Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be fixed by way of a lump sum.

3.    If the parties agree on a lump sum figure in relation to the first respondent’s costs, they are to file a joint minute of proposed orders on or before 4 pm AEST on 6 September 2021.

4.    In the absence of any agreement having been reached on or before 6 September 2021, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs, to be fixed by way of a lump sum.

3.    If the parties agree on a lump sum figure in relation to the respondent’s costs, they are to file a joint minute of proposed orders on or before 4 pm AEST on 6 September 2021.

4.    In the absence of any agreement having been reached on or before 6 September 2021, the matter of an appropriate lump sum figure for the respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have read the reasons to be published of Kerr J and Mortimer J. I agree with them and with the orders proposed by their Honours. Given their Honours’ reasons, in particular their views as to the correctness of Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627, Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 and BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456, it is strictly unnecessary to consider the question of the meaning or content of the phrase “plainly wrong” and the circumstances in which a Full Court of this Court should undertake a reconsideration of, or should depart from, previous Full Court authority. Nevertheless, the circumstances of these appeals call for some general comments about the subject, and about associated questions of practice in the operation of the business of the Court.

2    The phrase “plainly wrong” has its contemporary roots in the High Court’s clear instruction in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 152 [135]. In Marlborough Gold Mines the Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) was concerned with uniform State and Territory and in that sense national legislation, and Commonwealth legislation. In Farah Constructions the Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) was concerned with the common law (in the sense of general or non-statutory law, including principles of Equity) of Australia. The principle, directed at the respect to be paid to prior decisions of intermediate appellate courts in the Federation, was that intermediate appellate courts and trial judges should not depart from such a decision unless convinced that it was plainly wrong.

3    The phrase “plainly wrong” is now in widespread use and has been used many times by single judges of this Court in the original jurisdiction about decisions of their colleagues and by Full Courts of this Court in respect of earlier Full Court decisions. (See Lucas, R “Plainly wrong: The application of the Federal Court’s threshold of error” (2020) 48 Australian Bar Review 372.) The phrase is sometimes used (incorrectly) as if it had a fixed content of meaning.

4    The circumstances in which a court of appeal should depart from an earlier appellate decision of the court was stated by Dawson, Toohey and McHugh JJ in Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 at 268–269 “to be a matter of practice for the court to determine for itself”; but that any such departure should be done “cautiously and only when compelled to the conclusion that the earlier decision is wrong”. Their Honours said that the “occasions upon which the departure from previous authority is corrected are infrequent and exceptional”.

5    This expression of the matter must now be read with the recognition of a national integrated legal system and one Australian common law. As the New South Wales Court of Appeal (Allsop P, Beazley and Basten JJA) said in Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at 562 [278] referring to these passages in Nguyen:

It is no doubt important that the two paragraphs from Nguyen set out above be read together. The constitutional importance of the doctrine of precedent cannot be entirely at large within a national integrated legal system to the extent that each intermediate appellate court is entitled to determine for itself its own practice with respect to following earlier decisions. That is particularly so in circumstances where, as will be seen below, intermediate appellate courts are required to take into account, and in some circumstances follow, decisions of courts of co-ordinate jurisdiction. The first sentence in the latter paragraph cited above involves a statement of constraining principle; the second appears to identify the consequence which should flow from the application of the principle of constraint. Like similar statements in relation to prosecution appeals against sentence, the effects of applying the principle are likely to depend upon how it is understood by lawyers and courts.

6    In Chamberlain v The Queen [1983] FCA 74; 46 ALR 493 at 498 the first Chief Justice of this Court and one of its most experienced judges (Forster J) said the following:

We do not regard this Court as being bound by its previous decisions. However, we will normally follow an earlier decision unless convinced that it is wrong.

7    The departure requires necessity for conviction as to error. As Chief Justice Gleeson said when Chief Justice of New South Wales in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 100:

… it is generally accepted that before it is appropriate for an appellate court to overrule one of its earlier decisions it must entertain a strong conviction as to the incorrectness of the earlier decision.

8    The jurisprudence of this Court on the question of departure from earlier Full Court authority is most clearly to be found after Chamberlain in Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 at 560–561 [26]–[31] (Black CJ, Hill, Sundberg, Marshall and Kenny JJ); and New Zealand v Moloney [2006] FCAFC 143; 154 FCR 250 at 275 [133]–[137] (Black CJ, Branson, Weinberg, Bennett and Lander JJ).

9    It is a mistake to fix upon one expression of some fixed content within the words “plainly wrong”. It does not just mean “obviously” wrong: Gett v Tabet 254 ALR at 565–566 [294]. In, if I may respectfully say, a most helpful discussion in Transurban 95 FCR at 560–561 the Court recognised the need to balance the risk of perpetuation of error in too rigid a stance in reconsideration of earlier decisions and the importance of the stable operation of the doctrine of precedent and the predictability of the law. The Court in Transurban referred at 560–561 to what had been said in Nguyen, Marlborough Gold and Chamberlain, amongst other cases. After referring to the concluding expression of principle by Dawson, Toohey and McHugh JJ in Nguyen as to the inappropriateness of intermediate appeal courts considering themselves strictly bound by their earlier decisions and the risk of too rigid an adherence to precedent thereby which may perpetuate error, the Court said at 95 FCR 561 [31]:

Beyond this principle, we do not think it possible, or even desirable, to formulate exhaustive criteria upon which this Court should act when asked to reconsider an earlier decision, for so much will depend upon the nature of the controversy, the strength of the arguments, and the particular circumstances attendant upon the case.

See also SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at 257 [190]–[192]; Singh v Minister for Immigration and Border Protection [2016] FCA 141; 247 FCR 554 at 564 [36]; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at 546 [201]; Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366 at 380 [47] and 383 [61]; and Wozniak v Minister for Immigration and Border Protection [2017] FCAFC 148; 258 FCR 147 at 156 [35].

10    As the Court of Appeal said in Gett v Tabet at 254 ALR at 565–567 [292]–[301] after referring to the above passage from Transurban, a decision to depart from earlier authority involves not only a consideration of the jurisprudential nature and character of the error that leads to the conviction of past error, but also other considerations such as, by way of example, whether the earlier decision rested on principle carefully worked out and whether the earlier decision had been otherwise acted upon.

11    Further, as the Court said in Gett v Tabet at 563 [283] the adverb “plainly” may have different work to do in different contexts:

In the jurisprudence of the Federal Court, on a number of occasions, the expressions “plainly” or “clearly” wrong have been used: see, for example, Transurban City Link Ltd v Allan (1999) 95 FCR 553; 168 ALR 687; 57 ALD 583; [1999] FCA 1723 at [26]–[31] (Transurban), especially [29]; New Zealand v Moloney (2006) 154 FCR 250; 235 ALR 658; [2006] FCAFC 143 at [133]–[139]. This can be seen to have been influenced by the use of the expression “plainly wrong” by the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; 112 ALR 627 at 628–9; [1993] HCA 15 (Marlborough Gold Mines). However, it is clear from the discussion in Transurban that those adverbs “plainly” or “clearly” do not limit the circumstances of departure to those in which error is patent or obvious or easily perceived. Rather they bespeak the quality of the error or the level of conviction of error that must be perceived: compare Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; 72 ALD 1; [2003] HCA 2 at [13] (per Gleeson CJ). The reference in Telstra Corporation Ltd v Treloar (2000) 102 FCR 595; [2000] FCA 1170 at [28] (Telstra Corporation) to “patent” is to be understood in its context of the approach to statutory interpretation, over which minds might reasonably differ.

12    In Gett v Tabet the Court was dealing with an important principle of the common law as to whether damages could be awarded for the loss of chance of a better medical outcome. Using the phrase “plainly wrong” dictated by Farah Constructions the Court engaged deeply with applicable principle and departed from a decision of the Victorian Court of Appeal and an earlier decision of the New South Wales Court of Appeal. The Court did so convinced as it was of the error of the approach of these earlier decisions.

13    The approach of the Court of Appeal in that case does not mean that in all cases a Full Court must, or even should, engage in wholesale reconsideration of earlier authority whenever a party challenges it. This is especially so in this Court in the field of migration law so heavily regulated by complex and voluminous legislation, fought over on a daily basis in a constant flow and volume of cases. There are important considerations of the authority of the Court and institutional integrity to be considered. In Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]–[76] French J said the following, albeit about the position of a single judge following an earlier decision of a single judge:

75 It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong - Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 33 (Goldberg J), citing Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 at 412 and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1997) 150 ALR 117 at 121. See also La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 where Burchett J said:

“The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while ‘deserving of the closest and respectful consideration’, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that ‘a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong’: Halsbury, 4th ed, vol 26, para 580. The word ‘usually’ indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle … ”

76 The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. …

14    This Court has a Full Court system in the operation of which any three of over 50 judges might sit on any particular Full Court migration appeal. This calls for thought and discipline in the analysis and organisation of the caseload and cases for listing. This is done by skilled registrars, supervising judges and the National Appeals Judges who assist in the organisation of the caseload and the listing of matters. The Court decides a significant number of migration cases every year, by Full Courts predominantly, but not wholly, on appeal, by single judge appeals and in the original jurisdiction, predominantly, but not wholly, by single judges. The Commonwealth Executive is a party to every one of them. In order for the institutional integrity of the Court to be protected, coherence and consistency of principle to be maintained, and the public resource of judicial time to be deployed effectively, the considered decisions of Full Courts should not be lightly interfered with. Most will involve questions of statutory construction which should not be departed from on questions where minds may simply differ and unless the error is clear or patent: Transurban 95 FCR at 560 [29]; Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595 at 602–603 [27]–[28]; SZEEU 150 FCR at 257 [190]; and Gett v Tabet 254 ALR at 563 [283]. As French J said in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; 133 FCR 190 at [52]:

… Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction. …

15    Sometimes, a five judge bench will be constituted for reconsideration of earlier authority. But it should not be thought that such additional expenditure of judicial resources will be deployed just because a party wants to challenge earlier authority. This is especially so in this area where the Executive, through the relevant Minister, appears in all cases, and has the expertise and resources to choose vehicles for special leave to the High Court if unsatisfied with principle expressed by this Court.

16    The position of Ali and Ibrahim and the related case of BCR16 (all of which were challenged in this appeal) is emblematic of the problem. There are 19 decisions of single judges in the Court’s original jurisdiction which have applied Ibrahim. There are five Full Court decisions which have done so. There are six decisions of single judges in the Court’s original jurisdiction which have applied Ali (including the two presently subject to these appeals). Two Full Court decisions have done so. BCR16 has been applied 17 times in the Court’s original jurisdiction. Seven Full Courts have applied it, including Ali and Ibrahim. Not only have they been applied in this Court, but it is safe to assume that these Full Court decisions have been applied on many occasions by the Federal Circuit Court, and have also been applied by administrative decision makers in the course of exercising their powers. To depart from them, and change the course of the applicable law, would require a conclusion of fundamental error. This is not intended to encourage mathematical counting of decisions; rather it is to highlight the extent to which the large volume of cases in this area requires coherence and stability for its predictable resolution.

17    With the utmost respect to senior counsel who argued the matter for the Minister with his customary skill and attention to detail, the Minister’s submissions on these appeals provided no justification for departing from the articulation of the applicable law set out by the Full Court in Ali, Ibrahim and BCR16, other than a desire to reargue the same point. Considerable judicial and professional time, not to say money, both public and private, could also have been saved, if a protective formal submission had been put. This is all the more so because the Minister, as the moving party on the matter of changing established law, either sought not to use available avenues of appeal, or failed in the use of them. In Ali, the Minister did not seek special leave to appeal from the Full Court’s decision. Nor was special leave sought from the Full Court decision in Ibrahim. Special leave was sought, but refused, in BCR16 (Minister for Immigration and Border Protection v BCR16 [2017] HCATrans 240). In Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523, in the face of an argument that BCR16 was wrongly decided, the Full Court upheld the reasoning in BCR16.

