minister said in [97] of his reasons that it was not necessary for him to consider whether non-refoulement obligations were owed to the appellant, because the existence or otherwise of such obligations would be considered in the course of processing an application for a Protection visa which it was open to the appellant to make;

    the “non-refoulement obligations” which the Assistant Minister said that he need not consider should be understood as a reference to the obligations of Australia under international law;

    in reasoning that the existence or otherwise of those “non-refoulement obligations” would be considered in the context of an application for a Protection visa, the Assistant Minister had assumed that the criteria which attract the international obligations are the same, or substantially the same, as those under s 36(2) of the Act; and

    the Assistant Minister’s assumption was wrong.

90    Counsel noted that, before the amendments to s 36 of the Act effected by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment) which came into operation on 18 April 2015, the criterion in s 36(2)(a) of the Act had largely “picked up” the definition of “refugee” in Art 1 A(2) of the Refugees Convention, namely:

… [O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

91    In their form before the 2014 Amendment, ss 36(2)(a) and (2)(aa) had provided:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(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)

92    Since the 2014 Amendment, ss 36(2)(a) has provided as follows:

(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

(Emphasis added)

93    As is apparent, before the 2014 Amendment, the protection obligations to which s 36(2)(a) referred were those arising under the Refugees Convention. Australia had “protection obligations” to persons who were refugees as defined in Art 1 of the Refugees Convention: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at [42]. The 2014 Amendment removed the reference to the Refugees Convention and substituted the words “because the person is a refugee”.

94    The term “refugee” and the term “well-founded fear of persecution” which it incorporates are defined in the Act in ss 5H and 5J respectively.

95    Counsel for the appellant submitted, and counsel for the Minister did not dispute, that the criteria under ss 5H and 5J are narrower than those under the Refugees Convention. Counsel referred, in particular, to the “internal relocation principle” by which persons may be found to be refugees within the meaning of the Refugees Convention if they have a well-founded fear of persecution in one part of their home country, and it would not be reasonable to expect them to relocate to another part: SZATV v Minister for Immigration and Citizenship [2007] HCA 40, (2007) 233 CLR 18 at [19]-[22]; Minister for Immigration and Border Protection v SZSCA [2014] HCA 45, (2014) 254 CLR 317 at [22]-[25]; CRI028 v The Republic of Nauru [2018] HCA 24, (2018) 356 ALR 50 at [22]-[26]. Section 5J(1)(c) has the effect of removing the internal relocation principle from consideration in an application for protection under s 36(2)(a): BCH17 v Minister for Immigration and Border Protection [2018] FCA 300 at [46].

96    Counsel for the appellant submitted that the internal relocation principle was potentially relevant presently because of the claim that the appellant has a well-founded fear of persecution in the north of Nigeria.

97    Hence, the appellant submitted that it had been wrong for the Assistant Minister to assume that Australia’s international non-refoulement obligations would be considered in the assessment of an application for a Protection visa.

98    Counsel for the Minister submitted that the effect of Ground 3 was to contend that the Assistant Minister had apprehended, incorrectly, that the law with respect to Australia’s non-refoulement obligations remained as it was before the 2014 Amendment. With respect, we do not think that it is the effect of the submission. It was instead a submission that the Assistant Minister had conflated Australia’s obligations under international law with the criteria giving rise to protection obligations under s 36 of the Act.

99    Counsel for the Minister also submitted that the Assistant Minister should be understood as having used the term “non-refoulement obligations” and its cognates “within the context of the statutory framework” applying since the 2014 Amendment. This meant, counsel submitted, that the Assistant Minister should be regarded as having used the term to refer to the protection obligations under the Act. Counsel accepted that there may have been some “looseness of language” by the Assistant Minister but that, on a fair reading, his reasons should not be understood as indicating an understanding that Australia’s international obligations would be considered in the application of the s 36 criteria.

Consideration

100    The term “non-refoulement obligations” derives from Art 33 of the Refugees Convention. That Article provides (relevantly):

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.

…

101    The scope of the obligation imposed by Art 33 has been discussed by the High Court in several decisions including NAGV and NAGW of 2002 and Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1. In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) [2011] HCA 32; (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ said of the non-refoulement obligation imposed by Art 33(1):

[94]    … Australia (and any other party to the Refugees Convention and the Refugees Protocol) would act in breach of its international obligations under those instruments if it were to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Accordingly, for Australia to remove a person from its territory, whether to the person’s country of nationality or to some third country willing to receive the person, without Australia first having decided whether the person concerned has a well-founded fear of persecution for a Convention reason may put Australia in breach of the obligations it undertook as party to the Refugees Convention and the Refugees Protocol, in particular the non-refoulement obligations undertaken in Art 33(1) of the Refugees Convention.

(Citation omitted)

102    The term “non-refoulement obligations” appears only twice in the Act: in s 197C(1) and (2). It is defined for that purpose in s 5(1). Both s 197C and the definition were inserted into the Act by the 2014 Amendment. The s 5 definition is as follows:

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).

103    The definition confirms that the term “non-refoulement obligations” encompasses obligations undertaken by Australia pursuant to certain international treaties (and not just the Refugees Convention). It is not confined to the protection obligations to which s 36(2) refers.