18    The caution that the Court should exercise before departing from earlier Full Court authority should be reflected in how parties approach the task of appellate advocacy and in how Full Courts approach calls and attempts to re-agitate questions of law (especially statutory construction), decided by earlier Full Courts. This is so especially in the exercise of migration jurisdiction as replete with cases, replete with the same or similar provisions being applied in case after case, and with one litigant in one Ministerial form or another in every case. Parties should expect that a Full Court will demand submissions on matters such as why it should be convinced of error in the earlier decision, why it should exercise the power to depart when that power should be exercised cautiously, sparingly and with great care, why consistency and predictability of principle should give way, and why, if the matter is one of statutory construction, the error is clear or patent (Treloar 103 FCR at 603 [28]), not merely a difference of view as to meaning (Transurban 95 FCR at 560 [29]), or why it has produced unintended and perhaps irrational consequences (Treloar at 603 [28]).

19    There is a judicial and professional discipline to be exercised in how earlier authority of the Court is to be challenged. As Kiefel and Keane JJ said in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 at 383 [198]:

Regularity and consistency are important attributes of the rule of law. As Kirby J said in K-Generation Pty Ltd v Liquor Licensing Court, “care should be taken to avoid (especially within a very short interval) the re-opening and re-examination of issues that have substantially been decided by earlier decisions in closely analogous circumstances.” While it is true that the obligation of this Court is to construe legislation faithfully rather than to perpetuate an erroneous interpretation, there comes a point when a view of statutory construction which may reasonably have been contestable on the first occasion on which it was agitated must be acknowledged to have been settled.

20    Judicial focus should remain on the wider institutional values of consistency and predictability described in the authorities cited above, and on the need for decisions to be re-visited sparingly and with great care in considering whether, in order to advance the equally important value of ensuring the law is correctly pronounced and applied, it may be necessary to depart from a previous decision.

21    The above is directed to the position of Full Court authority. The question of consistency that should weigh on the attitude of a single judge to an earlier first instance single judge decision is a different question. It is not founded on the respective positions of intermediate courts of appeal in an integrated national judiciary, but upon comity. That said, as the expression of principle by French J in Hicks reveals, the matter can be expressed in very similar terms. Comity in this context has often been expressed in similar language to plainly wrong. In Huddersfield Police Authority v Watson [1947] KB 842 at 848, Lord Goddard referred to the modern practice and modern view of the subject that a judge at first instance following a decision of another judge at first instance from comity, not obligation, unless convinced that the decision was wrong. The modern expression of the matter in this Court is to similar effect: Hicks [2003] FCA 737 at [75]–[76] and La Macchia v Minister for Primary Industries and Energy [1992] FCA 673; 110 ALR 201 at 204.

22    The Full Court appellate structure, and in cases of importance the use of Full Courts in the original jurisdiction, are statutory and institutional mechanisms for the correction of error (in respect of appeals) and the expression and development of coherent and consistent principle and application of law and statute. For that reason caution in, and the need for sound and convincing reasons for, departure from earlier authority are heightened in the Full Court context. Comity and consistency in the approaches of judges at first instance is to be desired and expected. However, the adherence to earlier Full Court decisions by a later Full Court save where convinced of error in the earlier decision and where circumstances make it appropriate not to follow the earlier decision stems from considerations even more important than comity. It concerns, as Kiefel and Keane JJ said in Plaintiff M76/2013, regularity and consistency as attributes of the rule of law.

23    The question of the approach to single judge appellate decisions does not arise for consideration in this case, but given the above discussion, for the purpose of completeness and the reinforcement of the place of Full Court authority, it is appropriate to say the following on the topic, although one aspect of the following should await further consideration by the Court and after full argument or any possible legislative amendment to the Federal Court of Australia Act 1976 (Cth) (the Act).

24    At least three considerations should be noted at the outset: First, as Dawson, Toohey and McHugh JJ recognised in Nguyen, the Court’s practice as to following prior decisions is central. Secondly, single judge appellate decisions are appellate authorities, correction of which is by the High Court on special leave. Thirdly, the structure and purposes of the Court’s governing statute are important to consider in the shaping of the Court’s practice. In this regard, ss 20(1A), 25(1AA), 25(6) and 26 of the Act are important. There is great utility, carefully used, in employing Full Courts in the original jurisdiction, through s 20(1A) or s 25(6), to decide questions of importance, from which appeal to the High Court can be sought by special leave. Sometimes such a bench is assembled under s 20(1A) to facilitate a challenge to earlier Full Court authority, without the expense and delay of a first instance hearing and an appeal: see for example Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146. There are powerful reasons to consider that the authority of those decisions should not be undermined by reference only to their status as in the original jurisdiction. Their direct review is by the High Court, the appellate jurisdiction of this Court over judgments of the Court being limited to single judges in the original jurisdiction: s 24(1)(a). This clearly distinguishes a Full Court decision in the original jurisdiction from a single judge decision. It is for that reason wrong to equate a Full Court decision of say three judges in the original jurisdiction with three separate single judge decisions in the original jurisdiction: the former is not appealable in this Court, the latter are. Likewise the procedure of the case stated under s 25(6) (from a judge of this Court) and s 26 (from a court from which appeals lie to this Court) reflect the importance of the Full Court in the exposition of principle. To qualify the status of such decisions by the Full Court may be seen to undermine the great utility of s 20(1A), s 25(6) and s 26. Nevertheless, there is, as I shall come to later, an issue about the status of Full Courts in the original jurisdiction of the Court.

25    By s 25(1AA), the Parliament provided the Court with the flexibility of the allocation of judicial resources by a statutory default position that an appeal from the Federal Circuit Court would be by a single judge unless a judge of the Court considered it “appropriate” for the appeal to be heard by a Full Court. See likewise s 26(2)(a) in relation to the case stated and reserved question. What factors will make it appropriate in any given case may be many, but principal among them are the importance of the issue presented for resolution and the presence of a question of principle or of complexity of construction. So much can be comfortably drawn from the statute.

26    The provisions of the Act reveal, in my view, an intended pre-eminence within the Court’s precedential hierarchy of Full Court authority. The Act does not provide for a standing court of appeal, but the provisions to which I have referred allow for the flexible and nuanced operation of Full Courts in the Court’s diverse jurisdictional task across the subjects provided for in s 51 of the Constitution, through s 76(ii) of the Constitution and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). The Act also provides (in s 25(1AA)) for the efficient use of judicial resources by single judges hearing appeals from the Federal Circuit Court unless it is considered that it is appropriate to do otherwise and that a Full Court should hear the appeal.

27    In GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [36], Mortimer J and I, in dealing with whether a later Full Court should follow an earlier single judge appellate authority unless it considered the earlier decision to be “plainly wrong”, said:

At base, whatever the language employed, the issue is one of maintaining comity between members of the same court, with due regard being paid to the core judicial responsibility in each case to do justice according to law, as the court then constituted understands the law to be.

28    In AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129; 264 FCR 654 the submission was put (at 659–660 [19], as it had been in GLD18) that because the earlier single judge decision was at the same level of appellate hierarchy, a Full Court was obliged to follow the earlier single judge appellate authority unless it considered it plainly wrong. This was based on a view of the doctrine of stare decisis. The nature of the jurisdiction being exercised was submitted to be determinative of the applicable principle. That approach is contrary to the clear statements of the primacy of (at least appellate) Full Court authority in SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487 at 501 [43] (Black CJ and I) and SZNPT v Minister for Immigration and Citizenship [2009] FCA 1408 at [29] (Lander J) which were followed by Foster J in CAV18 v Minister for Home Affairs [2020] FCA 173 at [25]. In those two cases (SZGME and SZNPT) the clear statement was made that a single judge sitting in the appellate jurisdiction should follow an earlier (at least appellate) Full Court authority. That view, as a matter of sound practice, can be seen to be rooted in the place given to Full Courts by the Act in the declaration and expression of principle.

29    The practical and orderly operation of the Court’s business, especially in a high volume jurisdiction such as migration, and in particular to maintain and underpin the utility of the use of Full Courts in the original jurisdiction (under s 20(1A), s 25(6), or s 26 of the Act) to deal with matters of importance, and of the use of single judges on appeal (by maintaining the default rule in s 25(1AA) in appeals that are not considered appropriate to be heard by a Full Court, which judgment will include considerations as to whether the appeal is unlikely to raise questions of complex construction or important principle), can be seen to make it important to give pre-eminent respect to decisions of Full Courts, especially a Full Court assembled to consider a challenge to earlier decisions of the Court. This does not mean that single judge appellate decisions should be easily departed from: they are appellate judgments of the Court. Indeed some take an important place in the jurisprudence of the Court: see for example Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 and Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438. But the practical organisation and efficient discharge of the Court’s business, and the importance of the declaration and expression of the Court’s jurisprudence by Full Courts are powerful considerations of practice, moulded by the form of the Act (ss 20(1A), 25(1AA), 25(6) and 26 in particular) that can be seen to underpin the pre-eminence within the Court’s jurisprudence of Full Court decisions. As to the converse, a later single judge sitting in the appellate jurisdiction provided for by s 25(1AA), I remain of the view that I expressed with Black CJ in SZGME at [43], repeated by Lander J in SZNPT at [29] and followed by Foster J in CAV18 at [25] that a single judge on appeal should follow an earlier decision of (at least an appellate) Full Court. The coherence and stability of Full Court precedent and of the undertaking of the business of the court, especially in, but not limited to, high volume areas of jurisdiction, can be seen to require recognition of the primacy of the place of Full Court authority.

30    Certainly, it is appropriate that another judge sitting as a single judge on appeal give significant respect to any earlier single judge appellate authority (not otherwise supported by Full Court authority) and not depart from it unless convinced of error and of the need to do so, in the language of currency: that it is plainly wrong. Thereby, consistency is maintained and the High Court assisted in its supervision of the jurisprudence by the mechanism of special leave. As to whether as a matter of practice for this Court a later Full Court must find an earlier single judge appellate decision to be plainly wrong in the sense discussed earlier if it is not to follow it, I would not see a Full Court as restricted in this way. It is also inconsistent with the statements of practice in SZGME at [43] and SZNPT at [29] as to the primacy of Full Court authority based as they can be seen to be on the place of the Full Court in the Act.

31    The important reservation to which I earlier referred, and to which the above is subject, is the view that from a strict precedential approach (or at least one expression of it) a Full Court sitting in the original jurisdiction does not bind a single judge sitting in the original (and a fortiori in the appellate) jurisdiction. In 2004 and 2005, Lindgren J and I, in separate cases, were very troubled by a Full Court authority in the original jurisdiction in Macteldir Pty Ltd v Dimovski [2003] FCAFC 228; 132 FCR 492. In Wenkart v Pantzer (No 3) [2004] FCA 280; 135 FCR 422 at [94] and Needlework Warehouse Pty Ltd v Chansonette Pty Ltd [2005] FCA 1525 at [67] Lindgren J stated that the decision was no more binding than three individual judgments to the same effect and that he was not bound by the decision, but would only depart from it unless convinced that it was plainly wrong. In Needlework, his Honour supported his position by reference to the Full Court decision of Weinberg, Jacobson and Lander JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; 141 FCR 586 at [36]–[37] which applied a cognate principle of precedent that a lower court in the judicial hierarchy is only obliged to follow a decision of the higher court when the higher court is exercising appellate jurisdiction, citing Favelle Mort Ltd v Murray [1972] HCA 13; 133 CLR 580 at 591 (Barwick CJ), Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; 82 ALR 499 at 504 (Gummow J), Chief Executive Officer of Customs v Tony Longo Pty Ltd [2001] NSWCA 147; 52 NSWLR 458 at [51]–[52] (Heydon JA), and Cross, R and Harris, J Precedent in English Law (4th ed, Clarendon Press, 1991) at 123. Justice Lindgren did not find it necessary to deal with the Full Court in Macteldir. In a later iteration of Macteldir ([2005] FCA 1528; 226 ALR 773), I followed Lindgren J and found it necessary to depart from the earlier Full Court. Whilst my view of the error in the Full Court decision in Macteldir has not changed, I consider the approach to the question of precedent by Lindgren J and by me to have been (with the utmost, and unfeigned, respect to Lindgren J) too simplistic, without there being any consideration of the text and structure of the Act and its evident purpose as to the stature of Full Court authority in this Court’s Full Court system.

32    It must be arguable, especially since rules of precedent are dependent on the practice of the courts: Cross and Harris op cit at 5, 98–99, 105, that it is open to the Court in the statement of its practice to align the precedential status of all Full Courts as equal given the structure of the Act and the evident importance given to decisions of the Full Court in it: cf Cross and Harris op cit at 113–116 as to the debate in England in Davis v Johnson [1979] AC 264 about whether the rule laid down in Young v Bristol Aeroplane Co Ltd [1944] KB 718, as to when the Court of Appeal could depart from its own previous decisions, could be done by a later Court of Appeal and, if so, the proper constitution of such a later Court, or whether it could only be done by the House of Lords. This debate in relation to this Court would have to recognise the importance of what Dawson, Toohey and McHugh JJ said in Nguyen that the question is one of practice for the court in question (thus implicitly, not by seeing rules of stare decisis as rules of substantive law, as some members of the House of Lords (Lord Diplock, Viscount Dilhorne and Lord Scarman, contra Lord Salmon) and one member of the Court of Appeal (Cummings-Bruce LJ) did in Davis v Johnson). The debate would also have to take into account (as none of Lindgren J, myself or the Full Court in SZANS did) the statutory purpose, from the text and structure of the Act, especially the provisions to which I have referred, of the importance, indeed evident primacy, of Full Court authority in the operation of the Full Court system in this Court, and the clear need for coherent and stable declaration and expression of principle, including by the statutory mechanisms in ss 20(1A), 25(6) and 26. However, in the light of the authorities in [31] above, a decision on that should await either a decision of the Court after argument, or legislative amendment to the Act expressly aligning the precedential weight of Full Court decisions in the original and appellate jurisdiction. Until that time, however, single judges, whether in the original or appellate jurisdiction, should, at the very least, follow a Full Court decision in the original jurisdiction unless strongly convinced that it is plainly wrong.

Associate:

Dated:    23 August 2021

REASONS FOR JUDGMENT

KERR AND MORTIMER JJ:

33    These two appeals were heard together, on the basis of a common issue raised by the Minister in each appeal. Each of the respondents is a person whose visa was cancelled under s 501 of the Migration Act 1958 (Cth) on character grounds. In each of their cases, there was a question whether Australia’s international non-refoulement obligations were engaged in respect of their circumstances and what effect, if any, this should have on the decision whether or not to revoke their visa cancellations. We will refer to the respondents by their pseudonyms. For the reasons set out below each appeal must be dismissed.

Background

34    The factual background to CZW20’s proceeding is set out in the primary judge’s reasons in CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1380 at [2]. It should be noted that the primary judge delivered this decision ex tempore, because CZW20 had been held in immigration detention for some time and his Honour had concluded the cancellation decision must be set aside, so that CZW20 was entitled to be released from detention. Although his Honour’s reasons are nevertheless comprehensive, the ex tempore nature of the reasons should be taken into account in considering the Minister’s grounds of appeal.

35    The factual background to FAK19’s proceeding is also set out in the reasons of the primary judge in FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 at [2]-[4].

36    In CZW20, there were two decisions of the Minister under review. First, a decision made on 13 August 2018 to cancel CZW20’s visa under s 501(3) of the Act, and second, a decision under s 501C made on 15 October 2019 to refuse to revoke that cancellation decision. By reason of s 501C(4), the question of revocation was limited to whether CZW20 passed the character test. Thus, in substance, the challenge was to the cancellation decision itself.

37    In FAK19, the decision under review was that of the Administrative Appeals Tribunal. FAK19’s visa was cancelled by a delegate of the Minister for Home Affairs on character grounds under s 501(3A) of the Act (the mandatory cancellation provision). Another delegate of the Minister refused to revoke the cancellation decision under s 501CA(4). FAK19 sought review in the Tribunal. Two Tribunal members were constituted to the review; one decided the revocation refusal should be set aside and the other decided it should be affirmed. The latter member was the presiding member and by reason of s 42(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the disagreement was settled in accordance with the opinion of the presiding member. The decision under review was affirmed. It is therefore the reasons for decision of the presiding member which were critical to the judicial review challenge. Where in these reasons we refer to the reasons of the “the Tribunal”, that is to be understood as a reference to the reasoning of the presiding member.

The decisions of the primary judges in each of CZW20 and FAK19

Decision in CZW20

38    The primary judge in CZW20 upheld the challenge to the cancellation decision on the basis that that decision was materially affected by the Minister’s misunderstanding of the Act.

39    According to the primary judge, the Minister had misunderstood the Act in three respects. Each of these misunderstandings essentially flowed from the finding at [110] of the Minister’s reasons that it was “unnecessary” to determine whether non-refoulement obligations are owed in relation to CZW20, because those obligations would be considered if CZW20 were to apply for a protection visa.

40    First, this reasoning was based on the assumption that, if CZW20 were to apply for a protection visa under s 36 of the Act, the existence of Australia’s international non-refoulement obligations in respect of CZW20 would be considered. The primary judge considered this to be incorrect because the criteria for a protection visa under s 36 differ from the criteria for engagement of Australia’s international non-refoulement obligations, the latter being “wider and more comprehensive” than the former.

41    Second, the Minister’s reasoning failed to account for the possibility that CZW20’s application for a protection visa would be rejected on health grounds or, more likely, the national interest criteria, before any protection criteria could be considered. Thus it could not be said that any aspect of the non-refoulement obligations in respect of CZW20 would necessarily be considered in an application for a protection visa under s 36.

42    Third, the Minister incorrectly assumed the non-refoulement obligations in respect of CZW20 would be assigned equivalent significance in the consideration of a protection visa application as they would in the Minister’s determination to cancel CZW20’s visa under s 501(3) of the Act.

43    The primary judge was satisfied that these misunderstandings materially affected the Minister’s decision since, if the Minister had considered the non-refoulement obligations owed to CZW20, he might have made a different decision under s 501(3) (including inter alia because of the reputational significance of Australia adhering to its international obligations). Relevant to his Honour’s ruling was the fact that the Minister’s own reasons identified “international non-refoulement obligations” as a potentially “relevant consideration”, with the effect that it is a realistic possibility that, if the Minister had not misunderstood the Act, he might have made a different decision.

44    On the basis of the findings above, the primary judge ordered that the Minister’s decision to cancel CZW20’s visa be quashed and that CZW20 be released from immigration detention.

Decision in FAK19

45    The primary judge in FAK19 also upheld the challenge to the cancellation decision. As in CZW20, this was done on the basis that the decision was materially affected by a misunderstanding of the Act by the relevant decision maker (in this case, the Tribunal).

46    The Tribunal had acknowledged that it was required to consider non-refoulement obligations in respect of FAK19 and, upon that consideration, the Tribunal had determined that FAK19 was owed non-refoulement obligations. However, the Tribunal reasoned that claims to non-refoulement would be “more fully explored” if FAK19 were to apply for a protection visa. Relevantly to the grounds of appeal, the primary judge found at least four errors in this reasoning.

47    First, her Honour considered that there is no requirement for a decision maker determining a protection visa application under s 65 to “fully explore” the question of whether or not Australia owes non-refoulement obligations to the visa applicant. Rather, s 65 calls for a binary assessment of whether the criteria are met or not.

48    Second, if FAK19 did not fulfil the mandatory criteria under for a protection visa, the existence of non-refoulement obligations could make no difference to his application for a protection visa. In this respect the assessment of a protection visa differs from the evaluative exercise under s 501CA(4), in which the prospect of Australia breaching its obligations under international law may be considered, even in circumstances that would disqualify an application for a protection visa. Thus, her Honour considered that, even if s 65 empowers a decision maker to “fully explore” non-refoulement obligations in some circumstances, those obligations would not be considered in all circumstances.

49    Third, the Tribunal gave no consideration regarding what consequences a breach of Australia’s non-refoulement obligations would have for Australia, as opposed to the consequences for FAK19. Her Honour held that this was further evidence of the Tribunal’s confusion between Australia’s international law obligations and the criteria assessed on an application for a protection visa.

50    Fourth, it was irrelevant that FAK19’s removal to Afghanistan would immediately follow the decision not to revoke the cancellation of FAK19’s visa under s 501CA(4), since the consequences of the breach of non-refoulement obligations (both for FAK19 and for Australia) were the same, whether they arose immediately or after another course of decision-making.

51    At trial, the Minister did not contend that the Tribunal’s allegedly erroneous approach was not material to the decision whether to revoke the visa cancellation. Therefore, the primary judge held that the errors were material and properly characterised as jurisdictional. In the alternative, the primary judge explained she would have upheld a second ground of review about the weight given to the prospect of Australia breaching its non-refoulement obligations.

Course of the appeals

52    The Minister filed notices of appeal in this Court from the decisions in FAK19 and CZW20 on 4 September 2020 and 21 October 2020 respectively. The proceedings were listed together for hearing before a bench of five judges of this Court, on the basis that the Minister had advised that he intended to challenge the correctness of the decisions in Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 and Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12.

53    On 30 March 2021, Gordon J made orders referring Plaintiff M1/2021 v Minister for Home Affairs to a full bench of the High Court to be heard by way of a Special Case. Plaintiff M1 raises the same point of principle raised in CZW20 and FAK19, and is likely also to raise the correctness of Ali.

54    On 12 May 2021, the Minister filed an interlocutory application in each appeal seeking orders that the proceeding be held in abeyance pending the outcome of Plaintiff M1. Each interlocutory application was accompanied by an affidavit of Hervee Dupont Dejean affirmed on 10 May 2021 explaining the relevance of Plaintiff M1 and annexing documents filed in the High Court in that proceeding. The interlocutory applications were listed for hearing before Allsop CJ on 21 May 2021. On that date, prior to the time of the listing, the Minister’s representatives advised the Court that the parties had reached agreement on the interlocutory applications and provided proposed consent orders dismissing the applications.

55    The appeal bench was reconstituted by the Chief Justice to a bench of three judges, in light of the legal issues being referred to a full bench of the High Court in Plaintiff M1.

56    Two counsel in CZW20 accepted a referral under r 4.12 of the Federal Court Rules 2011 (Cth), to appear pro bono on behalf of CZW20. FAK19’s counsel appeared on a conditional fee basis. The Court expresses its gratitude to both sets of counsel for their assistance to the Court in representing CZW20 and FAK19.

Issues on the appeals

57    There were legal issues common to both appeals, but there were also some discrete grounds of challenge in FAK19.

The common legal issue

58    Each of the judicial review challenges at first instance in CZW20 and FAK19 turned on consideration by a decision maker of whether a visa holder was a person who engaged Australia’s international non-refoulement obligations and, if so, what legal role this fact played in the performance by the decision maker of the task of deciding whether to cancel the visa held by the person, or to revoke the cancellation of a visa held by that person.

59    The issue has been considered in a number of decisions of this Court, Ali being one of them. The issue can arise in the exercise of various powers in Div 2 of Part 9; and the parties’ respective contentions addressed whether the nature of the power being exercised might lead to different approaches and outcomes in terms of what the law required of a decision maker.

Other legal issues in FAK19

60    On the appeal, through a notice of contention, FAK19 raised two other legal issues. The first was a challenge to the finding of the Tribunal that the fact that FAK19’s circumstances engaged Australia’s non-refoulement obligations should be given less weight because FAK19 was able to apply for a protection visa and have those issues addressed during that process. The second was a contention relying on the reasons of Kenny and Mortimer JJ in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55. FAK19 contended that the Tribunal erred in its response to his contention that he was likely to be indefinitely detained – specifically, the Tribunal’s finding that his detention would not be “indefinite”, because s 198 of the Act, read with s 197C, imposes an obligation to remove FAK19 from Australia as soon as reasonably practicable.