104    Before the 2014 Amendment, the term “non-refoulement obligations” was often used interchangeably with the term the “protection obligations” contained in s 36(2)(a) of the Act. That usage has continued after the commencement of the 2014 Amendment. See, for example, Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 (MIBP v Le) at [41], Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 and COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; 236 FCR 148 However, the issue now before the Court had not been raised in these cases.

105    In MIBP v Le, Ayoub and COT15, it was held that the existence or otherwise of non-refoulement obligations was not a mandatory relevant consideration in decisions under s 501(2).

106    In our opinion, a number of matters support the conclusion that the Assistant Minister did conflate Australia’s non-refoulement obligations under the Refugees Convention with the protection obligations to which the Act refers and which are considered on an application for a protection visa. First, there is the very use by the Assistant Minister of the term “non-refoulement obligations” which, as indicated, derives from the Refugees Convention. The Assistant Minister used that term and not the term “protection obligations” appearing in s 36(2)(a) of the Act. It is reasonable to infer that, in doing so, the Assistant Minister was intending to deal with the appellant’s submission concerning Australia’s obligations under international law in the terms in which it had been expressed.

107    Secondly, the Assistant Minister gave as his reason for holding that it was unnecessary for him to consider whether non-refoulement obligations were owed the fact that the appellant was able to apply for a Protection visa. That is strongly suggestive of a belief on the Assistant Minister’s part that non-refoulement obligations under the Refugees Convention are the same as protection obligations under s 36(2)(a).

108    Thirdly, the Assistant Minister’s reference in [98] to the manner in which protection applications are assessed confirms his conflation of the two obligations. This is apparent in the Assistant Minister’s expression of confidence in the last sentence of [98] that the appellant would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

109    Fourthly, the Assistant Minister’s reference in [99] to his consideration of the appellant’s position “outside of the concept of non-refoulement and the international obligations framework” indicates a belief by the Assistant Minister that he had addressed the issues of non-refoulement and the international obligations framework in the preceding two paragraphs.

110    Finally, it is pertinent that, despite the difference between non-refoulement obligations under the Refugees Convention, on the one hand, and protection obligations under s 36(2)(a), on the other, the Assistant Minister did not advert to those differences.

111    In our view, when the Assistant Minister’s reasons are read fairly and with regard to the surrounding context, it is apparent that he used the term “non-refoulement obligations” in [97] of his reasons as a form of shorthand reference to both non-refoulement obligations arising under international law and to protection obligations arising under s 36 of the Act. His statement that “the existence or otherwise of non-refoulement obligations would be considered in the course of processing the [Protection visa] application” is a strong indication of this.

112    For these reasons, we consider that the Assistant Minister did proceed on the misapprehension for which the appellant contends, namely, that both non-refoulement obligations under the Refugees Convention as well as protection obligations under s 36(2)(a) would necessarily be considered in the context of an application by the appellant for a Protection visa.

113    The Assistant Minister’s belief involved misapprehension of the effect of the Act because, on an application for a Protection visa, it is only the criteria in s 36 which are to be considered. Section 65 has the effect that a Protection visa is to be granted if the Minister is satisfied of those criteria and refused if they are not. The internal relocation principle in relation to the existence or otherwise of non-refoulement obligations cannot form part of that consideration, at least in the application of s 36(2)(a).

114    For the reasons given earlier, it was necessary for the Assistant Minister to have a correct understanding of the Act when forming the state of satisfaction required by s 501BA(2). That is so, even if the existence or otherwise of non-refoulement obligations in respect of the appellant was not a mandatory relevant consideration under s 501BA(2) (MIBP v Le at 41]). It is understandable, given that it is a matter concerning Australia’s international obligations and the terms of s 197C of the Act, that the Assistant Minister did consider it appropriate that account be taken of Australia’s obligations with respect to non-refoulement. As already noted, his reasons indicate that he intended to do so. However, the Assistant Minister misapprehended the way in which that could occur under the Act.

115    The Assistant Minister’s error was material given the potential for the internal relocation principle to be applied in the appellant’s circumstances.

116    Accordingly, we conclude that the Assistant’s Minister’s error was jurisdictional. It was the form of error to which the majority in BCR16 referred at [72].

117    In these circumstances, we grant the appellant leave to argue Ground 3 and uphold it.

118    After the Court reserved its decision, the parties drew the Court’s attention to the decision of Mortimer J in Omar v Minister for Home Affairs [2019] FCA 279 in which her Honour considered a submission that the Assistant Minister had made an error of a similar kind. Neither party sought the opportunity to make further submissions in the light of the decision in Omar.

119    The decision of the Full Court in DOB18 v Minister for Home Affairs [2019] FCAFC 63 was also delivered after judgment in this matter had been reserved. Again, neither party sought leave to make further submissions in the light of that decision.

Conclusion

120    For the reasons given above, we allow the appeal, set aside the orders of the primary Judge and, in their place, order that a writ of certiorari be issued directed to the Assistant Minister for Home Affairs quashing the decision made on 26 February 2018 to cancel the appellant’s Class BC (Subclass 100) Partner (Migrant) visa. We will hear from the parties with respect to costs.

Associate:

Dated:    30 May 2019