The parties’ arguments in summary

CZW20

The Minister

61    The Minister did not press ground 3 of the appeal in CZW20. In summary, on grounds 1 and 2 he made three principal submissions.

62    First, the Minister submitted that the primary judge erred in finding the Minister had misunderstood the operation of the Act. The Minister was correct to understand that if CZW20 made an application for a protection visa, consideration would be given to whether CZW20 is a person in respect of whom Australia owes non-refoulement obligations and any determination that he is such a person would have “equivalent significance as it would have if the Minister made that determination in exercising the discretionary power in s 501(3) of the Act”.

63    The Minister next contended that the primary judge erred in not distinguishing Ali on the basis that it concerned a different power – namely s 501CA(4)(b)(ii) – conditioned by the affected person’s ability to advance “reasons” for the revocation of a visa cancellation. In contrast, the cancellation power in s 501(3) was quite different in content and structure.

64    Finally, the Minister contended that the primary judge erred in finding any misunderstanding by the Minister about the operation of the Act as described above went to the Minister’s jurisdiction to exercise the power. This submission in particular challenged the correctness of Ali and Ibrahim.

CZW20

65    CZW20 submitted Ali and Ibrahim were correct, as was BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456, a decision CZW20 submitted the Minister did not adequately confront in his arguments. He submitted that there was no basis in principle to distinguish between the various powers exercised by the Minister (or a delegate) where this issue might arise, nor was there any factual basis to distinguish what he submitted is now a considerable line of authority supporting the reasoning of the primary judge, because the way the reasons were expressed in each case by the decision maker are substantively similar. CZW20 submitted that the application of this line of authority to the Minster’s decisions in this proceeding reveals the same character of error as identified in Ibrahim and Ali, being an error which is jurisdictional.

FAK19

The Minister

66    There were four grounds of appeal pressed by the Minister. The third submission put by the Minister in CZW20 (concerning whether the error is jurisdictional and the correctness of Ali and Ibrahim) was also put on this appeal, and is ground 3 in the Notice of Appeal. In addition, the Minister made two further contentions, which are similar to those put in CZW20 but more closely reflect the way the reasoning of the primary judge in FAK19 is expressed. First, there was no error in the Tribunal treating as “synonymous” any consideration of non-refoulement obligations with the fulfilment by FAK19 of the criteria for the grant of a protection visa under the Act. In those circumstances, the primary judge erred in finding the Tribunal did not give genuine consideration to representations that FAK19 made about non-refoulement. This contention is covered by grounds 1 and 2 of the Notice of Appeal.

67    Second, there was nothing erroneous in the Tribunal assuming that non-refoulement would be more fully explored in the course of consideration of any protection visa application, and thus placing less weight on FAK19’s representations on that point. This reasoning did not misunderstand the operation of the Act, nor was it irrational. This contention is covered by ground 4 of the Notice of Appeal, and by ground 1 of the notice of contention.

68    On the notices of contention, the Minister submitted that the first ground proceeds on a false premise that the Tribunal somehow discounted, or diminished, the weight to be given to non-refoulement because of the availability of the protection visa process. The Minister submitted that the primary judge was wrong to find that had occurred. In fact, the Tribunal found that the existence of non-refoulement obligations to FAK19 was a matter which “weigh[ed] heavily in favour of revoking the cancellation” and was a “significant” factor.

69    As to the second ground in the notice of contention, the Minister submitted that the Tribunal did consider the possibility of indefinite detention of FAK19, as it was a matter he had raised. Properly understood, the Minister submitted that the Tribunal’s reasons disclose it approached its consideration with an understanding of indefinite detention as detention with “no possible endpoint”, which is how the Minister submitted FAK19 was using the term in his representations. It was detention of that nature which, as a matter of fact finding, the Tribunal rejected, because it found FAK19 would be detained within the terms of s 196 of the Act and would therefore be removed “as soon as reasonably practicable”, which may or may not include after the conclusion of any protection visa application process, if FAK19 applied for such a visa.

FAK19

70    On the appeal, the submissions of FAK19 supported the reasoning of the primary judge, and also adopted the submissions made by CZW20 about the correctness of Ali, Ibrahim and BCR16, and their application to the decision under appeal. He submitted the Tribunal had failed to distinguish between the way the concept of non-refoulement obligations arose, and was relevant to, a revocation of cancellation decision, and the different way in which it might be considered in a protection visa application process. He submitted the primary judge was correct to find the Tribunal had failed to “grapple with and decide the question of whether breach by Australia of its international law obligations was a reason to revoke the cancellation decision”.

71    FAK19 emphasised that as in Ali, the Tribunal was required to consider the consequences of FAK19’s removal to Afghanistan for Australia – that is, to “consider the breach of international non-refoulement obligations qua breach of international obligations”, and the primary judge was correct to find it had not done this.

72    On the notice of contention, and as to the first ground, FAK19 submitted that the Tribunal’s reasons, read fairly and in context, demonstrated it had accepted the Minister’s invitation put to it in submissions to place less weight on non-refoulement. This was apparent, FAK19 submitted, from the qualification in the Tribunal’s finding after the part about attaching significant weight to this issue, namely:

but I note that the applicant has the opportunity of applying for a Protection visa at which time claims as to non-refoulement obligations will be more fully explored…

(Emphasis added by FAK19.)

73    The “but” is, FAK19 submitted, important and indicates the diminution of weight by the Tribunal, and acceptance of the submissions put by the Minister to the Tribunal. The attribution of less weight was irrational and illogical, FAK19 submitted, and that error was material.

74    On the second ground, reasoning by reliance on WKMZ, FAK19 submitted the Tribunal misunderstood or misapplied the legal operation of the Act and the relevant Ministerial Direction (Direction 79) or, alternatively, erred in its consideration of representations advanced by FAK19. He submitted that the Tribunal’s reasoning indicates an acceptance of the Minister’s submissions put to it that cl 14.1(6) – which explicitly contemplated the prospect of indefinite detention – should be ignored by the Tribunal. In its fact finding, the Tribunal misapplied Direction 79 by dismissing indefinite detention as something that could not occur, when “indefinite detention” is understood in the way described by Kenny and Mortimer JJ in WKMZ. Further, FAK19 submitted the Tribunal did not meaningfully engage with or address FAK19’s representations about the effect that indefinite detention (understood in the sense employed in WKMZ) would have on him and his family, despite particular and specific evidence about this, relating especially to his elderly parents here in Australia.

Resolution

Ali is correct

75    The Minister’s submissions about Ali emphasise certain language in parts of the Full Court’s reasons which does not fairly reflect the overall approach taken by the Full Court. The overall approach in Ali is consistent with previous decisions of this Court, and there is no basis to depart from it.

76    As the Full Court explained in Ali, there is ample authority for the proposition that although s 501CA(4) does not impose an express obligation on a decision maker to “consider” representations made for the purpose of identifying “another reason” why the visa cancellation should be revoked, the context and purpose of the provision, together with the text which imposes a duty to invite such representations, indicate that there is a statutory obligation on the Minister to engage, in an active intellectual sense with the representations: see Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [35]-[37], and the authorities there cited.

77    To describe the task, as Colvin J did in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [67], as being that in “order to properly discharge that obligation, the Minister must not overlook the representations” is functionally equivalent to characterising the representations as a whole as a mandatory relevant consideration, even if one characterises it (as Colvin J does at [72]) as a “breach of the statutory requirement to consider the representations”. There is a point at which these questions of characterisation become somewhat academic, because they are simply different ways of articulating what the statute requires for a valid exercise of power.

78    There is no substantive (as opposed to semantic) difficulty in the conclusion that properly construed, the statutory scheme requires the representations as a whole to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40. We respectfully agree with the observations of Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56]. They were endorsed in Omar at [34(e)] and this proposition is now beyond doubt. To say as much is not to elevate to the character of mandatory relevant consideration every factual assertion made in the representations, which is a proposition also made clear in Omar at [34(e) and (h)]. This in turn leads to the proposition that:

The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.

See Omar at [34(g)].

79    Whether or not this is precisely the characterisation set out in Ali at [44] is not a matter which should lead, in our respectful opinion, to any conclusion that the overall approach in Ali is wrong. It is true the passage at [44] (and that at [45]) tend to employ the language of considerations in relation to individual representations made by a person whose visa has been cancelled. However, this language should not obscure the fact that the Full Court was, in substance, seeking to adhere to what had by the time of its decision become a considerable line of authority in this Court about the jurisdictional constraints on the Minister’s statutory task under s 501CA(4) in considering representations made about “another reason” to revoke a visa cancellation. So much is plain from what is incorporated into [46] of the Full Court’s reasons in Ali, as well as the Full Court’s reference to DGI19 v Minister for Home Affairs [2019] FCA 1867 and BCR16.

80    Ali is correctly decided, and the Minister’s challenge to it should be rejected.

Ibrahim is correct

81    There was much less focus in the Minister’s written and oral submissions on Ibrahim, as counsel for CZW20 pointed out. The only specific references to Ibrahim, where the Full Court’s decision was impugned separately to Ali, were at [46] of the Minister’s written submissions in CZW20’s proceeding, where reliance on propositions about the need to proceed on a “correct understanding of the law” were said not to “advance matters”, because of their generality and because they can be taken out of context.

82    We do not accept the Minister’s submissions on this specific aspect of Ibrahim. In Ibrahim this proposition did assume some prominence in the Full Court’s reasons, commencing at [52] where the Full Court said:

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.

83    The Full Court then referred to a number of other authorities where this proposition had been adopted, including Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119, Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [189] and [196]; Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [33] and Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [68]. In Ibrahim, the Full Court applied these principles to three different “misunderstandings” articulated in the three grounds of appeal. For present purposes it is the reasoning on the third ground of appeal, concerning non-refoulement obligations, which is most relevant. At [106]-[113], the Full Court explained why it found several misunderstandings about this matter arose in the Minister’s reasons in that appeal, and concluded (at [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.

84    As we understood the Minister’s submissions on this appeal, despite submitting Ibrahim was also wrongly decided, the Minister did not attempt to impugn this reasoning in Ibrahim as much as encourage this Court to set it to one side, on the basis that it does not assist the arguments. In our opinion this submission should also be rejected. Contrary to the Minister’s submissions, more may well be required than a decision maker expressing an accurate understanding of the provision which confers the precise power to be exercised. These matters will depend on context, but certainly in a legislative scheme such as the Migration Act, and in that part of the scheme dealing with the exercise of powers which change the status of a person from a lawful to an unlawful non-citizen (or could restore the status of lawful non-citizen), a decision maker should have a correct understanding of the impact of the wider legislative scheme on the precise power being exercised.

85    The primary judge in CZW20 made similar observations (at [26]-[28]) to those in Ibrahim, and they are in our respectful opinion relevant to the issues on this appeal, contrary to the Minister’s submissions. Discretionary powers such as those which exist in relation to cancellation of visas, and powers to revoke cancellations, in Div 2 of Part 9 do require a correct understanding, by the repository of these powers, of how other aspects of the same legislative scheme operate. That is because they are being exercised in circumstances where a variety of other aspects of this legislative scheme will operate on the person affected, as legal consequences of an individual’s status as either a non-citizen with a visa, or a non-citizen without a visa. Those include the mandatory detention aspects of the legislative scheme, the removals processes, and what have been described by the High Court as the “dispensing powers”: see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180.

86    Where, as in all the cases currently under consideration, a decision maker elects to rely on another aspect of the same legislative scheme as not only relevant to the exercise of discretionary power, but as influencing the way in which the decision maker proposes to exercise it, that reliance must reflect a correct understanding of the legislative scheme. Otherwise, as the High Court observed in Graham, what occurs is a purported but not real exercise of power because it proceeds on a misconception. It matters not whether the misconception concerns the discretionary power itself, or another aspect of the legislative scheme: what matters is the connection between the aspect of the legislative scheme and the impugned exercise of power. That connection may exist objectively because of the nature of the discretionary power and its legal consequences (NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1) or it may exist subjectively because of the decision maker’s reliance on another aspect of the legislative scheme (in these cases, being s 65 and s 36). In both cases, the decision maker must correctly appreciate how the legislative scheme operates, because the correct understanding is the framework which conditions the exercise of power: it is the framework Parliament has set and the context in which it has authorised the exercise of power to occur.

87    Nothing was said orally about Ibrahim that was distinct from the submissions about Ali, notwithstanding that the Court’s reasons in Ibrahim do not employ the same “considerations” language as that found at [44] and [45] in Ali. This was a point made in argument by counsel for CZW20 and FAK19, and it was with respect correctly made.

88    Further, in DGP20 v Minister for Home Affairs [2020] FCA 1055 at [35], not only did Moshinsky J adopt a similar approach (which itself was endorsed in CZW20), but as to the correctness of these principles, his Honour observed:

There does not appear to be any dispute between the parties on this point.

89    See also DOB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1748.

90    Ibrahim is correctly decided, and the Minister’s challenge to it should be rejected.

Applicant S270 does not “overrule” Ali or Ibrahim, or BCR16

91    We do not accept the Minister’s submissions that the decision in Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897 requires this Court to find that even if the Minister’s reasons disclose the three misunderstandings found by the primary judge, none of those errors go to jurisdiction, and to the extent that Ali and Ibrahim (and, it is to be assumed, BCR16) hold to the contrary, they have been overruled.

92    Applicant S270 concerned the power in s 501CA(4), and a situation where the appellant had made no claims which could have engaged Australia’s non-refoulement obligations, and had not put such matters forward as “another reason” the Minister should decide to revoke his visa cancellation. Nonetheless, the appellant contended this factor was a mandatory relevant consideration, and the Minister’s failure to consider it vitiated his decision. It was that submission which was rejected. At [26] Nettle, Gordon and Edelman JJ said:

The key question is whether the Minister was required to consider whether Australia owed non-refoulement obligations to the appellant as “another reason” under s 501CA(4)(b)(ii). The answer is no.

93    Immediately, the contrast with the present decision is apparent. As with some of the other submissions put to the Court, the Minister’s submissions do not engage with the different nature of the error identified by the primary judge, and by the Courts in Ali, Ibrahim and BCR16.

94    Their Honours explained their conclusion at [26] further, with an important qualification at [33]:

Although mandatory relevant considerations may be identified by reference to the text, subject matter, scope and purpose of the statute, there is nothing in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim.

(Emphasis added.)

95    A similar qualification is made in [34], and their Honours then state, with a footnote reference to BCR16:

It is unnecessary to decide, however, whether consideration of that matter can be deferred where a non-refoulement claim is made in a revocation request.

96    While it can be accepted that earlier in [34] and [35] there are observations where their Honours appear to equate the domestic protection visa regime with the international obligations contained in treaties such as Art 33 of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugees Convention), the matters which have occupied Full Courts of this Court in great detail, concerning the differences between the protection visa criteria and non-refoulement, were not considered in Applicant S270. We infer that is because of what is said in [34], extracted above. Further, the entire argument in Applicant S270 was couched in terms of mandatory considerations, which may explain the language in [35], on which the Minister relied.

97    Finally, there is no reference at all in the High Court’s reasons to overruling any of Ali, Ibrahim or BCR16, and instead there is a specific distinguishing reference to BCR16 in the footnote to [34], making it plain their Honours considered the “deferment” issue quite a separate issue.

98    The primary judge in CZW20 was correct (at [30]) to reject this contention.

No distinction in principle between s 501CA(4) and other discretionary powers

99    We do not accept the Minister’s submission that Ali, Ibrahim and BCR16 are distinguishable because the nature of the power in s 501(3) is substantively different. The misunderstandings identified by the primary judge do not depend upon the existence of any obligation to consider representations made by a person, such as that in s 501CA(4) of the Act.

100    Nor do the errors involve any failure to afford procedural fairness. As CZW20 submitted, Ibrahim itself did not involve a power (s 501BA(2)) which was expressed not to be conditioned by procedural fairness obligations.

101    The Minister submitted in CZW20 that because the existence, and/or possible contravention of, international non-refoulement obligations was not a matter the Minister was required to consider, any error in considering that factor cannot go to jurisdiction. He relies on Snedden v Minister for Justice [2014] FCAFC 156; 230 FCR 82. The relevant passages in Snedden concern whether a different set of international obligations were a mandatory relevant consideration in the exercise of the power in s 22 of the Extradition Act 1988 (Cth). Middleton and Wigney JJ said at [164] (in a passage with which Pagone J agreed):

Here, if there was an error about Australia’s international obligations having regard to Art 129 of the Third Geneva Convention, it was an error within jurisdiction. That is so whether or not it was an error of law and whether or not it influenced, in some way, the exercise of the Minister’s broad discretion conferred by s 22(3)(f). Any such error did not concern any of the enumerated mandatory considerations in s 22(3) and did not become a mandatory consideration even if the Minister in some way considered or took it into account in the exercise of his discretion. It did not involve or result in the Minister identifying any wrong issue, question or test that went to the scope or nature of the power being exercised. It was not jurisdictional.

102    In contrast, the Minister’s misunderstandings of both the power he was exercising (the third misunderstanding) and core aspects of the legislative scheme on which he placed reliance in refusing to embark on any consideration of Australia’s non-refoulement obligations to CZW20 (the first and second misunderstandings), were matters which went to the scope and nature of the power he was exercising, for the reasons set out above in relation to Re Patterson. There was no considerations argument put to the primary judge, which renders the reasoning in Snedden distinguishable. The same is true of the decision in Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56, on which the Minister also relies.

103    Further, as CZW20 submitted, his case is not that the Minister had misunderstood a treaty (as was the case in Snedden). It was that in exercising his discretion the Minister had misunderstood the Act or its operation, or had reasoned irrationally. Although the primary judge did not base his conclusions on the alternative irrationality characterisation advanced by CZW20 (see [38]), that characterisation was in our respectful opinion plainly open, given the nature of the misunderstandings.

“Plainly wrong”

104    Given the conclusions we have reached, it is not strictly necessary to consider the appropriate threshold for a Full Court of this Court departing from a previous Full Court decision. However, since the matter was fully ventilated and regularly confronts differently constituted Full Courts in the migration jurisdiction of this Court, we accept it is appropriate to address it. We respectfully agree with what the Chief Justice has said on this matter, and with his Honour’s observations about the differences between benches constituted in the appellate jurisdiction by one and three (or five) judges respectively, and benches constituted in the original jurisdiction by three judges.

CZW20: The primary judge’s reasoning is correct and CZW20’s submissions should be accepted

105    As we have noted, the material exercise of power which is challenged is the cancellation power in s 501(3), and the Minister’s reasons correctly identify the three aspects he needed to consider. First, whether he suspected CZW20 did not pass the character test. Second, why the Minister was satisfied cancellation was in the national interest. Third, those preconditions having been met, the Minister then explained why he considered as a matter of discretion that CZW20’s visa should be cancelled.

106    At [99] of his reasons the Minister explained that he

considered whether there were relevant considerations that might support a decision not to cancel [CZW20’s] visa despite my satisfaction that it is in the national interest to do so.

107    The Minister identified, at [106]-[110], that “International non-refoulement obligations” were one of these considerations. He explained his reasons in the following terms:

[CZW20] is a national of the Republic of South Sudan who arrived in Australia on 27 November 2008 as a dependant on his mother’s Class XB Subclass 200 Refugee visa.

I considered the Department of Foreign Affairs and Trade (DFAT) Country Information Report for South Sudan, and I note that the political situation in South Sudan is unstable, and DFAT assesses the humanitarian situation in South Sudan as dire. I am aware the DFAT information indicates ongoing political and ethnic conflict in South Sudan. I have taken into account that [CZW20’s] circumstances, including his Christian religion and Dinka ethnicity, may give rise to international non-refoulement obligations.

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) requiring 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 consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.

In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of [CZW20] for the purposes of the present decision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

108    As CZW20 submitted, in terms of form and language, these reasons are essentially the same as the reasons in Ali. Similar reasons were also given by the decision maker in Ibrahim, BCR16 and DGI19.

109    Before the primary judge, CZW20 had identified three misunderstandings which he submitted were apparent in the Minister’s reasons: see the grounds of review extracted at [11] of the primary judge’s reasons. We have summarised those three misunderstandings at [39]-[42] above.

110    In argument on the appeal, the first misunderstanding was described in argument by counsel for CZW20 as the “conflation” argument. That is, conflating both the concept of Australia’s international non-refoulement obligations with the criteria prescribed in the Act for the grant of a protection visa, and conflating what was in issue, or at stake, in considering a contravention of Australia’s international obligations with what was in issue, or at stake, in considering whether a person might satisfy the criteria for the grant of a protection visa. This was identified as a jurisdictional error in Ibrahim and Ali. It was also the error for which a ground of appeal was upheld in DGP20 (see [32]-[45]) and in DGI19 (see [69]-[85]).

111    There are very many other decisions of this Court which have applied these principles: see [16] of the Chief Justice’s reasons on this appeal.

112    The second misunderstanding involved an incorrect assumption about what matters would necessarily be addressed in any protection visa application process, and therefore whether that process could be seen as an adequate substitute for any consideration of international non-refoulement in the revocation or cancellation process. The role of Direction 75 in the Minister’s decision making forms part of the argument about this misunderstanding.

113    This misunderstanding was identified in BCR16, and in Ali, but its application was rejected by Moshinsky J in DGP20, applying his Honour’s own decision in DGI19: see DGP20 at [52], referring to [39]-[44] in DGI19. In rejecting the proposition that the Minister’s reasons in the case before him disclosed any such misunderstanding, Moshinsky J found (at [41]-[43]):

In my view, these submissions should not be accepted. First, I consider the correct construction of the first direction in Direction 75 to be that an applicant’s refugee and complementary protection claims must be considered. This flows from the use of the word “first” in the first direction in Direction 75 (see [31] above). It is supported by the context in which Direction 75 was introduced, namely in response to the decision of the Full Court in BCR16.

Secondly, contrary to the applicant’s submissions, the Minister did not state that the applicant’s claims would “necessarily” be considered in the event that he were to make an application for a protection visa. Rather, the Minister stated that it was “highly likely” that any protection visa application would be considered by a delegate, and that, in such a case, non-refoulement obligations would be considered in the course of processing the application. The Minister also referred, at [29], to the possibility that the Minister, rather than a delegate, may consider any protection visa application, in which case, it was possible (albeit unlikely) that the policy approach set out in Direction 75 may not be followed.

Thirdly, insofar as the Minister referred to the Department’s practice in processing visa applications, as reinforced by Direction 75, I consider that the Minister was not asserting any conclusion of law about the process applicable to any protection visa application the applicant might make; the Minister was, instead, setting out propositions of fact about the process: Sowa v Minister for Home Affairs [2019] FCAFC 111 at [47] per Jagot, Bromwich and Thawley JJ; see also (in the context of a decision under s 501BA of the Migration Act) DOB18 at [165] per Robertson J (with whom Logan J generally agreed). The Minister’s statements regarding the manner in which any future protection visa application would be considered did not, therefore, evince an incorrect understanding of the law.

114    The third misunderstanding is the failure to understand the different roles to be played by this consideration in an exercise of discretionary power such as that in s 501(3) (or for that matter the power in s 501CA(4)), as contrasted with the binary duty in s 65 of the Act (to which the s 36 protection visa criteria relate). This misunderstanding was identified in BCR16, Ali, and Ibrahim. It was not decided by Moshinsky J in DGP20: see [50].

115    The primary judge accepted all three misunderstandings were apparent in the Minister’s reasoning about CZW20’s case. His Honour relied principally on the analysis in Ali for the first and third misunderstandings: see [19]-[20].

116    In our respectful opinion, the primary judge’s findings were correct.

First misunderstanding

117    On the first misunderstanding, it is plain on the face of the Act that there are statutory modifications to the approach at international law as to which circumstances will lead to a person falling within Art 1A of the Refugees Convention, and thus also gaining the protection of Art 33, the non-refoulement obligation.

118    Those modifications include:

(1)    The modification (or abrogation) of the internal relocation principle: s 5J(1)(c);

(2)    The behaviour modification requirements as a qualification to when a person will have a well-founded fear of persecution: s 5J(3);

(3)    The imposition of a burden of positively satisfying a decision maker that conduct engaged in since arriving in Australia was not for “the purpose of strengthening the person’s claim to be a refugee: s 5J(6);

(4)    The modification of the social group basis, by instructing decision makers to disregard certain matters relating to an applicant’s family: s 5K;

(5)    The codification and narrowing of the social group characteristics: s 5L; and

(6)    The codification and narrowing of what will constitute effective protection so as to deny refugee status: s 5LA (especially s 5LA(2)(c)).

119    Also apparent in relation to all aspects of the determination whether a person is a refugee for the purposes of s 36(2)(a) is the express exposition in the text of the Act of the core elements of refugee status. Whereas prior to 2014, the statutory criterion for a protection visa referred to satisfaction of Art 1A of the Refugees Convention, s 36(2)(a) was amended to remove the reference to the Convention. The explanatory memorandum to these amendments stated the purpose of doing so was to replace most references in the Act to the Refugees Convention with a “new statutory framework” that articulates “Australia’s” interpretation of its protection obligations under the Refugees Convention.

120    Whether or not that legislative objective has been achieved is not a matter for determination on this appeal. Nevertheless, in both the text and context of s 36(2)(a) and the statutory modifications to which we have referred above (as well as s 5H itself), there is demonstrated an intention to move decision making about protection visas away from the international framework, at least as the first point of reference. The international framework is, however, the only location for any assessment of non-refoulement obligations themselves. It is that international framework which is the subject of the Minister’s reasons, and of Direction 75. As the Full Court in Ali noted (at [105]) about the Assistant Minister’s reasons in that case, in the decision about CZW20 the Minister’s use of the phrase “international non-refoulement obligations” is a clear indication of some consciousness of a different framework, before the conflation which then followed. Indeed the Minister expressly states (at [107] of his reasons):

I have taken into account that [CZW20’s] circumstances, including his Christian religion and Dinka ethnicity, may give rise to international non-refoulement obligations.

121    However, from this point onwards, as the primary judge held, the Minister’s reasons in CZW20’s case demonstrate the same conflation identified in Ali and Ibrahim. Specifically, the finding (at [110] in the Minister’s reasons) that “non-refoulement obligations would be considered in the course of processing the [protection visa] application”. This is clear evidence of the first misunderstanding identified by the primary judge, and flowing from Ali and Ibrahim.

122    In Plaintiff M70/2011 v Minister for Immigration and Citizenship (The Malaysian Declaration Case) [2011] HCA 32; 244 CLR 144 at [94], in describing the qualifications on the removal power contained in s 198 of the Act, the plurality described the fundamental content of Art 33 of the Refugees Convention as it (at least then) conditioned s 198:

The second and more relevant qualification is that Australia (and any other party to the Refugees Convention and the Refugees Protocol) would act in breach of its international obligations under those instruments if it were to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” ([Refugees Convention, Art 33(1)]). 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.

123    In CZW20’s case, the Minister had found two possible Refugees Convention grounds might apply to him and engage these obligations: religion and ethnicity (which may come under race or social group). Yet the Minister did not ask himself the question posed by that factual finding, because he reasoned it was “unnecessary to determine”, given the ability to apply for a protection visa. That conflated the wider exercise required by Art 33, as set out in Plaintiff M70, with the more specific and constrained statutory criteria for the grant of a protection visa. Secondly, it conflated the question of CZW20’s eligibility under a domestic visa process with the national interest issues arising from the potential removal of a person who, at international law, engaged Australia’s obligations under Art 33 (or the equivalent provisions in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT) and the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR)).

124    In other words, if CZW20’s circumstances did engage Australia’s non-refoulement obligations, how might the cancellation of his visa and his potential removal contrary to those obligations reflect on Australia’s international standing and reputation? What view did the Minister take of whether it was appropriate for there to be a potential inconsistency between Australia’s international obligations to CZW20 and the Minister’s discretionary exercise of power? The point to be made is that the Minister did not pose these questions for himself, and confront them. As to the importance of decision makers confronting the realities of their decision see Omar at [37], referring to Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3]. The point is not what the answers might have been. As to consideration of the possible reputational impact, see Hernandez v Minister for Home Affairs [2020] FCA 415 at [63]; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [224]; Ali at [47], [91].

125    In Ali at [28] and [92] the Court recorded the following about the Minister’s position on that appeal:

Ultimately, it was not contended on behalf of the Minister that s 36(2) of the Act accorded a coverage of protection which was coterminous with that which Australia had covenanted to provide under the international treaties into which it had entered. The necessary consequence is that its international obligations of non-refoulement extend to refraining from relocating a class of persons which is wider than those to whom protection visas might be granted under the Act.

It was also very properly acknowledged by Mr Hill for the Assistant Minister that Australia’s international obligations of non-refoulement extend to a wider range of persons than those who are eligible for a protection visa by reason of s 36(2)(a) and (aa). That concession was consistent with the authorities which have been referred to above.

126    It is difficult to see how the Minister’s criticism of other aspects of the Court’s reasoning in Ali affects what is recorded in these paragraphs.

Second misunderstanding

127    On the second misunderstanding, the primary judge found (at [21]):

I also accept the applicant’s contention that the Minister erred because he adopted the second misunderstanding as identified in the amended originating application.

(a)     In Ali, the Full Court accepted that Direction 75 “only requires the delegate to consider the ineligibility criteria under s 36(1C) and 36(2C) after the protection grounds” and “[i]t will not prevent an applicant’s visa application being rejected on health grounds (cl 866.223 – 866.224B of Sch 2 of the Regulations), the public interest criteria (cl 866.225 of Sch 2 of the Regulations) or the national interest criteria (cl 866.226 of Sch 2 of the Regulations) before the protection criteria are considered” ([58(b)]). Thus, Direction 75 does not require decision-makers to consider the “protection” criterion in sections 36(2)(a) and (aa) before all other criteria for a protection visa (only the “ineligibility” criteria and section 501).

(b)     It follows that, if the applicant applied for a protection visa, then his application might be refused on the basis that he fails to satisfy a “non-protection” criterion, and the decision-maker might never even consider s 36(2) of the Act. Indeed, given that the Minister personally has already assessed that it is not in the “national interest” that the applicant have a visa, it seems likely (if not inevitable) that a delegate or the Tribunal would not be satisfied that the applicant satisfied the “national interest” criterion. And, of course, if the delegate or the Tribunal considered this first, no occasion would arise for it [it] to consider the “protection” criteria in s 36(2).

128    This is a different basis to the reasons given by Moshinsky J in DPG20 for rejecting this argument.

129    We respectfully agree with the reasons of the primary judge on this matter. In particular, it would be irrational for a decision maker to determine the national interest criterion in cl 866.226 of Sch 2 of the Migration Regulations 1994 (Cth) was satisfied when the Minister had in respect of the same applicant exercised a personal power which has the national interest as one of its preconditions, and where the Minister found:

I consider that matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of it. I also find that matters of national interest include a consideration of the risk of the person reoffending, the increase in the risk of reoffending where the person has links to youth gangs, and the harm posed to the Australian community if such a risk eventuated.

…

[CZW20] is a recidivist offender with a serious criminal history which is relatively recent, that includes his engaging in disrespectful, and at times violent, conduct toward law enforcement officers. I also took into account his poor progress to rehabilitation, the extensive number of breaches of judicial orders, his links to other criminals and youth gang members, and his continuing to attract the attention of law enforcement and receive criminal pending charges. I also gave careful consideration to the advice of Victoria Police who state that [CZW20’s] offences ‘are of a violent, anti-social and concerning nature and clearly show no respect for authority or any orders imposed by the courts’.

I also took into account factors that may lower [CZW20’s] risk of reoffending, including the positive comments made by His Honour on [redacted] in relation to [CZW20’s] presentation in court; that [CZW20] had ‘been very quiet in custody’ and that [CZW20] recorded no behavioural concerns and was not resistant to being spoken to when he was last at [redacted]. I also considered that although [CZW20] first came to the attention of police in 2012, he did not record a conviction until 2015, more than six years after his arrival in Australia.

Overall, I find that there is an ongoing risk that [CZW20] will reoffend if he is permitted to remain in Australia.

I considered the potential harm to the community if [CZW20] reoffends involving violence, sexual offending or dishonesty. I find the community could be exposed to significant risk of physical, psychological and/or financial harm.

In sum, having regard to all of the above, including [CZW20’s] criminal history, the dispositions imposed by the courts, his gang and criminal links and the risk to the Australian community, I conclude that [CZW20’s] conduct is of such seriousness that it is in the national interest to cancel [CZW20’s] Class XB Subclass 200 Refugee visa.

(at [21] and [94]-[98] of the Minister’s reasons).

130    Given the Minister’s findings in exercise of a personal power, it is difficult to see how any decision maker acting reasonably could do anything but move to refusal on a criterion such as the national interest. Active intellectual engagement with criteria such as those in s 36(2)(a) and (aa) is not to be undertaken by decision makers for any kind of “show”. Nor is it sufficient to go through the motions of doing so. Consideration of those criteria has only one purpose under the statute – namely to decide in accordance with s 65 of the Act whether there is an obligation to grant or to refuse a protection visa. If another criterion will almost inevitably lead to refusal (as here, with the national interest criterion) there could be no rational basis for not dealing first with the criterion that will disqualify a visa applicant.

131    CZW20 did not challenge the Minister’s findings at [109]-[111] that it would be a delegate who was likely to deal with any protection visa application, and that the delegate would be bound by Direction 75. Assuming that to be the case, we do not consider Direction 75 has the effect of ensuring, or requiring, a delegate to examine the “protection” criteria in s 36(2)(a) and (aa) before other criteria, even if (contrary to our opinion) any such examination, as nothing more than part of a process of decision making, could be said to have any substantive effect unless a protection visa was granted.

132    Indeed, as CZW20 submitted, Direction 75 on its face requires specific non-protection criteria to be considered first, in a way applicable to him because of the offences for which he was convicted. In the “Objectives” section of Direction 75, after noting the general object of the Act, Direction 75 focuses on the intention and effect of two disqualifying criteria for a protection visa – s 36(1C) and s 36(2C)(b) – in relation to refugee and complementary protection respectively. These are the disqualifying criteria about whether the Minister (or delegate) considers on reasonable grounds whether a person is either a “danger to Australia’s security” or, having been convicted of a “particularly serious crime” is a “danger to the Australian community”. The term “particularly serious crime” is defined in s 5M, read with s 5(1) where the definition of “serious Australian offence” is found:

5    Interpretation

(1)    In this Act, unless the contrary intention appears:

…

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.

…

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; or

(b)    a serious foreign offence.

133    Clause 6 of the “Objectives” section states that the purpose of Direction 75 is to direct decision makers to refuse a protection visa based on these disqualifying criteria rather than s 501 if a person falls within the disqualifying criteria. Clause 5 of the “Objectives” section states:

Sections 36(1C) and 36(2C)(b) reflect the Government’s intention that regardless of whether other criteria for the grant of a visa are met, a person who poses a danger to Australia’s security or to the community should not be granted a Protection visa.

134    Under the heading “General guidance”, Direction 75 then states:

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.

135    It is clear that “ineligibility grounds” does not refer to s 36(1C) or s 36(2C)(b), but rather to other matters such as health criteria.

136    Under “Principles”, the Direction states:

l)    Australia has a right to determine whether non-citizens who present serious character or security concerns should be granted a visa, including a Protection visa.

2)    The Australian community expects that the Australian Government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having have been convicted of a particularly serious crime in Australia or elsewhere, or present a danger to Australia’s security.

3)     It is unacceptable to grant a Protection visa to a non-citizen who is considered to present serious character or security risks to the Australian community.

4)    Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia.

137    Clause 4 should be noted. Whatever the meaning and effect of s 197C, before or after its amendment, what this “Principle” reiterates is that the question of what decisions should be made about a person in order to ensure Australia does not contravene its international non-refoulement obligations is quite separate from the refusal of a protection visa. Direction 75 itself confirms that a decision about a protection visa under s 65 may take the question of how non-refoulement obligations are to be observed no further at all.

138    Of course, the situation is otherwise if a protection visa is granted to a person. One of the consequences of the grant of a protection visa is – taking the Refugees Convention as an example – effective compliance with Art 33, at least for so long as the visa is in force (cf Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53; 231 CLR 1). However, it is only the grant of a protection visa which ensures that Australia’s international non-refoulement obligations are dealt with in the protection visa process: see Omar v Minister for Home Affairs [2019] FCA 279 at [60].

Third misunderstanding

139    The error identified in BCR16 is set out at [48]-[49] and [73]. It is necessary only to set out part of [48]:

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.

140    On the third misunderstanding, a correct appreciation of the cancellation power in s 501(3) involves understanding that there is a wide residual discretion not to cancel a visa, even if the two preconditions (character and national interest) are met. The width of this discretion is not expressly confined by s 501 itself, nor by the legislative scheme. Plainly there are the usual implied restrictions that the discretion must be exercised consistently with the scope, subject matter and purpose of the provision.

141    Since visa cancellation will render a person an unlawful non-citizen and liable to first, detention under ss 189 and 196, and, second, removal under s 198, the question of what might happen to an individual on any removal, and what Australia’s international obligations are in relation to the removal of people from Australia, are clearly matters within the permissible range of considerations in the exercise of the power. The Minister recognised this in his reasons.

142    What the Minister’s discarding of substantive consideration of any potential engagement and contraventions of Australia’s non-refoulement obligations indicated however, was that the Minister misunderstood the role of this factor in the exercise of his residual discretion. The Minister correctly understood this factor was neither a precondition, nor a criterion. It was a factor to be weighed by the repository of the power, along with other factors. Its role in that weighing exercise was functionally different from a delegate (let it be assumed) forming a state of satisfaction about the now statutory elements of the definition of refugee in s 5H of the Act.

Conclusion on CZW20

143    The Minister has not established error in the decision of the primary judge. To the contrary, the primary judge’s decision was, with respect, plainly correct.

FAK19: some of the Minister’s submissions should be accepted however the primary judge was correct to find jurisdictional error in one respect

144    Before the primary judge there was no dispute that FAK19 was, in his review before the Tribunal, a person in respect of whom Australia owed non-refoulement obligations under international law: see [27] of the primary judge’s reasons. Her Honour was also satisfied that the reasoning in Ali applied to judicial review of a decision of the Tribunal, although that was not the context of Ali, which concerned a personal power exercised under s 501CA(4): see [49].

145    Her Honour then held the case for finding a positive obligation to consider Australia’s non-refoulement obligations was “stronger” than Ali because of the combined effect of s 499 of the Act and Direction 79. From [57] to [61], the primary judge explained why the Tribunal’s reasoning was “wrong footed” for four reasons:

The first reason (at [58]) was in substance similar to the first misunderstanding identified in CZW20;

The second reason (at [59]) was in substance similar to the second misunderstanding identified in CZW20;

The third reason (at [60]) focussed on a matter her Honour had highlighted in Hernandez – namely, “the consequences of the breach for Australia as a discrete reason for revoking the cancellation decision” (original emphasis); and

The fourth reason (at [61]) addressed particular reasoning of the Tribunal in this case about whether or not the removal of FAK19 wold be an “immediate consequence” of non-revocation. Her Honour found the Tribunal’s deferral of consideration of non-refoulement obligations was not justified by this finding of the Tribunal.

146    It is correct, as the Minister submitted, that in its reasons the Tribunal did spend some time in active consideration of whether FAK19’s situation engaged Australia’s non-refoulement obligations, and found (at [100] and [101]) that it did. The Minister’s criticisms of some, but not all, of the primary judge’s four reasons have force.

147    First, we accept that generally the Tribunal’s reasons disclose it understood the need actively to engage with FAK19’s representations, including concerning why his circumstances engaged Australia’s non-refoulement obligations and what would happen to him if he was removed to Afghanistan. At [89] of its reasons, the Tribunal discussed the approach set out in Omar in a way which makes it clear it understood this aspect of its task.

148    We accept the Minister’s submissions that there was no conflation by the Tribunal. This stands in contrast to the Minister’s reasoning in CZW20. Contrary to the primary judge’s reasons (at [30], [33]), the Tribunal did not treat Australia’s international obligations as “synonymous” with the criteria for the grant of a protection visa. Nor was there any conflation by the Tribunal of this factor’s role in the exercise of power under s 501CA(4) with the fulfilment of the criteria for the grant of a protection visa in s 36(2) of the Act. The Tribunal described the power the subject of its review as involving an “evaluative exercise”: see [16] of the Tribunal’s reasons. In undertaking that exercise, the Tribunal spent some time in its reasons “making an assessment” (see [90]) whether non-refoulement obligations existed in respect of FAK19. It examined his own evidence and claims, and looked in particular at the most recent Department of Foreign Affairs and Trade report. This led to its conclusion at [100] that

the applicant is owed non-refoulement obligations and that there is a real risk of harm if the applicant returns to Afghanistan.

149    The Tribunal then concluded (at [103]) that “subject to any successful Protection visa application” (our emphasis), FAK19 would be returned to Afghanistan, and there would be “a very real risk” he “will suffer significant harm if the cancellation decision is not revoked”. It concluded this “factor weighs heavily in favour of revoking the cancellation”. This is not the reasoning of a repository which does not understand the breadth and nature of the discretion, and the role that engagement of non-refoulement obligations might play in its exercise. The Minister is correct in his submissions on this point. The active engagement by the Tribunal in this issue, and its understanding of the role this factor can play in the exercise of a discretionary power where there is a choice to be made about whether there is “another reason” to revoke a visa cancellation, is underscored in the section of the Tribunal’s reasons containing its conclusions. At [127], the Tribunal found:

The most significant, in terms of weight, of the other considerations are the international non-refoulement obligations and the extent of impediments if removed. Both of these considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real risk of harm upon his return to Afghanistan.

150    There are other references to the non-refoulement finding in [127] and [128], although the Tribunal ultimately gives the primary considerations about protection of the Australian community greater weight. That was part of the evaluative task committed to it by the legislature and, while FAK19 contended that the Tribunal gave insufficient weight to the non-refoulement obligations owed in respect of him, no attack before the primary judge was made on the Tribunal’s ability to assign greater weight ultimately to its considerations about the protection of the Australian community.

151    Contrary to the reasoning of the primary judge, the Tribunal understood the matters set out at [29] and [30] of her Honour’s reasons. It did not err in the ways her Honour suggested at [58] and [59] of her Honour’s reasons, read with [56]. We accept the Minister’s submissions that the Tribunal’s observation at [103] that FAK19’s claims to non-refoulement might be “more fully explored” in a protection visa process do not indicate any error in circumstances where the Tribunal has made a clear and positive finding that Australia’s non-refoulement obligations are engaged by his circumstances and that he faces a serious risk of harm if removed. A fair reading of the Tribunal’s reasons does not justify too intense a focus on that sentence, and on a phrase within that sentence.

152    That leaves two further findings made by the primary judge. First, the finding at [61] that the Tribunal impermissibly deferred consideration of non-refoulement obligations by “shirking” speculation as to how any protection visa application made by FAK19 might “play out”, in light of the primary judge’s finding that s 501 would in FAK19’s circumstances likely “prevent” the grant of such a visa, pursuant to s 65(1)(a)(iii). We understand this to be a reference to her Honour’s view (see also [17] of her Honour’s reasons) that there would almost certainly be an unfavourable exercise of power under s 501(1) or (3), on “character” grounds, in relation to FAK19, because FAK19’s visa was cancelled under the mandatory power in s 501(3A).

153    This latter reasoning is not dissimilar to the reasoning we have set out earlier in these reasons at [126]-[129]. It also echoes the point we have made earlier that it is only the successful grant of a protection visa which, in substance, gives effect to Australia’s international non-refoulement obligations.

154    The difficulty in applying that reasoning to the Tribunal’s decision is that we do not agree, respectfully, with the primary judge that the Tribunal “deferred” its consideration in any way. The contrast with the Minister’s reasoning in CZW20 is stark. In its review reasons, the Tribunal engaged in fact finding about the existence of non-refoulement obligations to FAK19 and then weighed them in what it correctly characterised as an “evaluative” exercise. In the last sentence of its reasons at [127], the Tribunal was, in our opinion, merely reminding itself that any decision making in relation to a protection visa application had not occurred, and to that extent FAK19’s removal from Australia was not “certain”. A statement at that level of generality cannot be criticised. In the operative part of its reasoning at [128] however, the Tribunal took as its premise that an obligation to remove FAK19 would arise (bearing in mind s 197C as it then stood), and so the Tribunal needed to “grapple” with the prospect that FAK19 could be sent back to Afghanistan, and what that meant for him, including for his safety there. In that context, and in the choice the Parliament has reposed with it and not with this Court, it found

the primary considerations of protection and expectations of the Australian community outweigh any claims with respect to the other considerations including non-refoulement and the extent of impediments if removed.

155    At [129] the Tribunal elaborated on why, in its mind those primary considerations were the most determinative ones in FAK19’s review. It did not defer any substantive consideration; rather it confronted the likelihood of removal and serious harm, and found those matters outweighed by the matters referred to at [128] and [129]. The primary judge was in our respectful opinion incorrect in her findings at [61].

156    To this point, the Minister’s arguments supporting grounds 1 and 2 of the Notice of Appeal are correct. However, the Minister’s arguments in respect of the finding made by the primary judge at [60] of her Honour’s reasons should be rejected. To recap, that finding concerned the Tribunal’s failure to consider the consequences of any breach of non-refoulement obligations “for Australia”, rather than “for” FAK19.

157    We will describe that as the “executive dimension” of Australia’s non-refoulement obligations. It encompasses the fact that Australia has, solemnly and consciously, determined to assume such obligations under international law, the fact that both the Executive and the Parliament have continued to recognise these obligations, and finally that it can reasonably be assumed there may be a series of consequences for Australia as a nation (including reputational consequences, but not limited to them) if Australia contravenes those obligations by removing a person from Australia in circumstances where those obligations are engaged. The executive dimension is distinct and separate from the factual consequences which might flow for an individual who is removed to circumstances involving the risk of serious harm, in contravention of such obligations.

158    As a part of the executive government, the Tribunal was able to consider this matter, just as a Minister or a delegate might. The Minister did not seriously dispute the proposition that the Tribunal failed expressly to consider this aspect. Instead, the Minister submitted this aspect was not advanced by FAK19 or his representatives as a discrete reason for revocation. That submission should be accepted.

159    Rather than submitting that the Tribunal did not fail to consider the executive dimension expressly, the Minister submitted that in the language used by the Tribunal, and its references explicitly to international obligations, the Tribunal “should not be assumed to have ignored the international law dimension”. That submission stretches the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 to its outer limits, and in reality beyond them. The Tribunal’s reasons are commendably clear in other respects and there is no basis in its reasons, read fairly and as a whole, or in the surrounding circumstances, to infer it turned its mind to this aspect. Paragraph [103] of its reasons make it plain that the Tribunal actively engaged with the risk of serious harm to FAK19, as we have explained. There are no findings or even references, expressly or implicitly, to the executive dimension. The appropriate conclusion is that the Tribunal did not engage actively with this aspect.

160    We consider that this error is material in the sense explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.

161    The Minister submitted this aspect was not advanced to the Tribunal by FAK19 or his representatives as a discrete reason for revocation. That submission should be accepted. However, the transcript of the closing submissions before the Tribunal reveals a lengthy discussion between the Tribunal and counsel for both FAK19 and the Minister about the role that Australia’s non-refoulement obligations did or did not play in the Tribunal’s consideration of FAK19’s review application. The Tribunal was keen to understand what both parties said about how this factor should feature in its review of the non-revocation decision.

162    At [100] of its reasons the Tribunal explicitly found that “the applicant is owed non-refoulement obligations and that there is a real risk of harm if the applicant returns to Afghanistan”. His status as a person with such an entitlement was not in doubt. Indeed, the Minister conceded as much in his post-hearing communication to the Tribunal, which was in evidence on the appeal:

On the evidence before it, it would be open to the Tribunal to find that the applicant is a person in respect of whom Australia owes non-refoulement obligations. If the Tribunal so finds, the Minister accepts that this consideration would weigh in favour of revocation. Nevertheless, in balancing this other consideration against the primary considerations, the Minister maintains his submission that having regard to all the circumstances the Tribunal ought not be satisfied that there is ‘another reason’ to revoke the cancellation decision.

163    Proceeding from the Tribunal’s finding of a risk of serious harm to FAK19 as an individual were he to be removed to Afghanistan, in our opinion, once the executive dimension (including but not limited to the risk to Australia’s reputation in the international community) is taken into account as an additional factor, the balance on review might have altered.

164    It was for the administrative decision maker, not the Court, to determine what weight, if any, it should to attribute to these factors. Why such a factor might be assumed to be of such small weight as to be incapable of being material to the outcome is not self-apparent. There was nothing barring the Tribunal potentially reaching a different conclusion, especially when that factor is taken together with the Tribunal’s finding of risk of harm to FAK19 as an individual. We do not accept it to be inherently implausible that had the executive dimension of Australia’s international non-refoulement obligations been addressed by the Tribunal, it might not have altered the relevant calculus in the Tribunal’s decision making.

165    This not a factor at the periphery of decision making under the Migration Act. As we explain, both the Parliament and the Executive have continued to acknowledge Australia’s ongoing commitment to its non-refoulement obligations.

166    The Explanatory Memorandum for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), which introduced s 197C, stated:

1140.    The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances as set out in section 198 of the Migration Act.

1141.    This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen.

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

(Emphasis added)

167    In s 5 of the Migration Act, and by reference to s 197C, the phrase “non-refoulement obligations” is defined as:

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).

168    The Statement of Compatibility with Human Rights, which was Attachment A to the 2014 Explanatory Memorandum, provides (at 28):

Whilst on its face the measure may appear to be inconsistent with non-refoulement obligations under the CAT and the ICCPR, as set out in the overview to this Statement, anyone who is found through visa or ministerial intervention processes to engage Australia’s non-refoulement obligations will not be removed in breach of those obligations. There are a number of personal non compellable powers available for the Minister to allow a visa application or grant a visa where this is in the public interest. The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. This consideration is separate from the duty established by the removal power.

(Emphasis added.)

169    These statements were made in 2014. They clarify how Australia proposed to continue to honour the international obligations it had accepted under the CAT and the ICCPR, notwithstanding the passage of s 197C.

170    There is no suggestion the Executive has since repudiated Australia’s commitment to those obligations. Similar statements have been contained in all of the Ministerial Directions which have since been issued by the responsible Minister, of which Direction 79 was the applicable Direction to the Tribunal’s review. Clause 14.1(2) provides, in unqualified terms:

The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(Emphasis added)

171    Just as with other aspects of Direction 79 which deal with the “expectations of the Australian community”, it might be said it is just as much an expectation of the Australian community that the Executive will act conformably with Australia’s international obligations, particularly in circumstances where its own policy indicates an intention to do so. Revoking a visa cancellation is one way for that conformity to be achieved: it is not the only way, but it is one way.

172    Had the Tribunal considered the executive dimension of Australia’s non-refoulement obligations, there is no logical reason why that factor could not have had a material impact on the outcome of FAK19’s review. While the notion of legitimate expectations has since been repudiated, the reasoning of the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 remains good law insofar as it explains the significance of Australia’s entry into international treaty obligations. In Teoh at 291, Mason CJ and Deane J said

[R]atification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention.

(Footnotes omitted.)

173    As an administrative emanation of the Commonwealth there was nothing to prohibit the Tribunal from taking those considerations into account notwithstanding they cannot serve as a direct source of individual rights. The Minister advances no reasons as would entitle the Court to assume that the prospect of damage to Australia’s international reputation must be given so little weight as if it could not have influenced the balance of its considerations relevant to the outcome of FAK19’s review. Having regard to the nature of non-refoulement obligations and their role in international human rights jurisprudence, the statements by the Executive about their relevance to the decision making process undertaken by the Tribunal, and the incorporation of the concept into the Migration Act (albeit for particular reasons) we are unpersuaded that this factor should be assumed to be trivial or inconsequential. No such submission was advanced by the Minister. That is unsurprising given that in the Court below the Minister accepted that such an error, assuming it was made, would be material. The primary judge proceeded on that common position. In our view her Honour was correct to have done so.

174    The weight to be given to the executive dimension of Australia’s non-refoulement obligations was of course a matter for the Tribunal to decide. This Court cannot substitute itself in the undertaking of such an evaluative task. In undertaking an assessment on materiality, where there are reasonable and rational choices to be made in fact finding, it is not appropriate for the supervising court to attempt to place itself in the mind of the Tribunal, and speculate about what would or could have changed a particular Tribunal’s mind. To do so brings the court into the merits of the decision. Rather, the supervising court must assume a Tribunal acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction. See generally Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 at [67]-[68], Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [70]; PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 at [69]-[73].

175    On this review, the single member of the two person Tribunal whose views were by force of the AAT Act decisive, might well rationally and logically have reached a different conclusion as to the weight of this factor, together with the Minister’s concession as to the engagement of those obligations by FAK19’s circumstances, and the lack of challenge by the Minister to the evidence about the serious risk of personal harm to him. The other member of the Tribunal determined that the visa cancellation should be revoked. These circumstances in total are sufficient to conclude that FAK19 was deprived of the possibility of a different outcome on the review; or that without the Tribunal’s error, the review might have realistically resulted in a different decision, whichever formulation is preferred.

176     For these reasons, the Minister’s contentions based on grounds 1 and 2 of the Notice of Appeal cannot be accepted in their entirety. The finding by the primary judge at [60] of her Honour’s reasons is correct, and her Honour was correct to conclude this error was jurisdictional.

177    Ground 3 of the Notice of Appeal is to be rejected for the reasons set out earlier. Ali, Ibrahim and BCR16 all establish that errors of the kind found by the primary judge in CZW20, and in substance identified by the primary judge in FAK19, result in the repository of the power exceeding their jurisdiction, subject to any obvious issue of materiality.

FAK19: the Notice of contention

Ground 1 of the notice of contention

178    Ground 1 of the notice of contention relies on an alternative interpretation of the Tribunal’s reasons. This argument was expressed as ground 2 of the further amended application before the primary judge. Her Honour described the argument at [64] of her reasons, in a way that FAK19 did not criticise on the appeal:

It proceeds from an assumption that the Tribunal did consider the prospect of Australia breaching its international law obligations as a factor weighing in favour of revocation, but afforded that consideration less weight than it otherwise would have done because of its erroneous assumption that the existence of the obligation would be “more fully explored” in the course of deciding the anticipated protection visa application. It is submitted that it was irrational for the Tribunal to afford less weight to the consideration because its reasons for doing so reflected an erroneous understanding of the operation of the Act. More directly (and preferably) it was submitted that by affording less weight to the consideration the Tribunal proceeded on an incorrect understanding of the law.

179    The primary judge adopted a different interpretation; namely the one which led her Honour to uphold the first ground. On that, we have concluded that her Honour was in error. Therefore it is necessary to consider FAK19’s arguments on ground 1 of the notice of contention.

180    Despite her own conclusions, the primary judge also in fact dealt briefly with this argument. Her Honour held at [66]:

However, if I am wrong in my interpretation of the Tribunal’s reasons, I would accept that the reasons may be interpreted in the manner for which the applicant contends. If that be the correct interpretation I would accept the legal argument advanced on the second ground of review by reference to the same principles I have stated in relation to the first ground.

181    We take this to be a reference to her Honour’s findings on the conflation argument.

182    The first ground in the Notice of Contention should be rejected, essentially on the same basis we have set out earlier. The Tribunal’s reasons do not disclose any conflation of the operation of the protection visa regime with the manner in which the engagement of Australia’s non-refoulement obligations might affect the revocation power in s 501CA(4). We do not accept that, having found FAK19’s circumstances engaged Australia’s international non-refoulement obligations, the Tribunal gave “less weight” to this factor than it otherwise might have, because of a misunderstanding that “non-refoulement” might be considered during any protection visa process.

183    To the contrary, we consider that the Tribunal’s “note” in [103] of its reasons that “claims as to non-refoulement obligations will be more fully explored” during any protection visa process was extraneous to its central reasoning which was that FAK19’s circumstances did engage Australia’s non-refoulement obligations and that factor “weigh[ed] heavily” in favour of revocation of the visa cancellation. This “note” was also in our opinion no more than loose phrasing, an inapposite shorthand for the risks the Tribunal had itself identified and assessed, which the Tribunal in our opinion well understood would form the basis for any claims for the grant of a protection visa.

184    In our respectful opinion, on her alternative reasoning, her Honour erred in upholding ground 2 of the amended application before her. This argument does not provide a basis to support the orders made by the primary judge.

185    To this extent, ground 4 in the Minister’s Notice of Appeal should be upheld. As the Minister accepted in his written submissions (at footnote 7), ground 4 concerned an argument he raised “pre-emptively” in the Notice of Appeal, but which the Minister accepted was more properly to be considered in the context of the Notice of Contention. Rejection of ground 1 of the Notice of Contention thus involves acceptance that the Minister’s argument in ground 4 of the Notice of Appeal is correct. However, this conclusion does not result in the appeal being allowed, because we have agreed with one of the errors identified by the primary judge, and we have characterised that error as jurisdictional.

Ground 2 of the notice of contention

186    Considerably more time was spent by FAK19’s submissions on ground 2 of the notice of contention. Before the primary judge, FAK19 conceded that that ground could not succeed in light of the decision in BDQ19 v Minister for Home Affairs [2019] FCA 1630, but reserved his position. The contention was re-agitated on the appeal after the Full Court decision in WKMZ, specifically the reasons for judgment of Kenny and Mortimer JJ. The Minister did not object to FAK19 reviving this argument. However, this is a pure contention and has no connection with a ground of appeal. Given that we have decided to dismiss the Minister’s appeal, it is not necessary for the Court to consider the argument based on WKMZ.

Conclusion

187    The Minister’s appeal in CZW20 must be dismissed.

188    We have rejected FAK19’s first ground in his Notice of Contention. The second ground need not be considered. Although we have agreed with several of the Minister’s arguments in grounds 1 and 2 of the his Notice of Appeal about the reasoning of the primary judge, we have upheld one error which her Honour identified in the Tribunal’s reasoning, and we have concluded that error is jurisdictional in character. We have also rejected the Minister’s arguments about Ali, Ibrahim and BCR16. Therefore, the appropriate order is that the Minister’s appeal in FAK19 be dismissed.

189    The parties in each appeal will be given an opportunity to agree on appropriate costs orders, or failing agreement, the question of costs will be referred to a Registrar for determination, by way of a lump sum.

Associate:

Dated:    23 August 2021